TEMPORARY INJUNCTION (ORDER XXXIX, RULE 1 TO 5)

Author: Sonal Gupta,( Symbiosis law school, Hyderabad) Co-Author: Sidhant Singh( DES LAW College, Pune)


Introduction

Interim or interlocutory orders are the orders which are passed by a court during pendency of a suit or when the proceeding/ trial of the case is on-going and hence; which do not determine the substantive rights and liabilities of parties in respect to the subject matter of the suit or proceeding. Thus, according to the Latin maxim “Actus curiae neminem gravabit” which means “ act of the court shall prejudice no one” withal, in order to prevent the defeat of justice the court passes interim order like an order of injunction e.g., Temporary Injunction.

An injunction is an order by the court that abstains the person from doing an act in good faith and conscience. The principle of temporary injunction protects the doctrine of natural justice and guides in sustaining the rights of the violated party either compensatory or monetary. It is based upon the situation and case to case and at the discretion of the court. An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act or to permit his servants or agents to do some act, which he is threatening or attempting to commit, or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action fit law.[1]

The laws related to injunction are specified under the Specific Relief Act, 1963, and is regulated by Civil Procedure Code, 1908. Order XXXIX, Rule 1 to 5 of the Civil Procedure Code, 1908 deals with the concept of the injunction.

Types of Injunction

There are basically two types of injunctions as specified under the act[2], which are mentioned below:

i. Temporary Injunction

ii. Perpetual/ Permanent Injunction

Meaning of temporary injunction

An order of temporary injunction is a provisional/temporary and interim help that guards to secure the present condition of the aggrieved party depending upon the subject-matter of the case, without any interference and harm or threat caused by the respondent. Thus, the principle shields the rights of the offended party from getting destroyed or harmed from any irreparable injury and damage.

The essential explanation to inculcate the provision of a temporary injunction is to secure the interests of an individual or subject, until the final judgment is pronounced. A temporary injunction is granted for a predefined timeframe/ specified period of time or till the court regards fit. 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).[3]

In the case of the State of Orissa vs. Madan Gopal[4], in which the court held that “an injunction is a judicial process whereby a party is required to do or to refrain from doing any particular act. A temporary injunction is a mode of granting preventive relief by the court at its discretion. A temporary injunction is also known as an interim injunction.”

Temporary injunctions are given for a specific period of the time till the final pronouncement of the decision by the court or at the discretion of the cut to avoid the greater injury/ harm caused to the offended party, regarding the matter in concern and can be pleaded at any stage of the trial. The concept of a temporary injunction is specified and granted under the Civil Procedure Code as follows:

i. Order XXXIX[5]

a. Rule 1

This rule states the circumstances that when a court shall grant an order of temporary injunction-

1. If, any property in dispute is in danger of being wasted, damaged or alienated, or wrongfully sold in execution of a decree by any other party to the suit;

2. If, the defendant threatens, or intends, to remove or dispose of the property with a view to defrauding his creditors,

3. If, the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

b. Rule 2 & Rule 3

It states that the court may grant an interim injunction to restrain the defendant from committing the breach of contract or any other injury of any kind to the plaintiff and subsequently the court shall direct notice of the application to the opposite party, before granting the injunction to the plaintiff

c. Rule 4 & Rule 5

It provides for the vacation of already granted temporary injunction and further states that an injunction granted against a corporation is binding upon all members of the corporation and restraining them.

In the case of Agricultural Produce Market Committee v. Girdharbhai Ramjibhai Chhaniyara[6], the Supreme Court held that “a temporary injunction can be granted only if the person seeking the injunction has a concluded right, capable of being enforced by way of injunction.” Thus, a temporary injunction is a temporary relief granted by the court for a stipulated period to avoid any harm or injury to the offended party in the course of the trial from the other party.

Test for a temporary injunction

In the case of M. Gurudas and Ors. V. Rasaranjan and Ors.[7] the Hon’ble Supreme Court held that “while considering an application for an injunction, the Court would pass an order thereupon having regard to prima facie, the balance of convenience and irreparable injury.

Henceforth, there are three tests to circumscribe the principle of the temporary injunction which are as follows:

i. Whether the plaintiff has a prima facie case?

ii. Whether the balance of convenience is in favor of the plaintiff?

iii. Whether the plaintiff would suffer an irreparable damage if the injunction is not granted?

1. Prima Facie Case:

The word prima facie is a Latin term which means ‘on the face of it’ hence, at the first impression or first sight, in the case of Martin Burn Ltd v. R.N. Banerjee[8], the court opined the meaning of the word prima facie and held that “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.”

Hence, if the evidence is prima facie, a relevant conclusion should be drawn on the determination of the evidence as prima facie, and the same should be believed by the parties.

Further in the case of Uttara Bank vs. Macneill & Kilburn Ltd.[9] the court opined that the burden of proof to sustain the principle of prima facie is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favor of him.

Similarly, in the case of Seema Arshad Zaheer and Ors. v. Municipal Corporation of Greater Mumbai and Ors.[10], the Hon’ble Supreme Court declared the salient features of prima facie case, “The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff-

(i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff’s rights by issue of a temporary injunction

(ii) when the need for protection of the plaintiff’s rights is compared with or weighed against the need for protection of the defendant’s rights or likely infringement of the defendant’s rights, the balance of convenience tilting in favour of the plaintiff

(iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands.”

Moreover, it was further held in the case of M/S Best Sellers Retail (I) Pvt. Ltd v. M/S Aditya Birla Nuvo Ltd.& Ors.[11] that, ‘ prima facie case is a must to be eligible to obtain a temporary injunction.’ Thus, mere proving that the case was prima case the decree/order of temporary injunction will not be granted by the court till the damage cause to the party is irreparable.

2. Irreparable Injury:

An irreparable injury is a harm caused by one party violating the rights of the other and which cannot be cure by any lawful means and hence cannot be adequately repaired by monetary compensation. In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh[12] the Orissa High Court held that, ‘the remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused.’

3. Balance of Convenience:

The word balance of convenience is defined as the balance of relief/ compensation that would be granted to the aggrieved party against the injury caused by the defendant. This arises when there is any doubt regarding the adequacy of damage available to the individual and cures in harms accessible to either party or to both. The court should issue an order of injunction where the balance of convenience is in the favour of the aggrieved and not where the parity is agreeable to the contrary party. The significance of “Balance of Convenience” for the offended party is that if the injunction is not allowed and the suit is decided for the offended parties. In spite of the fact that it is classified “Balance of Convenience”, it is extremely the “Balance of (IN)Convenience”, and it is for the offended parties to demonstrate that the burden caused to them would be conceded then that which might be caused to the respondents. In the case of Antaryami Dalabehera v. Bishnu Charan Dalabehera[13], the court held that the ‘balance of convenience, which means, comparative mischief for the inconvenience to the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and compared with that of the opposite party if it is granted.’

Conclusion

An order of injunction by the court is a preventive measure provided to the aggrieved party to safeguards their interests and compensatory consideration. It attempts to make a circumstance, where one party does not violate the interest and harm the rights of the other party. Despite the fact that the principle of injunction is not self-reliant and is regulated significantly for the assurance of rights of either party. A temporary injunction has its own advantages and benefits, which are one of a kind to each circumstance. However, It is fundamental to comprehend one's situation/case and after that push ahead with the alleviation that suits them best. While doing likewise, it should consistently be remembered that a directive request is not nor a privilege in itself, in any case, its forswearing is in the sole discretion of the courts which depends upon the situation and case to case as mentioned.

[1] 2nd Ed., Black’s Law Dictionary, U. S. v. Haggerty (C. C.), 116 Fed. 515. [2] Section 36, Specific Relief Act, 1963, Preventive relief how granted-Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.’ [3] An injunction is an equitable remedy in the form of a court order, The Lawyers & Jurists , https://www.lawyersnjurists.com/article/an-injuction-is-an-equitable-remedy-in-the-form-of-a-court-order/. [4] State of Orissa vs. Madan Gopal, 1952 SCR 28 [5] Civil Procedure Code, 1908 [6] Agricultural Produce Market Committee v. Girdharbhai Ramjibhai Chhaniyara, AIR 1997 SC 2674 [7] M. Gurudas and Ors. V. Rasaranjan and Ors. , AIR 2006 SC 3275. [8] Martin Burn Ltd v. R.N. Banerjee,1958 SCR 514. [9] Uttara Bank vs. Macneill & Kilburn Ltd. 33 DLR 1981 (AD) 298. [10] Seema Arshad Zaheer and Ors. v. Municipal Corporation of Greater Mumbai & Ors., (2006) 5 Scale 263. [11] M/S Best Sellers Retail (I) Pvt. Ltd v. M/S Aditya Birla Nuvo Ltd.& Ors, (2012) 6 SCC 792. [12] Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336. [13] Antaryami Dalabehera v. Bishnu Charan Dalabehera, 2002 I OLR 531.

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