Lucknow, UP, India, 226028

TYPES OF INJUNCTION LAWS IN INDIA

Injunction

INTRODUCTION

An Injunction is defined as a prohibitive writ issued by a Court of equity, at the suit of a party complainant, directed to a party defendant in the action, or a party made a defendant for that purpose forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is threatens or attempts its commission, or restrains him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action at law.[1]

An injunction is an order or judgment by which a party to an action is required to do or refrain from doing a particular thing.[2]

Hon’ble Rajasthan High Court in State of Rajasthan and Ors. V. Rao Dhir Singh and Ors., defined injunction in simpler words as “a specific order of Court forbidding the commission of a wrong threatened or the discontinuance of a wrongful course of action already begun.”[3]

In India, the Specific Relief Act, 1963, and Code of Civil Procedure, 1908 governs the law of injunction.

TYPES OF INJUNCTIONS

In India, there are generally 2 types of injunctions are followed:-

  1. Temporary Injunction
  2. Permanent Injunction
  3. Temporary Injunction

Section 37(1) of the Specific Relief Act, 1963 says that temporary injunction is such as are to continue until a specific time, or until the further order of the Court and the Court may grant such temporary injunction any stage in the suit. The provision of the temporary injunction is regulated by the Code of Civil Procedure, 1908.

In the Code of Civil Procedure, 1908, Section 94 and 95 as well as Order 39 regulates the provision of a temporary injunction.

Section 94: Supplemental Proceedings

Section 94 enables the Court of Law to prevent the ends of justice from being defeated.

Section 94(c) of the Code states that to prevent the ends of justice from being defeated the Court may if it is so prescribed grant a temporary injunction and in case of disobedience, the Civil Court may commit the person guilty thereof to civil prison and order his property to be attached and sold.

Section 94(e) of the Code says that to prevent the ends of justice from being defeated the Court may if it is so prescribed make such other interlocutory orders as the Court thinks to be just and convenient.

Section 95

This section states that if the Court finds that there were no sufficient grounds to grant the injunction, or the plaintiff is defeated in the suit, the court may award reasonable compensation to the defendant if he applies for such compensation.

Order 39, Rule 1

Rule 1 of Order 39 of Code of Civil Procedure lays down the situations in which a Court may grant a temporary injunction-

  1. Where any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party of the suit, or wrongfully sold in execution of the decree.
  2. Where the defendant threatens or intends, to remove or dispose of his property to defraud his creditors.
  • Where the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff with any property in dispute in the suit.

Order 39, Rule 2

 Rule 2 of Order 39 provides that the Court may grant a temporary injunction restraining the defendant from committing the breach of contract or causing injuries of any other kind to the plaintiff.

In the case Satya Prakash v. 1st Additional District Judge, Etah, the Hon’ble Allahabad High Court said, “the power conferred under Or. 39, R. 1, CPC in granting or refusing temporary injunction is discretionary which is to be exercised per reasonable and sound judicial principles.”[4]

Order 39, Rule 3

 Rule 3 of Order 39 states that before the grant of an injunction to the plaintiff, the Court shall direct notice to the opposite party, but if it seems to the Court that the purpose of the injunction is defeated due to delay, the Court may not provide the notice.

Order 39, Rule 4

Rule 4 of Order 39 states about the order for a temporary injunction be discharged, varied, or being set aside by the Court when the party to whom the order is being made is dissatisfied with such order.

Order 39, Rule 5

Rule 5 of Order 39 says that an injunction that has been directed to a corporation is a binding to that corporation as well as its officers, members whose personal actions it seeks to restraint.

REQUISITES FOR GRANT OF AN INJUNCTION

For Court to grant a temporary injunction there should be following requisites which must be fulfilled:-

  1. Prima Facie Case
  2. Balance of Convenience
  3. Irreparable Injury
  • Prima Facie Case

The term ‘prima facie’ is a Latin term meaning ‘at first sight’ or ‘at first appearance’.

In Antaryani Dalabehera v. Bishnu Charan Dalabehera, the Court said explains that the prima facie case means that a petitioner need not fulfill his case on merits at the stage of hearing on an application for an injunction, but it would be sufficient for him to show that he has a fair question to raise as to the existence of his right till the question is riped for trial/disposal of the case.[5]

This means for the grant of an application for a temporary injunction, the petitioner at first must fulfill the condition that his case at the first sight must constitute a sufficient question.

It is to note that it is a must for the plaintiff to constitute a prima facie case to be eligible for obtaining a temporary injunction. However, it is not the only condition that an application for temporary injunction needs to fulfill.

  • Irreparable Injury

The existence of the prima facie case alone doesn’t entitle the applicant to get a grant for a temporary injunction. To get the order for a temporary injunction to be granted, the applicant must satisfy the Court that he will not suffer irreparable injury if the application for a temporary injunction is not granted and he has no remedy open to him through which he could protect himself from the consequences of the injury apprehended.

  • Balance of Convenience

In Anwar Elahi v. Vinod Misra and Anr., the Court described that besides ‘prima facie’ the plaintiff must prove that the balance of convenience also lies in his favor. The Court further describes the condition ‘balance of convenience’ that it means “comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which would arise by granting it.” Further, the Court stated that “in applying this principle, the Court has to weigh the amount of substantial mischief that will be caused to the applicant if the injunction is refused then compare it with the damage caused to the opposite party if the injunction is granted.”[6]

From the above mentioned case, it is clear that for grant of an application for a temporary injunction the Court shall weigh that if it grants or refuses such application for an injunction, whether such grant or refusal of order is likely to cause any damage to the other party.

Therefore, the basic principle for the grant of a temporary injunction is that the application must fulfill all 3 conditions as also the conditions of Section 94, Order 39.

However, the Apex Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal was of opinion that even if an application does not fulfill all the conditions given in Section 94, Order 39 CPC, the Court can still exercise its inherent powers conferred to it in Section 151 and grant a temporary injunction if the Court thinks it should be granted.[7]

So, from the abovementioned case and section, it is concluded that a Civil court can grant a temporary injunction to the applicant if it is of opinion that even if the application does not meet the conditions required for grant of an injunction, it still has the power to grant it if it feels that refusal of the same would abuse the process of the Court.

  • Permanent/ Perpetual Injunction

Section 37(2) of The Specific Relief Act, 1963 says that a permanent injunction is a decree given by the Court after the hearing. The Court after looking into the merits of the suit, if it finds it plausible, pass a decree of permanent injunction, barring the defendant from asserting any right or commit any action which may contrast the rights of the plaintiff, permanently.

GRANT OF PERPETUAL INJUNCTION

Section 38 of this Act lays down the provision of when a perpetual injunction may be granted by the Court.

A perpetual injunction may be granted to the plaintiff by the Court to prevent any breach of his right, title, and interest, expressly or impliedly. If such an obligation arises out of a contract, then however the Court is guided by the rules and provisions of Chapter II of this Act. Section 9 of this Act lays down the rules in this case.

When the defendant threatens or invades the plaintiff’s right to enjoy a property like-

  1. Where the defendant is a trustee of the property for the plaintiff.
  2. Where there exists no standard for ascertaining the actual damage caused or likely to be caused by such invasion.
  3. Where invasion is such that it can’t be compensated by money.
  4. Where an injunction is necessary to prevent a multiplicity of judicial proceedings.

MANDATORY INJUNCTION

Section 39 of this Act speaks about the provision of mandatory injunction. It means that when the Court when it feels that to prevent the breach of obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, then it may grant an injunction in its discretion to prevent the breach complained and also compel performance of the requisite acts.

DAMAGES IN LIEU OF OR IN ADDITION TO INJUNCTION -Section 40 of this Act says that if a plaintiff in a suit for perpetual or mandatory injunction or in substitution for, claims for additional damage along with the injunction applied for if the Court thinks it fit, award such damages. However, it is highly recommended by this Section that the plaintiff claim for the damages in the plaint before its submission as the permission for further amendment to the plaint solely remains on the discretion of the Court. The dismissal of a suit to prevent the breach of an obligation existing in favor of the plaintiff shall bar his right to sue for damages for such breach.

INJUNCTION WHEN REJECTED

Section 41 of this Act lays down the grounds for refusal of injunctions. Following are the grounds on which a Court of law can refuse to grant an injunction to the petitioner:-

  1. Restraining any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings.
  2. Restraining any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought.
  3. Restraining any person from applying to any legislative body.
  4. Restraining any person from instituting or prosecuting any proceeding in a criminal matter.
  5. Preventing breach of a contract the performance of which would not be specifically enforced.
  6. Preventing any person on the ground of nuisance, an act of which is not reasonably clear that it will be a nuisance.
  7. Preventing a continuing breach in which the plaintiff acquiesces.
  8. If any equal efficacious relief that can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.
  9. When the conduct of the plaintiff or his agents has been such that it can dis-entitle him from the assistance of the Court.
  10. When the plaintiff does not have any personal interest in the matter.

Author(s) Name: Arka Ray (Surendranath Law College, University of Calcutta)

Image

[1] Black’s Law Dictionary, 4th Edition

[2] Concise Law Dictionary, P. Ramanatha Aiyar

[3] A.I.R. 1972 Raj 241

[4] A.I.R. 2002 All 198 (202)

[5] 93 (2002) CLT 585 (588) (Ori)

[6] (1995) DLT 752

[7] A.I.R. 1962 SC 527