INTRODUCTION (Section 94 & 95 R/W Order XXXIX)
An injunction is a restraining writ issued by a court at the request of a party plaintiff,
directed to a party defendant in action, or a party made a defendant for that purpose,
barring the other from doing something, or allowing his servants or agents to do
something, that he is threatening or trying to do, or restraining him from continuing to do
something, that is unjust and unfair, harmful to the Plaintiff, and unable to be effectively
redressed.
An “Injunction” is an impartial solution which is “a judicial process that compels a party
to refrain from doing or to do a particular act or thing”. If any individual violates the
Order of Injunction approved by the Competent Court, then there can be harsh financial
punishments and even detention in some cases. The main objective of giving interim
relief is the protection of property in disagreement till lawful rights and contradictory assertions of the parties prior to the court of law are resolved. Injunction can also be
altered or suspended if conditions shift in future. Section 94, 95 and Order 39 of the Civil
Procedure Code exactly talks about Injunctions but, the temporary and permanent
injunctions are well-defined under Section 53 to 57 of the “Specific Relief Act”.
KINDS OF INJUNCTION
Injunctions 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:
1. Prohibitory Injunction:
The Competent Court can grant the Prohibitory Injunction
to restrains or forbid a person from doing some act i.e. the order is passed as not to
do any act. Prohibitory Injunction is also known as preventive or restrictive
Injunction.
For Example:
A and B are residing in the same Society. B wanted to trespass the A
premises unlawfully. A claim before a 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.
2. Mandatory Injunction:
The Competent Court can grant the Mandatory Injunction
to do some positive act or compels, commands or orders some person to do
something in a particular manner. Section 39 of Specific Relief Act, 1963 does not
define but categorically deals with the grant of Mandatory Injunction.
In mandatory Injunction two elements has to be taken into consideration before granting
Mandatory Injunction:
● There must be an obligation on the part of the defendant to perform certain acts,
the breach of which obligation, must be alleged by the plaintiff.
● Relief must be enforceable by the court.
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 infringement of the plaintiff’s right before the infraction has
actually occurred.
3. Permanent or Perpetual Injunctions:
Perpetual/Permanent Injunctions is granted by
the courts to restrain the party forever from doing the act complained of. However,
this perpetual or permanent injunction can only be granted after final hearing and
decree has been passed by the court and this is completely decided on the merits of
the case. Permanent or Perpetual Injunctions are governed by section 54 and 55 of
Specific Relief Act, 1963. It determines the rights and liabilities of the parties
finally.
For example:
“A” has rented his Flat to “B” who is a tenant, and ‘B’ has failed to pay the
rent for 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.
4. Temporary Injunction:
The temporary Injunction is been granted by the Court
when the Defendant is about to the make some injury to the property of the
Plaintiff or threatens the Plaintiff to dispossess the property or creates a thirty
party interest in the property, then in such situation, the Court may grant a
temporary injunction to restrain the Defendant to do such an act or make other
order to prevent the dispossession of the plaintiff or prevent the causing of injury
to the plaintiff in relation to any property in dispute or creating any thirty party
rights in the property.
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, whereas 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
injunctions 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.
WHO MAY APPLY?
Application for interim injunction along with affidavit can be made both by Plaintiff and
Defendant.
An Injunction can be made only against a party and not opposed to a stranger or third
party. Additionally, the injunction cannot be made against the Court of Law or the
Judicial Officers.
Basic Principles of Temporary Injunction
The granting of temporary injunction is the practice of the judgment which must be in a
judicial manner. Consequently, it is well resolved that, prior to awarding the Temporary
Injunction, the Judge must contemplate whether the Application is falling into below mentioned classifications:
Is it a Prima Facie case:
In every single application, the Applicant or Plaintiff should
make a prima facie argument in favor of the claimed right by the Plaintiff. The Court
must be satisfied that there is a bona fide disagreement between both the parties in which
the inquiry is needed. The Plaintiff must prove and appease the court by prominent
evidence or witness and make a prima facie case in his favor. The plaintiff must come to
Court with relevant facts and in case these facts are suppressed by the Plaintiff then, in
this scenario, the Plaintiff is not accountable for any relief
Is there any Irreparable Injury:
The claimant must convince the court that he will
endure severe injury if the injunction is not given. The Court is convinced that the
Plaintiff needs to be safeguarded from the effects of apprehended damage. An injury will be regarded as severe in which there is no specific economic standard for assessing
losses.
The term irreversible injury however does not imply that there would be no chance of
fixing the injury. It only indicates that the damage must be a significant one. i.e., which
cannot be sufficiently reimbursed by damages. An injury will be considered as
irreversible where there is no specific monetary standard for assessing injuries.
Is there any Balance of Convenience:
The Claimant must demonstrate in this
application that the sense of balance of accessibility is in his favor i.e. the relative
mischief, difficulty or hassle which is expected to be caused to the Applicant if that
injunction is refused. The balance of accessibility comes into the light when there is
uncertainty as to the sufficient remedies in reparations offered to either party or both.
Other factors:
The Court also considers some other factors before granting injunction.
The relief of injunction may be refused on the ground of delay, laches or acquiescence or
whether the applicant has not come with the clean hands or has suppressed material facts,
or where monetary compensation is adequate relief.
Grounds for Granting Temporary Injunctions from Court
Under 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:
● When there is a reasonable apprehension and danger of alienation or disposal of
property by any party to the suit or by wrongful waste of the property; or
● When there is an apprehension of alienation or disposal of the property to defraud
creditors; or
● Where Defendant threatens to dispossess the Plaintiff or otherwise causes injury to
the interest of the Plaintiff or otherwise causes injury to the interest of Plaintiff in
relation to the disputed property; or
● When the Defendant is about to commit a breach of contract; or
● Any other injury is likely to be caused or likely to be repeated; or
● Where the Court is of the opinion that for protection of interest of any party to the
suit or in the interest of justice injunction or stay is required and necessary.
Temporary Injunction when cannot be granted
● To restrain any person from prosecuting a judicial proceeding at the institution of
the suit, in which injunction is sought, unless restraint is necessary to prevent
multiplicity of proceedings.
● to restrain any person from instituting or prosecuting any proceeding in a Court
not subordinate to that, from which injunction is sought.
● to restrain any person from applying to any legislative body,
● to restrain any person from instituting or prosecuting any proceeding in a criminal
matter,
● to prevent the breach of a contract the performance of which could not be
specifically enforced.
● to prevent on the ground of nuisance, an act of which it is not reasonably clear that
it will be a nuisance.
● to prevent a continuing breach in which the plaintiff has acquiesced,
● when equally efficacious relief can be certainly be obtained by any other usual
mode of proceeding except in case of breach of trust,
● when conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance of the Court.
● when the plaintiff has no personal interest in the matter.
Consequences of disobedience/breach of an injunction :
If Rule 1 and Rule 2 of Order 39 are not complied then:
● Property of guilty be attached.
● Detention in civil prison not exceeding 6 months.
● Limit of attachment, Not more than 1 year.
● If disobedience or breach continues – Property may be sold.
Ex-parte Injunction:
Rule 3 of O-39 requires that the applicant to issue a notice to the opposite party before an
injunction is granted. Though the court has the power to grant an ex-parte injunction
without issuing a notice or granting a hearing to the party, who will be affected by such
order, the said power is to be exercised sparingly and under exceptional circumstances;
● Whether irreparable or serious mischief will be ensured to the plaintiff.
● Whether the refusal of an ex-parte injunction would involve greater injustice than grant of it would involve.
● The court will also consider the time at which the plaintiff first had notice of the
act complained of so that the making of an improper order against a party in his
absence is prevented.
● The court will consider whether the plaintiff had acquiesced for some time and in
such circumstances, it will not grant an ex-parte injunction.
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