This article is with a view to discuss Temporary Injunction as given under Order XXXIX Rule 1 to 5 of the Code of Civil Procedure.
Injunction is a judicial proceeding which directs a party to do or
to refrain from doing any particular act. When an order of Injunction prohibits
a party from doing any particular act it becomes a prohibitory injunction whereas,
when an order or Injunction compels a person do a particular act it is a
Mandatory Injunction. The main objective for granting temporary injunction is
to maintain subject matter in status quo for the time being. Injunction also
helps in the preservation of property till the legal rights and conflicting
claims of the parties are adjudicated before the court.
Injunctions are of two types: Temporary and Perpetual. The major point
of difference between the two lies in the fact that temporary injunction is
granted during the pendency of the suit till the disposal of the suit or
otherwise directed by the court, and are governed by rules under Order 39 rule
1 to 5 of the code of Civil Procedure. Perpetual injunction is granted at the
conclusion of trial after hearing both the parties and is governed by section
38 to 42 of the Specific Relief Act, 1963.
As previously stated injunction is a judicial proceeding which bestows
the Court to exercise its discretionary power and is granted only after crucial
circumspection and application of sound judicial principles. The order of
injunction cannot be granted arbitrarily hence, there are vital principles
which need to be evaluated before granting the same. The essential principles
on which the Injunction is majorly dependent are
1 1. Existence of
a prima facie Case:
The
existence of prima facie case connotes a bonafide dispute which
establishes an affordable ground for the applicant to seek relief claimed based
on the merits and facts of the case. In the leading case of Dalpat Kumar V/s
Prahalad Singh AIR 1993 SC 227 the Hon’ble Supreme Court held that the burden
of proof lies on the plaintiff to satisfy the court by leading evidence or otherwise
that he has a prima facie case in his favor. In the same case the
Supreme Court also that a mere existence of prima facie case is not
sufficient to entitle temporary injunction to the applicant.
2.
Irreparable Injury/Loss
In
CCE V/S Dunlop India Ltd AIR 1985 SC 330
the Hon’ble Supreme Court held that irreparable damage means , a damage which
is capable of satisfying the court that it cannot be compensated by damages and
no pecuniary standards can be ascertained in measuring the damages.
3.
Balance of Convenience
The
balance of convenience must always be in favor of the applicant. In weighing
the probabilities the Court must be convinced that in denial to grant temporary
injunction the plaintiff would encounter serious irreparable damages, it is
only after thoroughly scrutinizing and evaluating, the Court sanctions the
order of Injunction in favor of the applicant.
4.
Other Grounds:
Other
grounds which purport a sufficient cause to deny or grant temporary injunction
must be complied with as per the sound judicial discretion. Other affording
conditions like latches, suppression of material facts, and intention on the
part of the applicant to defraud and delay, inability of the applicant to come
with clean hands can efficiently compel the Court to deny or reject temporary
injunction.
There are specific grounds under which a temporary injunction can
be granted and they are laid out respectively as per the provisions given in
the Code of Civil Procedure
· That any
property is dispute is in a danger of being wasted, damaged, alienated by any
party to the suit, or wrongfully sold in execution of a decree or, Order
XXXIX Rule 1 (a)
- · That the defendant threatens or intends, or remove or dispose of his property with a view to defrauding his creditors, Order XXXIX Rule 1 (b)
- · That the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, Order XXXIX Rule 1 (c)
- · To restrain a defendant from committing breach of trust or any injury of the any kind, Order XXXIX Rule 2 (1)
- · In case of disobedience to injunction commit the person to civil prison, and order his property to be attached and sold or, Section 94 (c)
- · Whatever the court deems fit to meet the ends of justice, Section 151
Court’s
exclusive power to grant Ex-Parte Injunction
Under Order XXXIX Rule 3 the Court is entitled to exercise its
power to grant ex-parte injunction. But, this power is to be sparingly
exercised and only under exceptional circumstances by the court with the
application of sound judicial reasoning. Usually the Court needs to send a
notice to the opposite party before granting Injunction but Rule 3 lays down an
exception where granting the injunction would be defeated by delay. In such
cases the Court requires the applicant to deliver to the opposite party or by registered
post immediately after the order of granting injunction the following
- · A copy of affidavit filed in support of the application
- · A copy of the plaint, and
- · Copies of documents on which the applicant relies
The Order granting or refusing to grant injunction is subject to appeal.
Since the Order is a case decided within the meaning of section 115 revision
lies against such Order. The order shall stay operative till the disposal of
the suit or throughout the proceeding. As per rule 4A the order of injunction is
subject to being discharged, varied or set aside.
In case of breach of injunction and disobedience under Rule 2A,
the court can perform the following procedures:
- · Arrest of the opponent and detention in the civil prison for a period not exceeding 3 months
- · Attachment not remaining in force for more than 1 year
- · If disobedience continues then the attached property can be sold, and out of the proceeds the court may award such compensation as it thinks fit to the aggrieved party.
Regards,
Maitreyi Raghuraman
No comments:
Post a Comment