What is an Injunction?
Injunction is a judicial order requiring the person to whom it is directed 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.
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.
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.
Triple Test to be applied while granting injunction
The widely acknowledged Golden Principles, collectively known as the Triple-Test, are followed by the courts in India as the pre-requisites before a party can be granted injunction, directing him to do or not to do a specific thing, as stated in Dalpat Kumar & Another v Prahlad Singh & Others [AIR 1993 SC 276 ].
These three cardinal factors, to be considered while granting injunction are:
(a) A Prima facie case, which necessitates that as per the material placed on record, the plaintiff is likely to succeed in the final determination of the case.
The burden is on the plaintiff, by evidence adduced by affidavit or otherwise, to prove that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition precedent for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction.
(b) Irreparable injury, which means that if the relief is not granted, the plaintiff will face an irreversible injury that cannot be compensated in monetary terms.
The Court further has to satisfy that non- interference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages.
(c) Balance of convenience, such that the prejudice likely to be caused to the plaintiff due to rejection of the interim relief will be greater than the inconvenience that the defendant may face if the relief is so granted.
The “balance of convenience” must be in favour of granting injunction. 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.
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 absolutely necessary in the interest of justice to issue injunction.
In ex parte injunction give notice before granting it
Normally the court shall give notice to the opposite party before granting injunction.
But in case of urgency where the purpose of granting injunction would be defeated by delay, the court can issue ex parte injunction.
If an ex parte injunction when the court proposes to grant injunction it 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).
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, an appeal against such an order is not permissible but a revision against such an order is possible.
References
- The Specific Relief Act, 1963
- The Code of Civil Procedure Code, 1908
- Vincent & Others v Aisumma [AIR 1989 Ker 81]
- Dalpat Kumar & Another v Prahlad Singh & Others [AIR 1993 SC 276]
