I. MEANING & PURPOSE OF INJUNCTION
An injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is a remedy in the form of an order of the court addressed to a particular person that either prohibits him from doing or continuing to do a particular act (prohibitory injunction) or orders him to carry out a certain act (mandatory injunction).
It is in the nature of preventive relief to a litigant to prevent possible injury. In other words, the purpose of granting ad interim injunction is to protect the subject matter of the suit in the status quo for the time being. In Shiv Kumar v. Municipal Corporation of Delhi (1993) 3 SCC 161, the Supreme Court held that 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.
II. TYPES OF INJUNCTION
A. Injunctions are of two kinds -
1. Temporary/Interim Injunction
2. Permanent Injunction
Temporary or interim injunction restricts a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until further order of the court. It is regulated under the provisions of Order XXXIX of CPC and may be granted at any stage of the suit.
Permanent injunction stops a party forever from doing the specified act and can be granted only on the merits at the conclusion of the trial after hearing both the parties to the suit. It is governed by Section 38-42 of the Specific Relief Act,1963.
Injunctions can also be:
Preventive, prohibitive or restrictive injunction prevents or prohibits a person from doing a particular act.
Mandatory injunction directs or commands a person to do something.
III. GROUNDS OF TEMPORARY INJUNCTION
Order 39 Rule 1 provides that Temporary Injunction may be granted by court in the following situations
1. Property in dispute is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of decree.
2. Where defendant: threatens or intends to remove or dispose of his property with a view to defraud creditors.
3. Where defendant: threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the property in dispute
4. Defendant is about to commit breach of peace or contract or otherwise (order 39 rule 2).
5. Where the court is of opinion that interest of justice so require.
In Manohar Lal vs Seth Hira Lal AIR 1962 it was held that even if the case is not covered on grounds of order 39, temporary injunction can be granted in exercise of inherent powers Under Section 151 of CPC.
IV. GUIDING PRINCIPLES FOR TEMPORARY INJUNCTION
The case of Dalpat Kumar And Another vs. Prahlad Singh AIR 1993 SC 276 has settled the four main requirements for granting a temporary injunction. They are:
1) Prima facie case is in the favour of the plaintiff and against the defendant;
2) Irreparable injury is likely to be caused to the plaintiff which cannot be compensated for in terms of money;
3) Balance of convenience lies in favour of the plaintiff and against the defendant;
4) The conduct of the plaintiff should be fair and honest.
For proving all the aforesaid points, the burden is on the plaintiff praying for the relief. Mere proof of one of these conditions does not entitle a person to an order of temporary injunction.
Prima Facie Case
The court must be satisfied that the applicant has a prima facie case to go to trial
i.e. there is a possibility of the plaintiff getting relief asked for by him. It is not necessary that the plaintiff should establish his title to the property in suit. It is enough for him to show that he has a fair question or seriously arguable question to raise as to the existence of the right which he alleges and can satisfy the court that the property in dispute should be preserved in its present actual condition until such question can be disposed of. The court should not examine the merits of the case closely at that stage, but it is to be guided by the plaintiff’s case as revealed in the plaints, affidavits, etc.
Irreparable Loss
Before the granting of the temporary injunction, the court has to satisfy itself that the failure to grant the temporary injunction is likely to inflict upon the plaintiff the loss or injury which cannot be compensated in terms of money and that there is no other remedy available except the injunction and he needs the protection from the consequences of apprehended injury or dispossession.
In Triloki Nath vs. Ganesh Prasad, 1995 All. C.J. 930, the court held that irreparable injury does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be subsequently compensated by way of damages. If the loss, which is likely to be caused to the plaintiff in the case of failure to grant of injunction, can be compensated in terms of money, injunction as a matter of course should not be allowed.
Balance of convenience
The court will first see that there is a bonafide contention between the parties and then on which side, in the event of success of the main suit for permanent injunction, will lie the balance of convenience if the temporary injunction is not issued. For granting the interim injunction the balance of convenience must be in favour of the applicant.
In considering an application under Order 39, Rule 1 and 2, the court cannot exclude considering of the ‘balance of convenience and inconvenience’ of the parties. Where the court has granted temporary injunction without considering the mutual prejudice of the parties and the other necessary elements required by law to be considered, the exercise of jurisdiction by the court would be deemed to be materially irregular and the order would be open to challenge in revision.
Plaintiff’s conduct
In M/s. Gujarat Bottling Co. Ltd. Vs Cola Co. AIR 1995 SC, it was held that as the relief by injunction is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of affairs complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an injunction order under Order 39, but also in respect of the person approaching the court for vacating ad-interim injunction order already granted in the pending suit or proceeding.
V. CONSEQUENCES OF DISOBEDIENCE OR BREACH OF AN INJUNCTION
Order 39 Rule 2-A provides the consequences of disobedience or breach of injunction -
1. Detention in civil prison not exceeding 3 months.
2. Property of the party at default be attached.
3. Limit of attachment: Not more than 1 year.
4. If disobedience or breach continues – Property may be sold.
Rule 2-A was inserted in the Code by 1976 Amendment, before that the law of contempt of court was applied for the purpose. The effect of temporary injunction is not to make a subsequent alienation of the property void. Any mortgage or sale of property by a party in contravention of an injunction is not illegal and void. The only penalty that the person disobeying the order of injunction incurs is that prescribed by Rule 2-A.
In Ram Prasad Singh vs Subodh Prasad Singh , it was held by the court that a person is liable to be proceeded against O39, R2-A,CPC even if he was not personally a party to the suit provided he is known to have been agent or servant of the defendant and to have violated the order of injunction in spite of knowledge that there was such an order.
VI. EX-PARTE INJUNCTION
Rule 3 of Order 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.
In Morgan Stanley vs. Kartick Das, (1994) 4 SCC 225 (241-242), the Supreme Court indicated the following factors which should weigh with a court in the grant of an ex-parte Injunction -
1. Whether irreparable or serious mischief will ensure to the plaintiff.
2. Whether the refusal of an ex-parte injunction would involve greater injustice than grant of it would involve.
3. 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.
4. The court will consider whether the plaintiff had acquiesced for some time and in such circumstances, it will not grant an ex parte injunction.
5. General principle like prima facie case, balance of convenience and irreparable loss would also be considered by the court.
VII. DISCHARGE AND VARIATION OF ORDER OF INJUNCTION
Order 39 Rule 4 lays down that any order for an injunction may be discharged or varied or set aside by the court on an application made thereto by any party dissatisfied with such order
It is further provided that if an application for temporary Injunction, or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a particular matter and the injunction was granted without giving notice to the opposite party, the court must vacate the injunction unless for the reasons to be recorded, it considers that it is not necessary so to do in the interests of justice. Moreover, if an order for an injunction has been passed after giving to a party an opportunity of being heard, the order is not to be discharged, varied or set
aside on the application of that party, except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the court is satisfied that the order has caused undue hardship to that party.
VIII. INJUNCTION ON CORPORATIONS
Order 39 Rule 5 says that an injunction directed to a corporation is binding not only on the corporation itself, but also on all the members and officers of the corporation whose personal action it seeks to restrain.
IX. TEMPORARY INJUNCTION: DURATION
Temporary injunction granted by the court pendente lite (till the disposal of the suit) comes to an end when the suit is finally decided. If the suit is dismissed, injunction is vacated. Even if the suit is decreed, temporary injunction comes to an end. If the suit is for permanent injunction, temporary injunction granted by the court is made perpetual or permanent as a part of decree passed by the court.
X. GROUNDS OF REJECTION OF TEMPORARY INJUNCTION
The instances when a temporary injunction can be rejected are highlighted in Section 41 of the Specific Relief Act, 1963.
• 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 certainly be obtained by any other usual mode of proceeding except in case of breach of trust.
• When the 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.