Skip to main content

TEMPORARY INJUNCTION

 TEMPORARY INJUNCTION


  • Meaning

An Injunction is a judicial procedure whereby a party is needed to do, or abstain from doing, any action. It is the remedy in the form of an instruction from the court given to a person that wither restricts him from doing or continuing such an act. Thus, an Injunction is a relief that restricts or prevents from doing an act or may consist of the order from doing any act for the need of prevention.


  • Kind of Injunction

An interim or temporary injunction restricts a party briefly from doing a particular act and can be permitted only until the suit is dismissed or until the further decision of the court. It is governed under the provisions of Order 39 of the Code of Civil Procedure and may be allowed at any time during the suit.

Permanent Injunction restricts a party forever from doing the particular activity and can be allowed only on the merits at the outcome of the trial after hearing both the parties of the suit. It is regulated by Section 38-42 of the Specific Relief Act, 1963.


An Injunction is also:

  1. Prohibitive, Prevention or restrictive i.e., when they prohibit, restrain or prevent someone from doing a particular act or

  2. Mandatory i.e., when they command, order, or, compel a person to do a particular act.


  • Who may apply and against whom injunction can be issued?

Both defendant and plaintiff can apply for an injunction against each other. An Injunction may be announced only against a party and not against any third party or a stranger. It also cannot be announced against judicial officials or a court.


  • The ground of Temporary Injunction

Order XXXIX Rule 1 describes that temporary injunction may be allowed by the court:

  1. Where dispute property is at risk of being damaged, alienated, or wasted by any party of the suit, or unlawfully sold in execution of judgment.

  2. Where defendant intends to remove, threaten or dispose of his property with intention of frauding creditors.

  3. Where defendant threatens to deprive or otherwise cause hard to the plaintiff in regard to the disputed property.

  4. When the defendant is about to commit a breach of contract, or peace, or otherwise (Order 39 Rule 2)

  5. Where the court is of the view it is in best of justice.


  • Circumstances for granting Temporary Injunction

The injunction is an open remedy and thus, prior to granting the temporary injunction, the following are needed to be fulfilled:

  1. Prima Facie case is for the benefit of the plaintiff and against the defendant.

  2. Irreparable harm is likely to be done to the plaintiff, which cannot be compensated by money.

  3. Balance of accessibility is in favour of the plaintiff and against the defendant.

  4. There is a bona fide dispute caused by the plaintiff and there is a chance of the plaintiff being titled to the relief claimed by him.

Thus, the liability is on the plaintiff wanting relief. Bare proof of one of the above-mentioned conditions does not title a person to apply for a temporary injunction.

Case- Dalpat Kuman v. Prahlad Singh and Ors., the supreme court, while taking the question of balance of accessibility in mind saw that the court while practicing discretion in refusing or granting injunction should do proper judicial discretion and should try to balance substantial injury or mischief likely to be because of the parties, and in the case of refusal of injunction should put it will that which is likely to happen to the opposite party if the injunction is applied.


  • Conditions where injunction can be applied

The contents below are not exhaustive but some of them are as follows:

1. To continue the status-quo.

2. Against transaction of property.

3. Disposal of goods.

4. Creating construction.

4. Influencing recovery of dues.

5. Attachment of property.

6. Appointing commission or receiver.

7. Against prosecution etc.


Manohar Lal v. Seth Hira Lal AIR 1962; SC stated, that if the case is not covered on premises of Order 39, a temporary injunction can be applied under inherent power given in section 151 of code of civil procedure.


  • Outcomes of disobedience or breach of an injunction

Order 39 Rule2-A states if Rule 1 and 2 do not abide then:

  • The property of the guilty can be attached.

  • Detention in civil prison cannot exceed three months.

  • Range of attachment:

  1. Not more than a year

  2. If breached or disobey, then the property may be sold.


In the case Ram Prasad Singh v. Subodh Prasand Singh , it was held that an individual is responsible to proceed against Order 39 Rule 2-A, even if he was not a party to the suit given that he is recognized as an agent or servant of the defendant and to have infringed the order of injunction even though he was aware of such an order.


  • Ex-parte Injunction

Order 39 Rule 3 provided that the plaintiff issued a notice against the opposite party prior to an injunction being granted. Though the court has the authority to apply for an ex-parte injunction without granting a hearing or issuing a notice to the party, who will be influenced by such order, the said authority is to be practiced sparingly and under exceptional conditions. 

In the case of Morgan Stanley v. Kartick Das , the apex court highlighted the following elements which should balance with a court in the grant of ex-parte injunction:

  1. Whether serious or irreparable mischief will guarantee to the plaintiff.

  2. Whether the denial of an ex-parte injunction could include greater injustice than the grant of it would include.

  3. The court will also take notice of the time at which the plaintiff first had notice of the act complained of so that the giving of an improper order against a party in his absence is stopped.

  4. The court will look whether the plaintiff had complied for some time and in such conditions, it will not apply an ex-parte injunction

  5. General principles like the prima facie case, the weight of convenience, and irrevocable harm would also be taken into the mind by the court.


The above-mentioned guidelines were followed in Union of India v. Era Educational Trust, AIR 2000 SC 1573, an order refusing or issuing an injunction is subject to appeal under order 43. Thus, any order passes in the practice of the authority in Rule 1 would be appealable as depicted in order 43 rule 1.


Revision against the order denying to apply ex parte injunction is not given under clauses (i) and (ii) of the 2nd provision of section 115. Refusal to practice jurisdiction by the revisional court is correct i.e. No revision is admissible in such a case.



 



Written By Parul Sharma
Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more