The Law Relating to Injunctions
Azeem Rasic Nabi
B.A.L., LL. B.
An injunction is an equitable remedy that has originated in the English Courts of Equity and it is given when a wrong cannot be effectively remedied by any monetary award or damages and the same is based on the doctrine that an injunction can only be granted only when there is no adequate remedy at law. Nevertheless, while deciding whether to grant an injunction, courts also take into account the interests of non-parties i.e. the public interest.
A court order by which an individual is required to perform or is restrained from performing a particular act.
Black’s Law Dictionary defines injunction as “a court order commanding or preventing an action”.
Writers have defined injunction as “a judicial remedy by which a person is ordered to refrain doing or to do a particular act or thing” or “a judicial process by which one who is threatening to invade or has invaded the legal or equitable right of another is restrained from commencing or continuing such wrongful act, or to commanded to restore matters to the position in which to the position in which they stood previously to his action.
In India the law relating to Injunctions is mainly governed by Order XXXIX and sections 36 to 42 of the Specific Relief Act. Further Section 94(C) of the Code of Civil Procedure is supplementary provision for grant of temporary injunction. It is also settled that there is no bar in granting injunction or supplementary order for the compliance of the injunction in just cases under section 151 of the Code of Civil Procedure. The latter provision of inherent powers increases the scope of civil courts while granting injunctions and consequential reliefs in appropriate cases. Section 95 of the CPC provides for compensation when injunction order is obtained u/s. 94 of CPC on improper grounds.
Injunction can be claimed and granted in both civil and criminal matters. In India, in civil matters, the injunctions as per the provisions of Code of Civil Procedure, 1908 and the Specific Relief Act, 1963. Indian law recognizes two kinds of injunctions i.e. temporary and perpetual. Temporary or interlocutory injunctions are those in which the injunction order has to continue in force until the further orders or until the hearing of the cause upon the merit. Contrary to interlocutory injunctions are the perpetual injunctions that are part of decree made at the hearing upon the merits of case. Injunctions further could be classified as restrictive and mandatory injunctions. The situation in which one of the parties is ordered to restrain from doing a wrongful act which would infringe some legal or equitable right of the plaintiff is one of the restrictive injunction and a case of mandatory injunction is where a party is been ordered to do something and the purpose is restore the illegal or wrongful state of things to rightful state and generally forbids the defendant from continuing wrongful state of things that already exists at the time when injunction was issued.
Types of Injunction
- Preliminary Injunction: A preliminary or temporary injunction 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. The main reason for use of a preliminary injunction is the need of immediate relief. Preliminary or temporary injunctions are not conclusive as to the rights of the parties and they do not determine the merits of a case or decide issues in controversy. They seek to prevent threatened wrong, further injury, and irreparable harm or injustice until such time as the rights of the parties can be ultimately settled. Preliminary injunctive relief ensures the ability of the Court to render a meaningful decision and serves to prevent a change of circumstances that would hamper or block the granting of proper relief following a trial on the merits of the case.
- Preventive Injunctions: An injunction directing an individual to refrain from doing an act is preventive, prohibitive, prohibitory or negative. This type of injunction prevents a threatened injury, preserves the status quo or restrains the continued commission of an ongoing wrong, but it cannot be used to redress a consummated wrong or to undo that which has already been done.
- Mandatory Injunction: Although the Court is vested with wide discretion to fashion injunctive relief, it is also restricted to restraint of a contemplated or threatened action. It also might compel specific performance of an act. In such case, it issues a mandatory injunction, commanding the performance of a positive act. It may also be noted that because the mandatory injunctions are harsh, court do not favor them, and therefore rarely grant them. Such injunctions are being issued to compel the removal of a building or other structures wrongfully placed upon the land of another.
- Permanent Injunction: A permanent injunction or perpetual injunction is one that is granted by the judgment that ultimately disposes of the injunction suit, ordered at the time of the final judgment. This type of the injunction must be final relief. Permanent injunctions are perpetual, provided that the conditions that produced them remain permanent.
- Restraining Orders: A restraining order is granted to preserve the status quo of the subject of the controversy until the hearing on an application for a temporary injunction. A temporary restraining order is an extraordinary remedy of short duration that is issued to prevent unnecessary and irreparable injury.
Prerequisites for Granting Injunction
The first principle of law of injunction is that any injunctive relief would not be available to the applicant to restrain actionable wrongs against which damages are the proper remedy. Even in the circumstances where the applicant does not suffers more of inconvenience than a legal injury. One of the fundamental principles of law relating to injunctions is that the relief jealously seeks to protect a lawful right of the applicant that may be created by a contract, by the ownership of the property or otherwise, or by the cognizable of law, unless some other expediency, which forbid a resort to this prohibitive remedy. The applicant seeking an injunction must also establish his rightful claim and if the court finds that the right asserted by the applicant is not justifiable then no injunctive relief can be given either temporarily or perpetually.
Generally, before granting injunction the court must be satisfied about the following aspects:
- “ubi jus ibi remediam”, whenever there is a right there is a remedy.
- One who seeks equity must come with clean hands.
- One who seeks equity must do equity.
- Where equities are equal, the law will prevail.
- Equity follows the law.
- Equity aids the vigilant, not those who slumber on their rights.
- The power to grant a temporary injunction is at the discretion of the court.
- The discretion, however, should be exercised reasonably, judiciously and on sound legal principles.
- Injunction 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. Such conditions, however, must be reasonable so as not to make it impossible for the party to comply with the same and thereby virtually denying the relief which he would otherwise be ordinarily entitled to.
Temporary injunction 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 and the main reason for use of temporary injunction is immediate relief.
Section 94(c) and (e) of the Code of Civil Procedure contain provisions under which the Court may in order to prevent ends of justice from being defeated, grant a temporary injunction or under such other interlocutory order as may appear to the Court to be just and convenient. Section 95 of the Code of Civil Procedure further provides that where in any suit a temporary injunction is granted and it appears to the Court that there were no sufficient grounds, or the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting the same, the Court may on application of the defendant award reasonable compensation which may be to the extent of the pecuniary jurisdiction of the Court trying the suit.
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 based on sound judicial discretion to protect the plaintiff from apprehended injury may be granted. As per Rule 3A of Order XXXIX of the Code of Civil Procedure where an injunction has been granted without giving notice to the opposite party, the court shall make an endeavor to finally dispose of the application within 30 days from the date on which the injunction was granted and where it is unable so to do, it shall record its reasons for such inability.
The law of injunction is well settled that before granting or refusing temporary injunction is governed by three established principles:
- Prima Facie Case
A prima facie case implies the probability of the plaintiff obtaining relief on the material placed before the Court. The first rule is that the applicant must make out a prima facie case in support of the right claimed by him. The Court must be satisfied that there is a bonafide dispute raised by the applicant, that there is a strong case for trail which needs investigation and decision on merits and on the facts before the Court there is a probability of the applicant being entitled to the relief claimed by him. The existence of a prima facie right and infraction of such right is a condition precedent for grant of temporary injunction. The burden is on the plaintiff to satisfy the court by leading evidence to support his claim.
Prima facie case, however, should not be confused with a case proved to the hilt. It is no part of the Court’s function at that stage to try neither to resolve a conflict of evidence nor to decide complicated questions of fact and of law which call for detailed arguments and mature considerations. These are that matters to be dealt with at the trail. In other words, the Court should not examine the merits of the case closely at that stage because it is not expected to decide the suit finally. In deciding a prima facie case, the court is to be guided by the plaintiff’s case as revealed in the plaint, affidavits or other materials produced by him.
The plaintiff should come before the court with clean hands. If he suppresses material facts, documents then he is not entitled for the relief of injunction and further points of balance of convenience, irreparable injury even not required to be considered in such case. It is well settled that in granting or refusing to grant temporary injunction, the Court has very wide discretion. The exercise of the discretion should be in a judicial manner, depending upon the circumstances of each case and therefore no hard and fast rule can be laid down for the guidance of the Court to that effect.
- Irreparable Injury
The existence of the prima facie case does not entitle the applicant for a temporary injunction. The applicant must further satisfy the Court about the second condition by showing that he will suffer irreparable injury if the injunction as prayed is not granted and there is no other remedy open to him by which he can protect himself from the consequences of apprehended injury. In other words, the Court must be satisfied that the refusal to grant injunction would result in irreparable injury to the party seeking the relief and he needs to be protected from the consequences of apprehended injury. Granting of injunction is an equitable relief and such a power can be exercised when judicial intervention is absolutely necessary to protect rights and interests of the applicant. The expression irreparable injury however does not mean that there should be no possibility of repairing the injury. It only means that the injury is material one, i.e. which cannot be adequately compensated by damages. An injury will be regarded as irreparable where there exists no certain pecuniary standard for measuring damages.
- Balance of Convenience
The principle of balance of convenience implies the evenly balancing of scale in fact while considering the prayer of injunction inconvenience caused to either parties to the dispute is to be considered. The third condition for granting interim injunction is that the balance of convenience must be in favor of the applicant. In other words, the Court must be satisfied that the comparative mischief, hardship or inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the opposite party by granting it.
There are some other factors which must be considered by court while granting injunction. The relief of injunction may be refused on the ground of delay, laches or acquiescence or whether the applicant has not come with clean hands or has suppressed material facts or where monetary compensation is adequate relief. As per the amended Section 9-A (2) of the Code of Civil Procedure. The court is empowered to grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction. When plaintiff has no personal interest in the matter, injunction cannot be granted.
There was a conflict of judicial opinion on the question whether the Court could issue temporary injunction u/s. 151 of the Code of Civil Procedure when the case did not fall within the term of Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. However now that point is concluded by the Hon’ble Supreme Court of India in the case of ‘Manmohanlal vs Seth Hiralal’ (AIR 1962 SC 527) by observing that the Court has the powers u/s. 151 of the Code of Civil Procedure to issue an injunction in cases not falling within OrderXXXIX Rule 1 and 2, however that jurisdiction should be exercised judiciously. For the purpose of implementation of an injunction order police protection can be ordered u/s. 151 of the Code of Civil Procedure. However the Court shall not order for police protection on the basis of an ad-interim ex-parte order and only final order under Order XXXIX, Rule 1 and 2 can be enforced with police assistance. An order granting police aid without giving a chance to the defendant to submit his objections is not proper.
Grounds for continuing Injunction
Temporary injunction should be continued where it is necessary to protect the plaintiff’s right especially where the action is for the sole purpose of injunction. When the circumstances of the case are such that dissolution of injunction would amount to denial of relief to which the plaintiff might show himself entitled in the final hearing.
Perpetual injunction is one that is granted by the judgment that ultimately disposes of the injunction suit. It is ordered at the time of final judgment. This type of injunction must always be a final relief. A perpetual injunction does not imply that it would persist forever, but what it does is finally settles an issue between the parties.
Section 37(2) of the Specific Relief Act, 1963 says that a perpetual injunction can only be granted by a decree made at the final hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38 of the Specific Relief Act further provides a circumstance where a perpetual injunction can be granted in favor of the plaintiff to prevent the breach of the obligation existing in his favor. In contractual matters when such obligation arises, the Court has to seek guidance by the rules and provisions in Chapter II of the Specific Relief Act, 1963 dealing with the specific performance of contracts. Sub- Section (3) of Section 38 of the Specific Relief Act, 1963 in clauses (a), (b), (c) and (d) further illustrates the circumstances wherein perpetual injunction can be granted by the Court. Therefore in view of the Section 38 (3) when the defendant invades or threatens to invade the plaintiff’s right or enjoyment of property, the Court may grant a perpetual injunction. The categories mentioned sub-section (3) are as:
- Where the plaintiff is the trustee of the property for the plaintiff;
- Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
- Where the invasion is such that compensation in money would not afford adequate relief;
- Where the injunction is necessary to prevent a multiplicity of proceedings.
No party can claim an injunction as a matter of right and the power of the Court to grant an injunction under Section 36 of the Specific Relief Act, 1963, but under certain circumstances and situations the entitlement of the party to claim injunction is much same as the matter of right. The Court would exercise the discretionary powers to grant a perpetual injunction with reference to the circumstances of each case. The considerations that Court will consider before granting a perpetual injunction are place, order and well-being of the community and not abstract considerations. The plaintiff must have a personal interest in the matter. The interest right not shown to be in existence cannot be protected by injunction. The issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the legal or equitable right of the person. It is not mandatory that for mere asking such relief should be given. The wide discretionary power vested with the Court enables it to grant a perpetual injunction to prevent breach of an obligation (a legal right) which is in existence and has not been lost, provided that such a relief is not barred under Section 39 and 41 of the Specific Relief Act, 1963.
Refusal of Injunction
Section 41 of the Specific Relief Act, 1963 provides various contingencies in sub-section (a) to (j) in which the injunction cannot be granted:
- To restrain any person from prosecuting a judicial proceeding unless such a restrain is necessary to prevent a multiplicity of the 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 proceedings in 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 necessary 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 mutual mode of proceedings except in case of breach of trust,
- When the conduct of the plaintiff or his agent has been such as to dis-entitle him to the assistance of the Court,
- When the plaintiff has no personal interest in the matter.
Under normal parlance, while granting perpetual injunction, the Court has to see the nature of right being invaded, whether the compensation would be an inadequate remedy for its redressal, there is no standard for ascertaining the actual damage caused by such invasion, there shall not have efficacious remedy to the plaintiff in respect of such an invasion, the plaintiff would not have been guilty of delay and latches and his conduct is not unfair. Aspect of comparative hardship also assumes importance.
Mandatory injunctions are contemplated under Section 39 of the Specific Relief Act, 1963. Where it is necessary to prevent the breach of an obligation and the erring party may be compelled to perform certain acts.
A mandatory injunction forbids the defendant to permit the continuance of a wrongful state of things that already exists at the time when the injunction is issued on purpose of mandatory injunction and is therefore issued to restore a wrongful state of things to their former rightful order. Two elements have to be taken into consideration for granting a mandatory injunction under Section 39 of the Act. In the first place, the Court has to determine what acts are necessary in order to prevent a breach of obligation and in the second place the requisite acts must be such as the Court is capable of enforcing. The exercise of power to grant mandatory injunction must be attended with greatest possible caution and is strictly confined to cases where the remedy of damage is inadequate or the purposes o justice and the restoring of things to their former condition is the only remedy which will meet the requirements of the case.
- Kunhammad Vs. C. H. Ahamad Haji, AIR 2001 Kerela 101.
(Temporary Mandatory Injunction)
The relief of interlocutory mandatory injunction can be granted generally to preserve or restore the status-quo of the last non contested status which preceded the pending controversy until the final hearing, when the relief may be granted, or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.
The following guidelines were issued:
- The plaintiff has a strong case for the trail that is it shall be of high standard than a prima facie case that is normally required for prohibitory injunction.
- It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
- The balance of convenience in favor of the one seeking such relief.
Grant or refusal or interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances of each case.
The jurisdiction to issue mandatory injunction is discretionary which can be exercised only in a case which falls strictly within four corners of provisions enumerated under section 37 to 41 of the Specific Relief Act, 1963.
Enforcement of the Decree for Injunction
The wording as framed in Order XXI, Rule 32(1) would indicate that in enforcement of the decree for injunction a judgment debtor can either be put in civil prison or his property can be attached or both the said courses can be resorted to. But Sub-rule (5) of Rule 32 shows that the Court need to resort to either of the above tow courses and instead the Court can direct the judgment-debtor to perform the act required in the decree or the Court can get the said act done through some other person appointed by the Court at the cost of the judgment-debtor. Thus in execution of the decree the Court can resort to three-fold operation against disobedience of the judgment-debtor in order to compel him to perform the act.
The decree-holder is entitled to execute the decree for injunction and partition without any impediment and if not executed the decree within 12 years as per Article 136 of the Limitation Act, then the decree holder has to face the consequences thereof at least to the extent of executability of decree for partition.
Under the Code of Civil Procedure, certain specific orders mentioned in Section 104 and Order XLIII, Rule 1 of the Code are only appealable and no appeal shall lie from any other orders. Therefore, the order made u/s. 151 of the Code of Civil Procedure being not included in the category of appealable orders; no appeal is maintainable against such orders.
Disobedience, Remedy and Effect
Remedies and effect for disobedience of temporary injunction are laid down in the provisions of Order XXXIX, Rule 2A of the Code of Civil Procedure. Sub-rule (2) provides that if the disobedience or breach continues beyond one year from the date of attachment, the Court is empowered to sell the property under the attachment and compensate the affected party from such sale proceeds. In other words, attachment will continue only till the breach continues or the disobedience persists subject to a limit of one year period. If the disobedience ceases continue, then attachment also would cease. The remedy for the enforcement/disobedience of either perpetual or mandatory injunction is lying under Order XXI Rule 32 of the Civil Procedure Code.
To sum up succinctly, injunction is an order of Court by which an individual is required to perform or is restrained from performing a particular act. It is judicial process exercised by courts judiciously and when necessity exists. An injunction is generally issued only in cases where irreparable injury to the rights of an individual would result otherwise. It should be readily apparent to the Court that some act has been performed or is threatened that will produce irreparable injury to the party seeking the injunction. An injury is generally considered irreparable when it cannot be adequately compensated by an award of damages. Injunctive relief is not a matter of right but its denial is within the discretion of the Court. Whether or not an injunction will be granted varies with the facts of each case.