By Saif Rasul Khan, Government Law College, Mumbai.

The law of injunction in India has its origin in the Equity Jurisprudence of England from which we have inherited the present administration of law. The injunction is an equitable remedy,[1] that is, a remedy that originated in the English Courts of Equity. An injunction is a “judicial process whereby a party is required to do, or refrain from doing, any particular act”. It is a remedy in the form of an interim order/decree 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).  The Gujarat High Court stated, While considering an application for injunction, it is well-settled, the courts would pass an order thereupon having regard to: (i) Prima facie (ii) Balance of convenience (iii) Irreparable injury. A finding on prima facie case would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out, but also other factors requisite for grant of injunction exist”[2]. The Supreme Court in, Shanti Kumar Panda v. Shakuntala Devi[3], held that, “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.”

While the Specific Relief Act deals with perpetual & mandatory injunctions, the Code of Civil Procedure deals with temporary injunctions. It has been termed as a preventive relief, which is granted at the discretion of the Court by injunction that may be temporary or perpetual.

TEMPORARY INJUNCTION

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An injunction is a judicial process whereby a party is required to do or to refrain from doing any particular act. Temporary injunction is a mode of granting preventive relief by the court at its discretion. A temporary injunction is also known as interim injunction.  According to Section 37 of the S. R. Act, temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period of a suit and are regulated by the Code of Civil Procedure, 1908. Thus, temporary injunction is regulated under the provisions of Rules 1-5, Order 39 of the Code of Civil Procedure, 1908.

According to Order 39 Rules 1& 2 of the CPC, the Court in the following cases may grant temporary injunction:

  • where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or;
  • where the defendants threatens, or intends to remove or dispose of his property with a view to defrauding his creditors; or
  • where the defendants threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property  in dispute in the suit; or
  • where the defendant is about to commit a breach of contract, or other injury of any kind; or
  • where the court is of the opinion that the interest of justice so requires.

As per Order 39, Rule 3, before granting the injunction, the opposite party must receive a notice of the same, unless the purpose of granting the injunction would be defeated by the delay. Further, Rule 4 states that an order may be discharged, varied or set aside by the court on application made by a party. However, the alteration can be made in certain circumstances, as provided in the proviso.

PERPETUAL INJUNCTION

According to Section 38 of the Specific Relief Act, a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from assertion of a right, or from the commission of an act that would be contrary to the rights of the plaintiff. According to Section 38 of the Specific Relief Act, subject to the other provisions contained in, or referred to by the Chapter-VIII of the Specific Relief Act, a perpetual injunction may be granted to prevent the breach of obligation existing in favour of the applicant, whether expressly or by implication. When such obligation arises from a contract, the court shall be guided by the rules and provisions contained in the Chapter II of the Specific Relief Act, related to:

  • Contracts which may specifically be enforced; and
  • Contracts which cannot specifically be enforced.

When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases[4], namely:-

  1. Where the defendant is trustee
  2. If there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
  3. If invasion – that compensation in money would not afford adequate relief;
  4. To prevent a multiplicity of judicial proceedings.

Injunction is a discretionary remedy, and the Court will not grant it if there is another equally efficacious remedy is available to the Plaintiff. Therefore, through Section 41 of the S.R. Act, certain circumstances have been enumerated where the Court shall not grant Injunction. The plaintiff, in addition to Injunction, may also claim damages under section 38, or under section 39. For this purpose, the plaintiff has to specifically claim damages in his plaint, if the same has not been specifically claimed, the Court may allow the plaintiff to amend his pleadings at any stage of a suit, and pray for damages. The dismissal of a suit is bar to claim damages. The Court shall not grant Injunction under the following circumstances:[5]

  1. From instituting or prosecuting civil or criminal
  2. From applying to any legislative body;
  3. To prevent the breach of a contract the performance of which would not be specifically enforced;
  4. To prevent, on the ground of nuisance, when such act is not reasonably clear that it will be a nuisance;
  5. To prevent a continuing breach in which the plaintiff has acquiesced;
  6. When efficacious relief is available
  7. To disentitle any person to the assistance of the court;
  8. When the plaintiff has no personal interest in the matter.

Thus, the primary purpose of granting interim relief is the preservation of property in dispute until the legal rights and conflicting claims of the parties before the court are adjudicated. The Court has  the discretion to grant or reject the Injunction, but the Court shall not use its discretion arbitrarily, rather it has to exercise its discretion as per the guidelines contained in Section 20 of the Specific Relief Act. Temporary injunctions are provisional in nature and do not conclude any rights between the parties, while perpetual injunction is in a form of a decree. Temporary injunctions continue until a specified time, or until further orders of the Court, and may be granted at any stage of the suit or proceedings, whereas, a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit. For obtaining Temporary Injunction, an Application under Order 39 Rule 1/2 has to be filed, whereas for obtaining Perpetual Injunction, a fresh suit has to be filed.

[1] Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982).

[2] Vishal vs Kataria, Gujarat High Court , Appeal No. 4288 of 2009, decided on 27 January, 2010.

[3] Shanti Kumar Panda v. Shakuntala Devi, Supreme Court, Appeal (Civil) 10906 of 1996, decided on November 03, 2003.

[4] Section 38, Specific Relief Act, ‘Perpetual Injunction when granted’.

[5] Section 41, Specific Relief Act, 1963

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