TEMPORARY INJUNCTION
Write a detailed note on Temporary Injunction.
According to the Indian Justice System, every court is constituted for the purpose of administering justice among parties and that is why, it is important that every court must possess all the powers which are necessary to do full and complete justice to the parties. These powers not only include power to trial a suit and grant final decree but also include power to grant interim relief like injunction. This is only to protect the immediate breach of rights of the parties and to protect the subject matter of the suit.
In the leading case of Food Corporation of India v. Sukh Deo Prasad, (SC 2009), the Hon’ble court defined the term injunction and stated that “an injunction is a judicial process whereby a party is required to do, or to refrain from doing, any particular act. It is a remedy in the form of an order of the court addressed to a particular person that either prohibits him from doing or continuing to do a particular act or orders him to carry out a certain act”.
According to our Indian Legal System, injunctions are of two types: –
- Temporary Injunction
- Permanent Injunction
Permanent Injunction restrains a party forever from doing the specified act and can be granted only on merits at the conclusion of the trial after hearing both the parties to the suit whereas temporary injunction on the other hand, restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further orders of the court. The provisions of the temporarily injunction is regulated by the provisions of Order 39 of the Code of Civil Procedure, 1908 and it may be granted at any stage of the suit.
According to the provisions of Code of Civil Procedure, 1908, temporarily injunction can be granted by a court in the following cases: –
A. Where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in the execution of a decree;
B. Where a defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors;
C. Where a defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit;
D. Where a defendant is about to commit a breach of contract, or other injury of any kind;
E. Where a court is of the opinion that the interest of justice so requires.
In the leading case of Manohar Lal Chopra v. Seth Hiralal, (SC 1962), the Hon’ble court stated that the underlying object of granting temporary injunction is to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit. It is in the nature of protective relief granted in favour of a party to prevent future possible injury.
The power to grant a temporary injunction is at the discretion of the court and this power should be exercised by the court reasonably, judiciously and on sound legal principles. It should not be lightly granted as it adversely affects the other side. The grant of injunction is in the nature of equitable relief, and the court has undoubtedly power to impose such terms and conditions as it thinks fit. But the conditions must be reasonable.
In the leading case of Dalpat Kumar v. Prahlad Singh, (SC 1993), the Hon’ble court held that before granting the injunction, the court must be satisfied about the following factors: –
A. Whether the plaintiff has a prima facie case?
B. Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is not granted?
C. Whether the balance of convenience is in favour of the plaintiff?
The above three rules are described as “three pillars” on which the foundation of every order of injunction rests. It is known as “triple test” for grant of interim injunction.
According to the Indian Justice System, while determining the application for grant of temporary injunction, the court will analyse that whether a prima facie case exist in favour of plaintiff and if it exist in favour of plaintiff then after this the court analyse that if it reject the application for grant of temporary injunction then whether an irreparable injury is caused to plaintiff and after this at last the court will analyse that whether balance of convenience lies in favour of plaintiff. It means that if court reject the application, then whether the injury caused to plaintiff is greater than to the injury caused to the opposite party. If all these factors are present then only court allows the application for grant of temporary injunction otherwise the court has power to reject the application.
According to Order 39 Rule 3 of Code of Civil Procedure, 1908, before granting temporary injunction, it is mandatory for court to send notice to opposite party and after hearing both the parties the court will either allow the application or reject the application. But in a situation where if court send notice to opposite party, then the basic purpose of granting injunction would ne defeated then in such a situation court has power to decide the application ex- parte that is without sending notice to opposite party.
In the leading case of Morgan Stanley Mutual Fund v. Kartick Das, (SC 1994), the Hon’ble court indicated the factors which should weigh with a court in the grant of an ex- parte injunction: – - Whether irreparable or serious mischief will ensue to the plaintiff;
- Whether the refusal of ex parte injunction would involve greater injustice than grant of it would involve;
- The court will also consider the time at which the plaintiff first had notice of the act complained of so that the making of an improper order against a party in his absence is prevented;
- The court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;
- The court would expect a party applying for ex parte injunction to show utmost good faith in making the application;
- Even if granted, the ex parte injunction would be for a limited period of time;
- General principles like prime facie case, balance of convenience and irreparable loss would also be considered by the court.
According to section 95 of Code of Civil Procedure, 1908, where in any suit in which an order of temporary injunction has been obtained by the plaintiff on insufficient grounds, or where the suit of the plaintiff fails and it appears to the court that there was no reasonable ground for instituting it, on application being made by the defendant, the court can order the plaintiff to pay such amount not exceeding fifty thousand rupees as it deems to be reasonable compensation to the defendant for the expense or injury including injury to reputation caused to him.
