TEMPORARY INJUNCTION - PART I

The literal interpretation of the word “Injunction” explains a type of order, instruction or direction given by the court to any person or body corporate, prohibiting him from engaging in any activity, or continuing a specific activity. But injunction may also mean any order or direction from the Court, compelling any person to perform any particular act.

In other words, it is a judicial order by which the court restrains or prohibit a person from continuing any particular activity which is violating or contravening the legal right of the injured party, or commands him to do a specific act to prevent the person from causing any damage of the injured party.

Injunctions are of two types:

A) PERMANENT INJUNCTION - Permanent Injunction is dealt with and guided by the provisions lead down under Section 38 and Section 37 Sub-Section 2 of the Specific Relief Act, 1963. It means a final order of the court, which is given after hearing both the parties, prohibiting the defendant permanently from doing any specific activity which is causing damage to the other party and contravening the legal rights of such other party.

B) TEMPORARY INJUNCTION - Temporary injunction is described in and regulated by Order 39 of the Code of Civil Procedure1908 and has also been referred to in Section 37 Sub-Section (1) of the Specific Relief Act 1963. In this Article, we will deal with the details of Temporary Injunction and procedures for claiming such injunction.

WHAT IS TEMPORARY INJUNCTION

Temporary injunction is an order given by the court to the person, temporarily restraining him from doing or continuing any particular act for the time being, till the disposal of the suit or until any further order is passed.

Basically, the purpose of temporary injunction is to protect the legal rights of the aggrieved party. Temporary injunction can be granted by the court for the purpose of preservation of property. When any dispute related to a property has been brought before the court, the court can grant and order of temporary injunction until the legal rights and conflicting demands of both the parties are finally adjudicated.

A temporary injunction, also called an Ad-interim injunction, is thus granted for giving an immediate and temporary relief to the petitioner. A petition for temporary injunction is made at any time after filing a suit, and it remains in force as long as the suit is pending, or till the Court directs otherwise.

Section 37 (1) of the Specific Relief Act 1963 lays down that “temporary injunctions are such as are to continue until a specific time, or until the further order of the court , and they may be granted at any stage of suit , and are regulated by the code of civil procedure.”

IN WHICH CASES TEMPORARY INJUNCTION CAN BE SOUGHT AS RELIEF :

The relief of injunction may be granted when the Court deems it necessary for the ends of justice. A petition for temporary injunction can be made in various types of cases, and depends upon the circumstances of each case.

• Suits for recovery of possession of Immovable Property: Temporary injunction can be granted when a person (plaintiff) is in lawful or peaceful possession of a property and it is interfered or disturbed by any other person (defendant). The person (plaintiff) can make a petition before court for temporary injunction when his legal right related to the possession of the property is violated or the property is facing some damage.

• Suits for Infringement of Intellectual Property Rights: In any suit for infringement of copyright, trade mark, patent, or any other intellectual property rights, the Plaintiff can pray before the Court for temporary injunction to restrain the defendant from continuing with his infringement.

In Ramesh Khatanmal Lulla vs Mohammad Yusf Abdul Gaffar[1] it has been stated “the impugned order passed by the court below was justified , particularly because the present case concerned a registered trade mark of the respondent . It was submitted that when the court is concerned with a case of registered trade mark and its infringement, violation of a statutory right of the plaintiff is the subject matter and in such cases, grant of temporary injunction has to be considered by applying the law laid down by the Hon’ble Supreme Court.”

• Suit for Eviction of Tenants: In disputes relating to tenancy, temporary injunction can be granted to restrain the tenant from acting in contravention to the tenancy agreement.

Temporary Injunction can be claimed in a number of suits, where the Plaintiff needs immediate protection from the Court to prevent the Defendant from carrying on any destructive activity in respect of the suit property.

PROCEDURE FOR FILING THE PETITION :

The person, who is claiming the order of temporary inunction have to present a petition before the court in which the original suit has been filed. Procedures for filing a petition are :

The petition must be drafted as per the grounds mentioned in the RULE 1& 2 of the Order 39 of the Code Of Civil Procedure 1908.

In the petition the full description of both the parties ( Name, Address And Other Details), name of the court, full facts of the case, cause of action , full description of the property (location of the property, boundary or surroundings of the property) must be mentioned.

Rule 3 of Order 39 describes certain procedures.

The court in every cases, before granting the injunction direct the notice of application to be given to the opposite party.

If there is a situation where it appears to the Court that the time taken for serving notice to the opposite party would delay the proceedings, defeating the real object of the injunction, the Court may grant the injunction without giving any notice to the opposite party. However, in such situations, there are some necessary procedures to be followed after such injunction is granted. The court will order the applicant to deliver to the opposite party through any registered post, immediately after the order of temporary injunction has been made, a copy of application for injunction with -

1. A copy of affidavit filed in support of the application

2. A copy of plaint

3. Copies of the document on which the applicant relies

After delivering the documents to the opposite party the applicant immediately has to file an affidavit before court mentioning that the copies or the documents have been so delivered.

ON WHAT GROUNDS CAN TEMPORARY INJUNCTION BE GRANTED:

There are certain grounds for granting the order of temporary injunction mentioned in RULE-1 and RULE 2 of Order 39 in Code Of Civil Procedure 1908 -

• A property, which forms the subject matter of the suit, is in danger of being damaged, wasted or wrongfully sold by the defendant;

• The defendant is causing any injury to the property of the plaintiff or threatens the plaintiff to put him out of the possession of the property;

• The defendant threatens or intends to remove or dispose of his property for defrauding his creditors;

• The defendant tried to commit or about to commit breach of contract or any other injury;

• In any other case where the court thinks fit that an injunction order is required for the ends of justice.

It is the discretionary power of the court to grant any order of temporary injunction. Besides the set rules for granting Injunction under Order 39, the Code of Civil procedure also confers wide powers on the Courts to grant temporary injunction under Section 151, and the Courts can allow a temporary injunction even if the case does not fall within the grounds as laid down under Order 39. However, it should be determined and exercised reasonably and must be based on legal principles and for the ends of justice. The injunction order must not be granted in a casual manner as it could affect the other party. The three-fold principle which the Court shall consider before passing an order of temporary injunction are:

• Prima facie case : Prima Facie is a Latin expression which means “at first appearance”. The person has to establish that a prima facie case exist in respect of the rights claimed by him .The applicant has to show certain evidence before court that he is facing some dispute or damages or inconvenience in respect of the property.

In Martin Burn Ltd. V Bannerjee[2] the Supreme Court held that “A prima facie case does not mean a case provided to the hilt but a case which can be said to be established if the evidences 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 the evidence.” “It may be that the tribunal considering this question may itself have arrived at a different conclusion. It has however not to substitute it’s own judgment for the judgment in question. It only got to consider whether the view taken is a possible view on the evidence on the record.”[3]

• Irreparable injury : Only the presence of prima facie case in the person’s application does not guarantees the grant of temporary injunction . The applicant must satisfy the court showing this condition that if the order of temporary injunction is not granted, the applicant will suffer irreparable injury. It means the applicant may suffer certain damages, which will not be repaired by compensation - Orrisa State Commercial Transport Corporation Ltd. Vs Satyanarayan Singh[4]

• Balance of convenience : The principal of balance of convenience must be in favour of the person who made the application for temporary injunction . The applicant must convince the court that most of the inconvenience, difficulties or hardship is caused to him. If the court is satisfied that the balance of inconvenience in favor of applicant, court will grant the temporary injunction.

In AMERICAN CYANAMID CO. V ETHICON LTD.[5] It is observed that “the object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damage recoverable in the action if the uncertainty were resolved in his favor at the trial ; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been preventing from exercising his own legal right for which he could not be adequately compensated under plaintiff’s undertaking in damages if the uncertainty were resolved in defendant’s favor at the trial The court must weigh one need against another and determine where the ‘balance of convenience’ lies”

CONCLUSION :

To sum up, Temporary Injunction orders are granted by the court to protect the legal right of the aggrieved party and preventing every types of damage, dispossession of property and other difficulties faced by the party and provide them justice. As it is the discretionary power of the court, court verifies all the circumstances and evidences judiciously before granting the order of temporary injunction . The court always keeps in mind the amount of damage and inconvenience faced by both the parties before granting any injunction order. So as per all the description mentioned above, that the grant for the temporary injunction cannot be claimed unreasonably by any person . It has to fulfil the mentioned grounds and principles.

REFERENCE:

[1] C/AO/188/2016 [2] MANU/MH/0422/2018 [3] AIR 1958 SC 79 : 1958 SCR 514 [4] (1974) 40 Cut LT 336 [5] ( 1975) I AII ER : 1975 AC 396 : (1975) 2 WLR 316

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This article has been authored by Ms. Arjama Dasgupta, a student of Kalyani University.

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