This article is written by Deepali Kasrekar, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. Show Table of Contents IntroductionHave you ever imagined what happens if a person tries to demolish or infringes your property? What are the possible claims you can ask from the competent court to stop the demolition or infringement of your property? In law under civil trial, an Injunction is an order which can be passed by a court against one or more of the parties to refrain from doing, or less commonly to do, some specified act or acts. If a person moves to the Competent Court for seeking an Injunction Order does the Court grant all the claims of that person as granted by the Court? However, the process of granting an Injunction is to alter or maintain the “status quo” which completely depends upon the circumstance or grievances of the case. Parties to the case can grant Temporary, Permanent, or Mandatory Injunction. However, it is not a right of the parties but Injunction is one of the remedies which can be granted by the Competent Court on the equitable principle and the decision is discretionary one. Let us check what exactly the word Injunction means under the Specific Relief Act and procedure to be followed under Civil Procedure Code. Injunction – meaning and objectAn Injunction is an equitable remedy which is “a judicial process that compels a party to refrain from doing or to do a particular act or thing”. If any person disobeys the Order of Injunction passed by the Competent Court then there can be stiff monetary penalties and even imprisonment in certain instances. The primary purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated. However, Injunction can also be modified or dissolved if circumstances change in future. Section 94, 95 and Order 39 of the Civil Procedure Code precisely talks about the Injunctions and whereas, the temporary and perpetual injunctions are defined under section 36 to 42 of the Specific Relief Act. Kinds of injunctionInjunctions are given in many different kinds of cases. They can prohibit future violations of the law, such as trespass to real property, infringement of a patent, copyright or trademark etc. However, the Competent Court consider the duration and stage and accordingly grant the various types of Injunctions as follows:
For Example: A and B are residing in the same Society. B wanted to trespass the A premises unlawfully. A claim before competent court for Injunction to direct B that “B should not enter A premises”. Telling not to do a certain kind of act is a Prohibitory Injunction.
Example: “A” a tenant, without the permission of the Landlord has built a garden terrace which is an addition to the rented house. According to the leave and Licence agreement, “A” has to take prior permission of the Landlord to do any type of alterations/addition/changes to the rented house. So here “B” may seek a mandatory injunction to demolish the garden terrace which “A” has built without the permission of the Landlord. So basically, Mandatory Injunctions are sometimes availed of as reliefs in the nature of ‘quia timet’, that is, in a proper case, mandatory injunction may be granted when there is a threat of infraction of the plaintiff’s right before the infraction has actually occurred.
For example: “A” has rented his Flat to “B” who is a tenant, and ‘B’ has failed to pay the rent since the last 2 months. ‘A’ may request the court to grant an injunction against the tenant’s continued use of the property and ask for eviction from A’s property. Another example: “A” a father in a Hindu family intended to alienate the family property. B, C, and D, the legal heirs of A. B filed an injunction suit against A wherein A was restrained from alienating the family property more than his own share. It is not necessary for the B to wait until the waste (damages to house/property) is actually committed to bring an action for injunction but is sufficient if such an intention is expressed by the A.
Temporary injunction is an interim remedy that is raised to reserve the subject matter in its existing condition and which may be granted on an interlocutory application at any stay of the suit. Its purpose is to prevent the suspension of the plaintiff’s rights. Section 94 of the CPC provides the supplemental proceeding so that Plaintiff can prevent this right, wherein Section 94 (c) and (e) of Code of Civil Procedure, the Court may grant a temporary injunction or make such other interlocutory orders. These are temporary injunction because its validity is until the further order passed by the court or until the final decree of the case. Further the ad-interim injunction is granted during the pendency of the application and operates till the disposal of the application. In Ramrameshwari Devi vs. Nirmala Devi and Ors. Civil Appeal No. 49/2011 – the Supreme Court held that, the Court should be extremely careful and cautious while granting ex-party ad interim injunctions or stay orders. Ordinarily a short notice should be issued to the Defendant/Respondent and only after hearing both the parties concerns Court can pass the appropriate orders. Who may apply for temporary injunction and against whom injunction may be issuedAn application for interim injunction along with affidavit may be made both Plaintiff or Defendant. Order 39 Rule (1) a, any party to the suit can apply for a Temporary Injunction. An Injunction may be issued only against a party and not against a stranger or third party. Further, the injunction cannot be issued against the Court or Judicial Officers. What are the basic principles of temporary injunctionGranting the temporary injunction is the exercise of the discretion which should be in judicial manner. No hard and fast rule can be laid down for guidance of the court to that effect. Therefore it is well settled that, before granting the Temporary Injunction, the Judge has to consider whether the Application is falling into below-mentioned categories/ has Plaintiff shown following points:
Let us understand the meaning and how all the basic ingredients are identified in below mentioned cases laws;
In Martin Burn Ltd vs. R.N.Banerjee 1958 AIR 79 SCR 514, – The Supreme Court held that a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence led in support of the same were believed. It does not involve the determination of the conflict of evidence or complex questions of fact and law, which call for detailed arguments. It further requires that the Plaintiff should come before the Court with clean hands. If he suppresses material facts and evidence then he is not entitled for the relief of injunction and further points of balance of convenience, irreparable injury need not be considered in such case. In Prakash Singh vs. State of Haryana, 2002 (4) Civil L.J.71 (P.H.) – The Court has explained that Prima Facie does not mean that a Plaintiff/Applicant should have a full proof case in his favour which will succeed in all probabilities. It means that the plaintiff/applicant has a case which cannot be rejected summarily or dismissed out right. It raises consideration which can be considered on merits. In Orissa State Commercial Transport Corporation Ltd. Vs. Satyanarayana Singh – It was held that it is sufficient to show that the Plaintiff/Applicant has a fair question as to the existence of his right and it is necessary to maintain status quo till the matter is finally decided.
The expression irreparable injury however does not mean that there should be no possibility of repairing the injury. It only means that the injury must be a material one. i.e. which cannot be adequately compensated by damages. An injury will be regarded as irreparable where there exists no certain pecuniary standard for measuring damages. The Supreme Court in Shanti Kumar Panda v. Shakuntala Devi, 03.11.2003, where the court held thus: ‘At the stage of passing an interlocutory order such as on an application for the grant of ad interim injunction under Rule 1 or 2 of Order 39 of the CPC, the competent Court shall have to form its opinion on the availability of a prima facie case, the balance of convenience and the irreparable injury __ the three pillars on which rests the foundation of any order of injunction. In Best Sellers Retail India (P) Ltd. vs. Aditya Nirla Nuvo Ltd. – (2012 ) 6 SCC 792 – the Hon’ble Supreme Court held that only prima facie case alone is not sufficient to grant injunction and the Court held that – “Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable.”
In Bikash Chandra Deb vs Vijaya Minerals Pvt. Ltd.: 2005 (1) CHN 582, the Hon’ble Calcutta High Court observed that issue of balance of convenience. The Court shall slender in favour of overview of the concept of balance of convenience, but does not mean and suggest that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be a one-sided affair. In Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341 it was held that ‘Balance of convenience means comparative mischief or inconvenience. It can be likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to consider the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted.’
Ground for granting temporary injunction from courtUnder Section 95 of CPC, it is specifically mentioned that the temporary injunction may be granted in any suit wherein the Court is satisfied that there are sufficient grounds to grant the temporary injunction. If the Plaintiff fails to prove the sufficient grounds in his application then the Court may pass the suitable compensation to the defendant, in case the Defendant is claiming in his application. Section 95 read with Order 39 Rule 1 and 2 empowers the Court to pass the temporary injunction:
Temporary Injunction when cannot be granted
ConclusionIn view of the aforementioned, it can be determined that grant of temporary injunction cannot be requested by the party as a matter of right nor can be denied by the Court arbitrarily. The injunction is an equitable remedy and attracts the application of the maxim “he who seeks equity must do equity”. The Court has complete discretion to grant an injunction or to refuse it. The discretion to be exercised by the Court is shown by the principles mentioned hereinabove and depends on the facts and circumstances of each case. The relief cannot be claimed as an affair of right however worthwhile the applicant’s case may be. The power to grant an injunction must, therefore, be exercised with the utmost prudence, vigilance, and care. Referenceshttps://www.britannica.com/story/what-is-an-injunction last visited on 14.07.2020 https://indiankanoon.org/doc/183635/ last visited on 14.08.2020 Code of Civil Procedure by S.C.Sarkar and P.C. Sarkar, 12th edition https://indiankanoon.org/doc/951956/ last visited on 14.08.2020 Last visited on 13.08.2020 last visited on 13.08.2020 https://indiankanoon.org/doc/337165/ last visited on 13.08.2020 https://indiankanoon.org/doc/130617577/ last visited on 13.08.2020 https://indiankanoon.org/doc/1741961/ last visited on 13.08.2020 https://indiankanoon.org/doc/2409/ last visited on 13.08.2020 CPC Approach of Trail Court by Adv. S.L. Deshpande and Adv. Jayant Jaibhave, edition 2016 http://mja.gov.in/Site/Upload/GR/Title%20NO.119(As%20Per%20Workshop% 20L is t %20title%20no119%20pdf).pdf last visited on 18.10.2020 Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills. LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: |