Law of Injunction

Introduction

The Law of injunction in Indian legal system has its origin in the Equity Jurisprudence of England which has been inherited by our legal system. Even the common law system of England has borrowed this system from the Roman law wherein it was termed as Interdicts. Interdicts were divided into three parts prohibitory, restitutory and exhibitory. Prohibitory Interdict is what we commonly call an injunction.  Injunction is usually termed as strong arm of the Courts of equity which has contributed a lot to consolidate the position at which the judiciary is dispensing justice between the parties. Since the from the history and background it can be manifested that the origin of the power to grant injunction is from equity hence the procedure of exercise of discretionary authority is governed mainly by equitable considerations.

 An injunction is 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 to 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 threatening or attempting to commit, or restraining 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 fit law.[i]

In Indian legal system in criminal matters Injunctions can be issued under Sections 133, 142 and 142 of the Code of Criminal Procedure. Whereas in civil matters the law regarding to injunctions is contained in chapter VII of Part III of the Specific Relief Act, 1963. Sections 36 to 42 of the said Act talks about the process of granting injunction. It is termed as a prevertive relief which is granted at the discretion of the Court by injunction which may be temporary or perpetual. Section 37(1) of the Specific Relief Act, 1963 deals with the temporary injunctions which are applicable for a specified time, or until further orders of the Court, and the Court can grant them  at any stage of the suit or proceedings and are administered by the Code of Civil Procedure. Hence there can be permanent injunction which is granted as a final relief in the suit and there can be temporary injunction which may be passed at any situation of the suit or proceedings for preservation of the property.

For example, if it so happens that a person who was living in that building as a tenant didn’t followed the terms and conditions of the rent agreement and continued to live in the building without paying any rent after the time period had expired then the owner has a possible claims on the building and the petitioner may ask the competent Court to order such person to vacate the building.

Types of Injunctions in the Indian Law-

There are two types of injunctions, as mentioned below

  1. Temporary Injunction
  2. Perpetual/Permanent Injunction

Temporary Injunction:

Temporary inunctions are used as a small step during the progress of the suit or proceeding towards the preservation of its subject matter which could be property or any other right which is now of enormous importance and sometimes it becomes even more important than the final result of the suit or proceedings with the change of the time.

The society and Judiciary are dealing through a very trying time as the moral values have become in existent. The question before the Judicial Court of Tribunal is that initially it has to differentiate between the truth and false all has to five equal treatment, protection and opportunity to hearing until the final investigation as to see what is correct or wrong. The total process of proceedings in the Court is a very time consuming process and it becomes necessary to preserve the subject matter of dispute between the parties and this anxiety to preserve the subject matter is the utmost priority of the Court which is misused and abused by the side which has come before the Court with a wrong or false case or a doubtful case which had been filed only with slightest possibility. Such litigant if succeed in obtaining the interim injunction in their favor, then they try to prolong proceedings and cause irreparable damage and harm not only to their opposite side but also to the reputation and faith of the public on Courts.

The Courts at all levels have to be cautious, alert and vigilant while granting temporary injunction during progress of the suit or proceedings. Section 37(1) of the Specific Relief Act, 1963, talks about temporary injunctions which are such as are applicable until a specified time or until further orders of the Court and they may be granted at any stage of the suit or proceedings and are regulated by the Code of Civil Procedure. Following provisions of Civil Procedure Code talks about injunction.

  • Section 94: The Section includes supplemental proceedings, to enable the Court to prevent the ends of justice from being defeated. Section 94(c) states that a Court may grant temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold. Section 94(e) of the Code enables the Court to make interlocutory orders as may appear to it to be just and convenient.[ii]
  • Section 95: If it is found by the Court that injunction was provided without any reasonable grounds, or the plaintiff is defeated in the suit, the Court may award reasonable compensation to the defendant on his application claiming such compensation.[iii]
  • Order XXXIX[iv]:
    • Rule 1: It lays down the situations when a Court may grant temporary injunction. These are:
  • 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
  • The defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
  • The defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
    • Rule 2: this rule enables the Court to grant interim injunction for restraining the defendant from committing a breach of contract or other injury of any kind to the plaintiff.
    • Rule 3: It states that a Court shall direct a notice of application to the opposite party, before granting the injunction to the plaintiff. However, if it seems to the Court that the purpose of the injunction would be defeated by the delay, it may not provide the notice.
    • Rule 4: It provides for vacation of already granted temporary injunction.
    • Rule 5: It states that an injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action the injunction seeks to restrain.

In the case of M. Gurudas and Ors. case[v]the Hon’ble Supreme Court of India has opined, “while considering an application for injunction, the Court would pass an order thereupon having regard to prima facie, balance of convenience and irreparable injury.

1. Prima Facie Case: 

Prima Facie stands for , on the face of it. In Martin Burn Ltd. vs. R.N. Banerjee[vi], while discussing a the meaning of the ‘prima facie’ case, the Court said:

“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 which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.”

Prima facie case is a must to be eligible to obtain a temporary injunction. However, it is not sufficient and temporary injunction cannot be granted if the damage that will be caused if the injunction is not given is not irreparable.[vii]

2. Irreparable Injury:

‘Irreparable injury’ means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused.[viii]

3. Balance of Convenience:

In the case of Anwar Elahi[ix]the Court has clearly explained the meaning of ‘balance of convenience’. According to the Court:

“Balance of convenience means that comparative mischief or inconvenience which is 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 weigh 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.”

The procedure with regard to the grant of temporary injunction and interlocutory orders has been provided in Order 39 of C.P.C. In Sub-Rule (2) of Rule 2 of Order 39 proviso was inserted by which provides power to the Court to grant injunction was taken away in certain matters. Further a proviso was added in Rule 3 which deals with prerequisites where it is proposed to grant an injunction without giving notice of the application to the opposite party. In this situation the Court shall record the reasons and object of granting the injunction and how delay might defeat the purpose to protect the common object.

 The applicant is required to serve the copy of the order of injunction along with copy of the application, affidavit, plaint and other documents relied on by him to the opposite party. Further an affidavit has to be submitted on the same date on which the injunction has been granted stating the requirements contained in Proviso (a). According to rule 39 the Courts have to finally dispose of the application within 30 days from the on which the injunction was granted and reason must be recorded if the said is not done with the stipulated time period. Thus by introducing the aforesaid amendment an attempt was made to minimize the hardship and harassment caused by the injunction orders passed ex parte.

Similar provision have been included in Article 226 of the constitution by substituting clause (3) thereof which states that if an interim order in passed ex parte and the party concerned makes an application to the high Court for vacation of such order, the High Court has to dispose of the application within a period of two weeks and if the same does not happen then the interim order on the expiry of that period stands vacated.  Abuse of injunctions and hardship to the opposite parties must be minimized.

The Courts should keep in mind the origin of such power i.e. equitable jurisdiction and hence all claims for injunction must be tested on all principles of equity.  These principles like prima facie chance if suffering irreparable injury etc have been explained above and must be kept in mind,

 Permanent Injunction

According to Section 37 (2) of Specific Relief Act, 1963, a perpetual injunction can only be granted by the decree made at the hearing and upon the merit of the suit. Section 38 of the Act further provides the circumstances where the perpetual injunction may be granted in favor of the plaintiff to prevent the breach of an obligation existing in his favor, whether expressly or by implication. In contractual matters when such obligation arises, the Court has to seek guidance by the rules and provisions contained in Chapter II of the Act dealing with specific performance of contracts. Sub- Section (3) of Section 38 in clauses (a), (b), (c) and (d) further illustrates the circumstances where a perpetual injunction may be granted by the Court.

The mandatory injunctions are provided under Section 39 of the Act where it is necessary to prevent the breach of an obligation and the erring party may be compelled to perform certain acts. Section 40 talks about granting damages in lieu of or in addition to injunction. Section 41 provides circumstances where the injunction should be refused. Section 42 provides for grant of injunction to perform a negative agreement.  The specific relief Act and other statues were codified many years back and not many amendments have been made to such statutes. The Court should not be hesitant in granting injunction in new conditions or circumstances the main basis on which injunction is provided must remain same i.e. it must be based on the principles of equity.

In this context the views expressed by the Courts and Jurists may be gainfully quoted here : “It is the duty of a Court of Equity,” said Lord Cot ten hem in Taylor v. Selmon, (and the same is true of all Courts and institutions), “to adopt its practice and course of proceedings, as far as possible, to the existing state of society and to apply its jurisdiction to all those new cases which from the progress daily made in the affairs of men must continually arise and not from too strict an adherence to forms and rules established under very different circumstances decline to administer justice and to enforce rights for which there is no other remedy.” Courts on equity keep in mind preventing wrong between and preserving the rights of parties. The Courts should act according to justice, equity and good conscience, when there is no specific rule applicable to the circumstance of the case.”[x] Once the aforesaid basics of this equity jurisdiction become clear, there may not be any difficulty in its application to various situations.

Damages In Lieu of, or in Addition to Injunction

If the plaintiff claims before the Court any additional damages along with the injunction sought for, either perpetual or mandatory, or in substitution of the said injunction, the Court may award such damages if it considers so.[xi] If no damages have been claimed, the Court may allow the plaintiff to make the required changes to the plaint and claim damages[xii].One must claim damages in plaint itself before submitting as any amendment is subject to discretion of the Court. The dismissal of a suit to prevent the breach of an obligation existing in favor of the plaintiff bars his right to sue for damages for such breach.[xiii]

Injunction to Perform Negative Agreement

The Court can grant injunction wherein the Court prohibits certain person contact to not do certain things. It is subject to the fact, whether the plaintiff has performed the terms of the contract binding on him or not. Non performance by the plaintiff dis-entitles him from obtaining such an injunction.[xiv]

Grounds for Rejection of an Application for Injunction

On the following grounds, an injunction cannot be granted:

  • To restraint a person from prosecuting a pending judicial proceeding, unless it is to prevent multiplicity of the proceeding.
  • To restraint a person from instituting or prosecuting a judicial proceeding in a Court, where the injunction is sought from a Court subordinate to that Court.
  • 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 would not be specifically enforced (Illustration: a contract between a master and servant, requiring the servant to render personal services to the master cannot be specifically enforced by the master or the servant. Hence, an injunction cannot be granted in this situation)
  • Where it is not reasonably clear that an act it nuisance, to prevent such an act on the ground of nuisance.
  • To prevent a continuing breach in which the plaintiff has acquiesced, as the general rule is that acquiescence is an implied consent by remaining silent.
  • Where except in the case of breach of trust, equally efficacious relief can certainly be obtained by any other usual mode of proceeding.
  • When the conduct of the plaintiff or his agents has been such as to dis-entitle him to the assistance of the Court.
  • When the plaintiff has no personal interest in the matter.[xv]

Case Laws Regarding Permanent Injunction

In the case of  Jujhar Singh vs. Giani Talok Singh[xvi] a permanent injunction was prayed before the Court  by a son to prevent his father who happened to be the Karta of the Hindu Undivided Family (HUF), from selling the HUF property was set aside. It was declared not maintainable because the son, also a coparcener, had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale.

If injunction would have been provided then this would have been unlawful as the father would not have been able to sell the property even when he is required to do so to fulfill legal obligation as a Karta. Son being a coparcener had other legal remedies available.

 In the case of Cotton Corporation Of India vs. United Industrial Bank[xvii]an injunction was sought for to restrain the defendants from presenting a winding-up petition under the Companies Act, 1956 or under the Banking Regulation Act, 1949. The petition was dismissed by the Court as it was not competent to grant, as a relief, a temporary injunction restraining a person from instituting a proceeding in a Court not subordinate to it.The Court here was of the view that if a perpetual injunction cannot be granted for the subject matter of the case under Section 41(b) of the act, ipso facto temporary injunction cannot be granted.[19]


[i] Black’s Law Dictionary

[ii] Section 94 CPC

[iii] Section 95 CPC

[iv]  Order 39 CPC

[v] M. Gurudas and Ors. Vs. Rasaranjan and Ors. AIR 2006 SC 3275

[vi] 1958 AIR 79, 1958 SCR 514

[vii] M/S Best Sellers Retail(I)P.Ltd vs M/S Aditya Birla Nuvo Ltd.& Ors (2012) 6 SCC 792

[viii] Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336

[ix] Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341

[x] Taylor v. Selmon

[xi] Section 40(1) of the Specific Relief Act, 1963

[xii] Section 40(2) of the Specific Relief Act, 1963

[xiii] Section 40(3) of the Specific Relief Act, 1963

[xiv] Section 41 of the Specific Relief Act, 1963

[xv] Section 41 of the Specific Relief Act, 1963

[xvi] AIR 1987 P H 34

[xvii] 1983 AIR 1272, 1983 SCR (3) 962

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