What is an Injunction?
Injunction is a judiciainjunctionl order requiring the person to whom it is directed to, to do or refrain from doing a particular act or thing. It is a preventive relief given by a court preventing a party from doing something.
The primary purpose of injunction is that the property in dispute may be preserved till the disputed rights of the parties before the court are adjudicated.
The legal provisions
The Section 36 to 41 of the Specific Relief Act, 1963, and the Sections 94 & 95 as well as the Order 39 of the Code of Civil Procedure Code, 1908 (CPC) deal with the theory and practice of injunctions.
Kinds of injunctions
Injunctions are of three kinds: temporary, perpetual, or mandatory.
Temporary injunctions continue until a time specified in the order and maybe granted at any stage of the suit.
Perpetual injunction, on the other hand, issued at the hearing and upon merit of the suit. The defended is perpetually enjoining from asserting a right or committing an act which would be contrary to the right of the plaintiff.
Mandatory injunction compels, commands, directs or orders some persons to do something.
The difference between a perpetual injunction and a mandatory injunction is that in the former, the party is restrained from acting in a particular manner whereas in the latter the party is directed positivity to do a particular act.
Circumstances under which court can grant injunction
- where the property in dispute is in danger of being wasted, damaged, or alienated by any party to the suit, or wrong fully sold in execution of a decree,
- where defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors,
- where the defendant threatens to dispossesses the plaintiff in relation to any property in dispute in the suit,
- where a defendant is about to commit a breach of contract or other injury of any kind or
- where the court beliefs that it is necessary in the interest of justice.
Grant of injunction is the discretion of the court
Grant of injunction is in the discretion of the court. Such discretion must be exercised in favour of the plaintiff only if the court is satisfied that unless the defendant is restrained by an order of injunction it will cause irreparable loss or damage to the plaintiff.
No third party can get injunction
The plaintiff can apply for temporary injunction during the pendency of the suit but a defendant may also apply for such injunction against the plaintiff.
But an injunction against a third party cannot be issued. Normally injunction issued against a person within the jurisdiction of the court but in appropriate cases it can be issued beyond the jurisdiction too.
Make out a prima facie case
For obtaining temporary injunction under Order 39 Rule 1 of the Code of Civil Procedure Code (CPC) the plaintiff must make out a prima facie case which is a condition precedent for getting an injunction.
The second factor is that the applicant must satisfy the court that he will suffer irreparable injury if the injunction is not granted and he has no other remedy by which he can protect himself from the consequences of injury.
The third factor is balance of convenience is in favour of the applicant. That means, the comparative mischief, hardship or inconvenience that may cause to the plaintiff if injunction is not allowed will be greater than it is likely to happen to the other party by granting it.
Injunctions that can be granted by a court
A court can grant injunction about maintaining status quo, transfer of property, disposal of goods, making construction, effecting recovery of dues, attachment of property, appointment of receiver or commission, preventing prosecution etc.
Give notice before granting injunction
The court shall give notice to the opposite party before granting injunction, but if the purpose of granting injunction would be defeated by delay the court can issue ex parte injunction.
If an ex parte injunction is proposed to be given the court has to record its reasons in coming to the conclusion that the object of granting injunction would be defeated by delay. In such a case the court shall ask the applicant to send a copy of the application and other documents immediately to the opposite party. In that case the court shall dispose of the application within 30 days Order 39 Rule 3).
Declaration must be followed by consequential relief too
Where the plaintiff is entitled to declaration as well as consequential relief of permanent in junction, he must seek both.
In appropriate cases a civil court may grant police protection in exercise of inherent power under Section 151 of the CPC.
Police protection can be ordered
It can issue suitable directions to police officials to execute the order of the court and to ensure implementation of directions.
Measures civil court can take to enforce the injunction
To prevent the defeat of ends of justice a civil court, under Sectio 94 of the CPC, can:
(a) issue a warrant to arrest the defendant and bring him before the court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient
When injunctions cannot be granted
An injunction cannot be granted, under Section 41 of the Specific Relief Act, in the following circumstances:
- to restrain any person from prosecuting a judicial proceeding, unless such restraint is necessary to prevent a multiplicity of proceedings;
- to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
- to restrain any person from applying to any legislative body;
- to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
- to prevent the breach of a contract the performance of which would not be specifically enforced;
- to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
- to prevent a continuing breach in which the plaintiff has acquiesced;
- when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
- if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project.
- when the conduct of the plaintiff or his agents has been such as to disentitle him to be the assistance of the court;
- when the plaintiff has no personal interest in the matter.
Appeals against order of injunction
An order granting or refusing a temporary injunction is appealable under Order 43 Rule 1 but a second appeal is not allowable.
But if the order of injunction is granted under inherent powers of the civil court the order is not appealable but such an order is revisable.
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