Every court is constituted in order to deliver and administer justice among the parties and therefore, must be deemed to possess all such powers as may be necessary to do full and complete justice to the parties before it.
An injunction is a judicial process whereby 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 injunctions); or orders him to carry out a certain act (mandatory injunction).(1)
In Barney’s Encyclopaedia of the Laws of England, an injunction is defined as “a judicial process by which one, who has invaded or is threatening to invade the rights (legal or equitable) of another, is restrained from continuing or commencing such wrongful act”.
Lord Halsbury, “An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing” (2)
Difference between stay and injunction
There is a difference between stay and injunction. Stay means stoppage, arrest or suspension of a judicial proceeding, while injunction means restraining or preventing a person from commencing or continuing the action. Order of stay is addressed to court while an order of injunction is issued to party. Injunction becomes effective as soon as it is issued whereas stay operates only when it is communicated to the court which it is issued. (3)
Explanation of doctrine
It is a settled proposition of law that interim order can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding. Therefore, a court undoubtedly possesses the power to grant interim relief during the pendency of the suit.(4) Temporary injunctions are, thus, issued during the pendency of the suit.
An injunction is one of the effective remedies under civil laws. It has its origin from Equity Jurisprudence of England. The Specific Relief Act, 1963 consists of a separate Chapter i.e, Chapter VII titled as “INJUNCTIONS GENERALLY”. This Act of 1963 provides that preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual.(5) Thus, an injunction is a means for preventive relief. It may be either temporary or perpetual.
Injunctions are of various types; they are:
Permanent or perpetual injunction restrains a party forever from doing the specified act and can be granted only on merits at the conclusion of the trial after hearing completes from both the sides.(6) Temporary injunction, on the other hand, restrains the party temporarily from doing a specified act and can be granted only until the disposal of the suit or until the further orders of the court. it is regulated by the provisions of Order 39 of the Code of Civil Procedure, 1908 and it may be granted at any stage of the suit.(7)
Who may apply?
It is not the plaintiff alone who can apply for an interim injunction. The defendant can also apply to the court to grant him the interim injunction against the plaintiff.(8)
Against whom injunctions can be issued
An injunction may be issued against a party and not against a stranger or a third party.(9) It also cannot be issued against a court or judicial officer. (10) Normally, an injunction can be granted against persons within the jurisdiction of the court concerned.(11)
Order XXXIX Rules 1 and 2 and Sections 94(c) and 151 provide for grounds on which temporary injunction may be granted. They are:
a) 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
b) Where a defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors; or
c) Where a defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit; or
d) Where a defendant is about to commit a breach of contract, or other injuries of any kind; or
e) Where a court is of the opinion that the interest of justice so requires.(12) In Manohar Lal Chopra v. Rani Sonabati Kumari,(13) the Supreme Court held that the Court has inherent power to issue an injunction in cases not falling within Order XXXIX, Rule 1 and 2, Civil Procedure Code.
The following principles govern the granting of temporary injunctions, which the plaintiff should satisfy the Court before it uses its discretion—
a) The plaintiff must establish prima facie case. He must show that irreparable damage will result to him if the injunction is not granted. The applicant is not required to make out a clear legal title but has only to show that “there is a substantial question to be investigated and that matters should be preserved in status quo until the question can be finally disposed of. This should be asserted in an affidavit. The ambit and scope of the connotation “prima facie” case has been explained by the Supreme Court in Martin Burn Ltd. v. R.N Banerjee.(14) The Supreme Court observed: “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. It may be that the tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgement for the judgement in question. It has only got to consider whether the view taken is a possible view of the evidence on the record.”
b) If the legal right is not disputed, the plaintiff must be able to show that the act complained of is, in fact, a violation of the right or will result in such a violation.
c) The applicant must further show that irreparable injury will accrue to him if the injunction is not granted, and there is no other remedy open to him by which he could protect himself from the consequences of the apprehended injury. In the leading case of American Cyanamid Co. v. Ethicon Ltd.(15) , the House of Lords has rightly pronounced the principle thus: “the governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant continuing to do what was sought to be enjoined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be an adequate remedy and the defendant would be in financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. If on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant was to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction.”
d) The plaintiff should also satisfy the Court of the two maxims of Equity viz.:—
i) “he who seeks equity must do equity’.
ii) “he who comes into equity must come with clean hands’.
e) Acquiescence, delay or laches on the part of the plaintiff will also debar him of the relief.
f) The balance of convenience must be in favour of granting the injunction. In Dalpat Kumar v. Prahlad Singh(16) , the Supreme Court stated that the court, while granting or refusing to grant injunction, should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, 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. If on weighing competing possibilities or probabilities of the likelihood of injury and if the court considers that, pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.”
Further, in Gujarat Bottling Co. Ltd. v. Coca-Cola Co. (17), the Supreme Court observed that these considerations will apply to the defendant seeking vacation of interim relief. Consequences of disobedience or breach of the injunction
Section 2A of Order XXXIX provides:
1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the term on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.
2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.
Mulla has pointed out that under this rule the Court is empowered to order to take away the liberty of an individual and order detention of the person who violates the order, in civil prison. This power is penal in nature. Such an order cannot be passed on suspicion or as a matter of course. There should be clear proof that the order to be obeyed was clear, unambiguous and, with full knowledge of the content of the order it was disobeyed.(18)
Inherent power to grant an injunction
Rule 1 order 39, no doubt, enumerated circumstances in which a court may grant an interim injunction. It, however, nowhere provides that no temporary injunction can be granted by the court unless the case falls within the said provision. Hence, where the case is not covered by order 39, an interim injunction can be granted by the court in the exercise of inherent powers under 151 of the code of Civil Procedure.(19)
Thus, an injunction means an order of a court restraining a person or persons from doing certain things or acts which are detrimental to the interests of another or others. Injunctions are granted by the court as an equitable relief on the basis of the facts and circumstances of each particular case. For granting a temporary injunction, the mere circumstance that the party has a prima facie case will not be the sole basis. The court has also to take into account the question of irreparable or serious injury and the balance of convenience. Courts are vested with the powers to grant interim relief during the pendency of a suit in order to protect the rights and maintain the status quo depending upon the facts and circumstances of each case. The court may grant or refuse temporary injunction as the case so warrants. No party can claim as a matter of right the relief of temporary injunction. It is the discretionary power of the court to judiciously consider the necessity of granting temporary injunction or otherwise. Temporary injunctions may be granted at any time of a suit and are regulated by the provisions of order 39, rule 1 to 5. The principles underlying the purpose of granting temporary injunction is to maintain the status quo and to prevent any change after the institution of suit till the final decision. Temporary injunction is a safeguard for protecting and preserving the interests of the plaintiff while the courts have to assure balance of convenience between the parties before passing a proper order.
- Halsbury’s Law of England (4th edn) Vol. 24, para 901; Food Corporation of India v. Sukh Deo Prasad, (2009) 5 SCC 665.
- S.P Gupta, Aqil Ahmad’s Law of Specific Relief 126 (Central Law Agency, Allahabad, 14th edn.,2008)
- Mulraj v. Murti Reghunath Maharaj, AIR 1967 SC 1386.
- State of Orrisa v. Madan Gopal, AIR 1952 SC 12.
- Section 36, The Specific Relief Act, 1963.
- Section 37(2) Specific Relief Act, 1963.
- Section 37(1) Specific Relief Act, 1963.
- Order 39, Rule 1 CPC, 1908; Rattu v. Mala, AIR 1968 Raj 212.
- L.D. Meston School Society v. Kashi Nath, AIR 1951 All 558.
- P. Venkatachalam v. Rajagopala Naidu, AIR 1932 Mad. 705.
- C.K Tahakker (Takwani), Civil Procedure with Limitation Act, 1963 346 (Eastern Book Company, Lucknow, 7th edn.,2013)
- (1961) 1 SCR 728
- AIR 1958 SC 79.
- 1975 AC 396.
- AIR 1993 SC 276.
- AIR 1995 SC 2372.
- Binod Mohan Prasad, Mulla The Code of Civil Procedure 247(Lexis Nexis Butterworths Wadhwa, Nagpur, 17th edn., 2007).
- Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527.
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