Wednesday, 26 January 2022

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


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