Wednesday, 10 March 2021

How to get a restraining order

 Restraining Orders commonly go by the term ‘Injunction’ in India. An injunction/ restraining order is a Judicial Remedy prohibiting persons from doing a specified act called a restrictive injunction or commanding them to undo some wrong or injury called a mandatory injunction and may be either temporary, interim or interlocutory or permanent. A relief of injunction cannot be taken as a right, it is based on discretion.

Indian courts regulate the granting of a temporary injunction in accordance with the procedure laid down under Sections 94, 95 and Order XXXIX of the Civil Procedure Code, whereas, temporary and perpetual injunctions are prescribed by Sections 36 to 42 of the Specific Relief Act.

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Injunction can be further classified into two types:


1. Temporary Injunction

A temporary or interim injunction may be granted on an interlocutory (during the course of a suit) application at any stage of a suit. It is a provisional remedy that is invoked to preserve the subject matter in its existing condition. Its purpose is to prevent dissolution of the plaintiff’s rights. This type will be used when there is a need for immediate relief.

Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court may grant injunction and  Section 95 of Civil Procedure Code further provides for reasonable compensation when such injunction is proved to be of unnecessary nature.

As per Rule 3 of Order XXXIX of the Code of Civil Procedure, the power to grant an ex-parte interim injunction in exceptional circumstances also rests with the court.


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2. Perpetual Injunction 

A party against whom a perpetual Injunction is granted is thereby restrained forever from doing the act complained of. It can only be granted by a final decree made at the hearing and upon merits of the suit.


Sub-section (3) of Section 38 of Specific Relief Act in clauses (a), (b), (c) and (d) further illustrates the circumstances wherein perpetual injunction may be granted by the Court.


Section 41 of the Specific Relief Act, 1963, provides various circumstances in sub section (a) to (j) in which the injunction cannot be granted.


Further, the nature of Injunction can be preventive, prohibitive, restrictive or mandatory.

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In order to file an order of Injunction you need to consider the amount of Suit Relief and the Court in which the suit has to be filed. An application for such an order needs to be attached keeping in view the type of injunction order which is being prayed for, when the suit proceeds, with the appropriate amount of court fee.

Also note that the Hon'ble Supreme Court has observed that the Court has powers U/s.151 of Civil Procedure Code to issue an injunction in cases not falling within Order XXXIX Rule 1 and 2; however that discretion should be exercised judiciously.

It is important to note that the information provided here is for knowledge purposes only. Consult an expert lawyer before initiating such law procedures.

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