CPC Order 39 R 1-5

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TEMPORARY INJUNCTIONS: ORDER 39 RULES 1-5

1. What do you mean by injunction? Discuss the types of injunctions. What is the object of granting Temporary Injunction? Who may apply for the injunctions and against whom it may be granted? When Temporary injunction may be granted by a court? What are the principles which govern the grant of Temporary Injunctions?

2. “Power to grant injunction is extraordinary in nature and it can be exercised cautiously and with circumspection.” Discuss with case laws.

3. “Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable.” Discuss with case laws.

4. WHEN INJUNCTION WHICH MAY BE GRANTED AND INJUNCTION WHICH MAY NOT BE GRANTED?

5. Whether it is necessary to give notice to opposite party before granting interim injunction? When can it be waived?

6. When an order of injunction may be discharged, varied or set aside by the court?

7. What are the factors which should weigh with a court in the grant of an ex parteinjunction:

8. Whether, while granting ex party injunction, the requirement of recording reasons is a mere formality? Discuss with case laws.

9. Whether an applicant cannot claim grant of interim relief on the ground that in similar matters interim relief has been granted by the court?( whether doctrine of Precedent applies in case of interim injunction?

10. What should be the relevant consideration when injunction is sought to prevent public authorities from implementing public projects?

11. Whether doctrine of Res Judicata applies in case of Interim Injunctions?

12. Whether an order granting or refusing to grant injunction is subject to appeal.?

13. Whether an order granting or refusing an injunction can be challenged in revision?

14. What are the consequences resulting from a disobedience or breach of an order of injunction is sued by the court?

15. What will be the consequence of obtaining injunction on insufficient grounds?

MEANING

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 (PROHIBITORY INJUNCTION); or orders him to carry out a certain act(MANDATORY INJUNCTION). Temporary injunctions are thus injunctions issued during the pendency of proceedings.

OBJECT

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. ITO v. M.K. Mohd. Kunhi, AIR 1969 SC 430: (1969) 2 SCR 65; Manohar Lal v. Seth Hira lal, AIR 1962 SC 527:1962 Supp (1) SCR450.]

TYPES--- INJUNCTIONS ARE OF TWO KINDS:

1. Temporary; and

2. Permanent.

A 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.[S. 37(2), Specific Relief Act, 1963.]It is governed by Sections 38 to 42 of the Specific Relief Act, 1963.

A TEMPORARY OR INTERIM 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. It is regulated by the provisions of Order 39 of the Code of Civil Procedure, 1908 and may be granted at any stage of the suit. [S. 37(1), Specific Relief Act, 1963.]

INJUNCTIONS ARE ALSO

1. PREVENTIVE, PROHIBITIVE OR RESTRICTIVE, i.e. when they prevent, prohibit or restrain someone from doing something; or

2. MANDATORY, i.e. when they compel, command or order some person to do something.

WHO MAY APPLY?

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.

AGAINST WHOM INJUNCTION MAY BE ISSUED

An injunction may be issued only against a PARTY and not against a stranger or a third party. • It also cannot be issued against a COURT OR JUDICIAL OFFICER. Normally, injunction can be granted against persons within the jurisdiction of the court concerned.

GROUNDS: Section 94 CPC and O39 R 1 & R 2 deals with the grounds when Temporary injunction can be granted .

Temporary injunction may be granted by a court in the following cases:

1. 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 execution of a decree; [Or. 39 R. 1(a).] or

2. where a defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors ;[R. 1(b).] or

3. 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; [1 (c).] or

4. where a defendant is about to commit a breach of contract, or other injury of any kind;[R. 2(1).] or

5. where a court is of the opinion that the interest of justice so requires.[Ss. 94(c), 151

PRINCIPLES -- Generally, before granting the injunction, the court must be satisfied about the following aspects:

Prima facie case

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 bona fide dispute raised by the applicant, that there is a strong case for trial which needs investigation and a 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 or otherwise that he has a prima facie case in his favour.

PRIMA FACIE CASE, however, should not be confused with a case proved to the hilt. 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.

Explaining the ambit and scope of the connotation "prima facie" case, in MARTIN BURN LTD. V. R.N. BANERJEE, [AIR 1958 SC 79:1958 SCR 514.]the Supreme Court observed: "A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.

IRREPARABLE INJURY

The applicant must further satisfy the court that refusal to grant injunction would result in "irreparable injury" to the party seeking relief and he needs to be protected from the consequences of apprehended injury.

The expression irreparable injury however does not mean that there should be no possibility of repairing the injury. It only means that the injury must be a 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.

In the leading case of American Cyanamid Co. v. Ethicon Ltd., [(1975) 1 All ER 504:1975 AC 396: (1975) 2 WLR 316.] the House of Lords has rightly pronounced the principle .

BALANCE OF (IN) CONVENIENCE

The third condition for granting interim injunction is that the balance of convenience must be in favour 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.

Though English and Indian Courts have used the phrase "balance of convenience", it is submitted that proper expression should be "balance of inconvenience".

OTHER FACTORS

The above principles and guidelines are merely illustrative and neither exhaustive nor absolute rules. It should not be forgotten that grant of injunction is a discretionary power and such a power must be exercised in accordance with sound judicial principles.

It is an EQUITABLE RELIEF and even if all the above conditions are satisfied there may be other circumstances leading to a refusal to grant such a relief.

Thus a relief of injunction may be refused on the ground of DELAY, LACHES OR ACQUIESCENCE, or where the applicant has not come with CLEAN HANDS or has SUPPRESSED MATERIAL FACTSor where MONETARY COMPENSATION is adequate relief.

DISCRETION OF COURT

Power to grant injunction is extraordinary in nature and it can be exercised cautiously and with circumspection. A party is not entitled to this relief as a matter of right or course. Grant of injunction is at the discretion of the court . The Court grants such relief ex debi to justitiae, i.e., to meet the ends of justice.

In DALPAT KUMAR V. PRAHLAD SINGH, [(1992) 1 SCC719: AIR 1993 SC 276.]the Supreme Court stated, "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.

The same considerations apply to the defendant seeking vacation of interim relief.

In Gujarat Bottling Co. Ltd. v. Coca Cola C [(1995) 5 SCC 545: AIR 1995 SC 2372.] o the defendant committed a breach of agreement by transferring shares of the plaintiff to a third party without obtaining consent or even without informing the plaintiff. The plaintiff, therefore, terminated the agreement and obtained interim injunction against the defendant restraining him from entering into an agreement with the third party. The defendant applied for vacating the interim injunction. Rejecting the prayer, the Supreme Court observed: "Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also LOOK TO THE CONDUCT OF THE PARTY INVOKING THE JURISDICTION OF THE COURT, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted, in the pending suit or proceeding

WHEN INJUNCTION WHICH MAY BE GRANTED AND INJUNCTION WHICH MAY NOT BE GRANTED?

In accordance with the above principles, interim injunction of maintaining status quo, against transfer of property, disposal of goods, making construction, effecting recovery of dues, attachment of property, appointment of receiver or commission, against prosecution, etc., can be granted by a court.

Since the power can be exercised judicially and in the public interest, no interim injunction causing administrative inconvenience or resulting in public mischief should be granted.

Thus, ordinarily no injunction should be granted against recovery of tax or octroi, enforcement of contractual rights and liabilities, transfer or suspension of employees, delaying election process, interfering with inquiry or investigation, etc.

INHERENT POWER TO GRANT INJUNCTION

Rule 1 of Order 39, no doubt, enumerates circumstances in which a court may grant interim injunction. It, however, nowhere provides that no temporary injunction can be granted by the court unless the case falls within the said provision.

Hence, where the case is not covered by Order 39, interim injunction can be granted by the court in exercise of inherent powers under Section 151 of the Code.

NOTICE: RULE 3

The court shall, before granting an injunction, give notice to the opposite party, except where it appears that the object of granting the injunction would be defeated by delay.[R. 3;

But the proviso added by the Amendment Act of 1976 lays down that when an ex part injunction is proposed to be given, the court has to record reasons for coming to the conclusion that the object of granting injunction would be defeated by delay. In such a situation, the court shall order the applicant to send a copy of the application and other documents immediately to the opposite party.

In such a case, the court shall make an endeavour to finally dispose of the application within 30 days from the date on which the ex-part injunction was granted. Where the court finds it difficult to dispose of the application within the period of 30 days, reasons are required to be recorded.[R. 3-A.]

An order of injunction may be discharged, varied or set aside by the court on an application being made by any party dissatisfied with such order, or where such discharge, variation or setting aside has been necessitated by a change in circumstances, or where the court is satisfied that such order has caused undue hardship to the other side.[R. 4.]

EX PARTE INJUNCTION

Rule 3 of Order 39 requires the applicant to issue a notice to the opposite party before an injunction is granted.

Though the Court has the power to grant an ex-parte injunction without issuing a notice or granting a hearing to the party, who will be affected by such order, the said power is to be exercised sparingly and under exceptional circumstances.

In Morgan Stanley Mutual Fund v. Kartick Das[(1994) 4 SCC 225 at p. 241-42.] the Supreme Court indicated the factors which should weigh with a court in the grant of an ex-parte injunction:

1. whether irreparable or serious mischief will ensue to the plaintiff;

2. whether the refusal of ex parte injunction would involve greater injustice than grant of it would involve;

3. 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;

4. the court will consider whether the plaintiff had acquiesced for some time and in such circumstances, it will not grant ex-parte injunction;

5. the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;

6. even if granted, the ex-parte injunction would be for a limited period of time;

7. general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.

RECORDING OF REASONS

When the court purposes to grant ex-parte injunction without issuing notice to the opposite party, proviso to Rule 3 enjoins the court to record reasons. The requirement of recording reasons is not a mere formality but a mandatory requirement.

Dealing with this aspect, in Shiv Kumar v. MCD[(1993) 3 SCC161.] the Supreme Court stated, " The requirement for recording the reasons for grant of ex-parte injunction cannot be held to be a mere formality.

If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code attracts the principle that, if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all."

IMPOSITION OF CONDITIONS

Even when the court is satisfied with the case of the applicant, and is inclined to grant interim relief, it must consider the interest of the other side.

The party at whose instance interim order is passed, should be made accountable for the consequences of such order. In appropriate cases, the applicant may be asked to furnish security for any increase in cost as a result of delay or damage suffered due to such interim relief.

DOCTRINE OF PRECEDENT

Interim orders have no precedential value and an applicant cannot claim grant of interim relief on the ground that in similar matters interim relief has been granted by the court. Judicial comity, however, requires that in similar matters, similar interim orders should normally be made.

PUBLIC PROJECTS

In many cases, injunction is sought to prevent public authorities from implementing public projects. In such cases, public interest is one of the material and relevant considerations in granting or refusing the prayer for injunction.

The court must consider this aspect, and even if a case is made out to grant equitable relief of granting injunction, it must adequately protect the public authority by imposing appropriate conditions on the plaintiff, including payment of compensation by him in the event of his failure in the suit.

The need of such protection has, however, to be weighed against the corresponding need of the defendant to be protected against an injunction resulting from the exercise of his own legal rights. The court must weigh one need against another and determine where the balance of convenience lies and may pass an appropriate order in exercise of its discretionary power.

Public detriment should not outweigh public interest and public benefit in granting interim orders.[Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 at p. 503: AIR1999 SC 393 at p. 398.]

RES JUDICATA

The doctrine of res judicata applies to different stages of the same suit or proceeding. • Hence, if interim injunction is once granted or refused by the court, the said order will operate till the disposal of the suit or throughout the proceeding. An application for granting or vacating injunction will lie if there are changed circumstances.

INTERIM RELIEF FOR LIMITED PERIOD: EFFECT

Where a court grants interim injunction or relief for a limited period, it comes to an end on the expiry of that period. Normally, in such cases, the plaintiff or his advocate requests the court for extension or continuation of such relief. But in absence of specific order, it expires.

RESTORATION OF BENEFITS

Where a court grants interim injunction which results in injustice to the opposite party, it is not only the right but the duty of the court at the time of passing a final order to undo injustice and to restore the status quo ante

In Director of Inspection (Intelligence) v. Vinod Kumar,[AIR 1987 SC 1260.]against the prohibitory orders, issued by the Income Tax Authorities, the petitioner filed a writ petition and obtained an ex-parte interim order prohibiting the authorities from enforcing the orders. The petitioner then removed his goods under the ex-parte order and withdrew the petition. o Holding that the process of law was completely abused for the purpose of gaining an undeserved benefit, the Supreme Court held that the petitioner could not be allowed to derive an undue advantage from the situation. Restoration of benefits, in appropriate cases, may include payment of costs, difference of price, damages, etc.

APPEAL- An order granting or refusing to grant injunction is subject to appeal.[Or. 43 R. l(r).] Where ex-parte relief is granted by the court and the application is not decided within thirty days, the aggrieved party may prefer an appeal against such an order. [A. Venkatasubbiah Naidu v. S.Chellappan, (2000) 7 SCC 695: AIR 2000 SC 3032.]

REVISION

An order granting or refusing an injunction is a "case decided" within the meaning of Section 115 of the Code and/hence, a revision lies against such an order.

BREACH OF INJUNCTION: RULE 2-A

Section 94(c) and Rule 2-A of Order 39 provide for the consequences resulting from a disobedience or breach of an order of injunction issued by the court.

The penalty may be either arrest of the opponent or attachment of his property or both. However, the detention in civil prison shall not exceed three months and the attachment of property shall not remain in force for more than one year.[R. 2-A(l);

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.[R. 2-A(2).]

The transferee court can also exercise this power and can punish for breach of injunction granted by the transferor court.[R. 2-A(l).]

INJUNCTION ON INSUFFICIENT GROUNDS: SECTION 95

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 or probable ground for instituting it,

on application being made by the defendant, the court may order the plaintiff to pay such amount, not exceeding fifty thousand rupees, as it deems to be a reasonable compensation to the defendant for the expense or injury including injury to reputation caused to him.[S. 95. ]

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