Temporary Injunction

INTRODUCTION

Temporary or interlocutory or interim injunction is granted before the trial of an action. Its object is to keep matters status quo until the question at issue between the parties is determined.  The object of the interlocutory directive is to ensure the offended party against injury by infringement of his ideal for which he was unable to be sufficiently repaid in harms recoverable in the activity if the vulnerability were settled in support of himself at the trial[1].

Injunction is an even handed cure just as it is administered by law. Subsequently, equitable standards are of a lot of significance in conceding or dismissing order. Fair standard is that, he who looks for value should tell the truth hands.

PROVISIONS FOR TEMPORARY INJUNCTION

In our country in Criminal issue Sections 133, 142 and 144 of the Code of Criminal Procedure manage award of order. In Civil issue the law identifying with award of directive is contained in Chapter VII of Part III of the Specific Relief Act, 1963. Sections 36 to 42 arrangement with the award of injunction.

Section 37 of Specific Relief Act gives that “transitory Injunction are, for example, are to proceed until a predetermined time, or until the further request of the court, and they might be conceded at any phase of a suit.” a directive to forestall a break of agreement can’t be allowed if the presence and legitimacy of the agreement are themselves in contest. It was settled long ago that “  before such injunction is granted. the applicant must satisfy the Court that there is a completed contract under which he has acquired a right.”[2]

The distinction between specific performance of a contractual obligation and a mandatory injunction is the remedy of specific performance is available when the plaintiff avers a right given to him by the contract and the defendant denies it. The existence and validity of the contract have to be established by the former before he can get the latter to perform the contract, for instance, by executing a sale deed or by doing some other act or by paying a fixed sum agreed to be paid under the contract. The reason is that for filing a suit for specific performance it is not necessary that the existence and validity of the contract should already have been established. The purpose of the suit is to establish it and then to get the remedy of performance of the contract by the defendant.

Section 94(c) of the Civil Procedure Code, 1908 shows that a court may grant a temporary injunction thereunder, only if it is so ‘prescribed’. The expression ‘prescribed’ would mean as defined in Section 2(16), ‘prescribed by Rules’. Temporary Injunction may be granted under Section 94(c), only if a case satisfying the requirements of Order XXXIX, Rules 1 and 2 is made out. Further, the court can grant a temporary injunction in exercise of its inherent powers under Section 151 also.”

Order XXXIX of the Civil Procedure Code, 1908 provides for “Temporary Injunctions and Interlocutory Orders”. Provisions relating to Temporary Injunctions run from Rule 1 to 5. Rule 1 is important. It lays down the cases in which temporary injunction may be granted. It says : Where in any suit it is proved by affidavit or otherwise—

a) That any property in dispute in a suit in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

b) That the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

c) That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,

The Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.

Rule 1 of Order XXXIX makes it clear that it is not the plaintiff alone who can apply for an interim injunction. A defendant may also make an application for grant of an injunction against the plaintiff (see Rule 1(a)). Further, the Allahabad High Court in L.D Meston School Society v. Kashi Nath[3] held that an injunction may be issued only against a party and not against a stranger or a third party and also not against a court or judicial officer. Order 39 Rule 4 of C.P.C. regarding vary or set aside the injunction.

PRINCIPLES OF TEMPORARY INJUNCTION

In Dalpat Kumar V/s Pralhad Singh[4] Hon’ble apex court laid down 3 principles for temporary injunction.

  1. Prima facie case

When there is a genuine contested question to be tried in the court and that a demonstration, on current realities under the steady gaze of the court, there is likelihood of his being qualified for the alleviation requested by the offended party/litigant a transitory directive can be conceded.

At first sight case doesn’t imply that the offended party ought to have a penny percent case which will on the whole likelihood prevail in preliminary. By all appearances case implies that the disputes which the offended party is raising, require thought in merit and are not responsible to be dismissed immediately.

In the authority of Harcharanjit Singh Thind v. Diksha Thind [5], it was held that alleviation of temporary injunction is an optional and even handed thus the gathering who stifled the material reality from the Court, doesn’t have the right to get any optional help considerably less a request for brief order. The guideline of value that, he who looks for value should do value. This rule is to be borne as a main priority while choosing the application for brief directive.

  • Balance of convenience

At the point when the Court’s impedance is important to shield the gathering from the types of injury. All in all unsalvageable injury or peril would follow before the lawful right would be set up at preliminary. To see equilibrium of comfort, it is important to analyse instance of gatherings, relative underhandedness or bother which is probably going to sue from retaining the directive will be more prominent than which is probably going to show up from giving it.

Balance of convenience must be in favour of granting the injunction. In Dalpat Kumar[6], 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 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.”

  • Irreparable loss

To acquire an injunction it is for the most part expressed that the offended party should show approaching unsalvageable injury. The customary approach regulation necessitates that the compromised hurt be both “prompt” and “for all intents and purposes sure” to happen. In Dalpat Kumar., the Supreme Court clarified the extent of the 3 standards, and saw as under:- “The expressions ‘by all appearances case’, ‘equilibrium of comfort’ and ‘ unsalvageable misfortune’s are not manner of speaking expressions for chant, but rather expressions of width and versatility, to meet horde circumstances introduced by man’s creativity in given realities and conditions, however consistently is supported with sound exercise of legal prudence to meet the finishes of equity.”

BREACH OF 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.

CONCLUSION

The dilemma of the Judicial Court or Tribunal is that initially it needs to treat the reality and lie at standard and needs to give a similar treatment, insurance and tuning in to work it finishes up its examination to find out which is correct or off-base, bogus or valid. This cycle takes a long time over the span of which by methods for some period in the middle of measure the test tally of the debate between the gatherings must be safeguarded, and it is this tension for upkeep of the property on the period of the Judicial Court, which is abused a lot by utilizing the angle which has come sooner than the Court with an off-base or bogus case or a suspicious case which had been documented uniquely to take a risk. This classification of the corrupt disputant once prevails with regards to acquiring the break order in support of themselves, they attempt to draw out procedures and reason unsalvageable mischief and damage presently don’t exclusively actually side yet moreover to the acknowledgment and conviction of people in general on Courts.


[1] Gujarat Bottling Co. Ltd. vs. Coca Cola Company, 1995(5) SCC 545.

[2] W.W. Chitaley and V.B. Bakhale, The Code of Civil Procedure (A.I.R. Commentaries), vol. IV, note 2 at 633 (9th ed. 1977) citing Bhikaji Sabaji v. Bapu Saju, (1876-77) I I.L.R. Bom. 550.

[3] AIR 1951 All 558.

[4] AIR 1993 SC 276.

[5] 2008 (3) Mah.L.J. 587.

[6] Supra note 4.


Authored By: Rishika Jain, 4th Semester, Amity Law School, Amity University Rajasthan.

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