Law of Temporary Injunction Under The Code of Civil Procedure

Published by Vijaya Kumari, LLM on

Table of Contents

Introduction

Legal Maxim Ubi jus ibi remedium rooted in the principle of goodwill, equity, and good conscience- where there is a right there is a remedy. An Injunction is an equitable remedy where an individual is commanded by a Court having authority over that individual to perform or cease to perform a specific action, provided if the Court were not to intervene, would cause irreparable harm to the status quo of the individual involved in the case.

In our country, the Law of Injunction finds its roots in the equity jurisprudence inherited from English Law, which borrowed it from Roman Law. Injunctions are governed by the Code of Civil Procedure, 1908 in India and are widely under the purview of the Specific Relief Act, 1963.

Meaning and Definition

An Injunction is a type of legal remedy, which in simple terms,  the word ‘Injunction’ means “to stop someone from doing something”. An Injunction is a remedy granted by the Court that prohibits the commission of a wrong threatened or the continuance of a wrongful cause of action already begun.

The most expressive and acceptable definition given by Lord Halsbury, Injunction is “a judicial process whereby a party is ordered to desist from doing or to do a particular act or thing.” 

Injunctions are of two kinds, one is Temporary and another one is Permanent Injunctions. The Permanent Injunctions really come as the final judgement of the Court.

 In Indian Law, Temporary Injunction has been defined under Section 37 (1) of the Specific Relief Act 1963 as, “Temporary Injunctions are such as are to continue until a specific time or until the further order of the Court and they may be granted at any stage of a suit and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).”

Temporary Injunction is a temporary process of determining the current holding of any possession until the pronouncement of the final judgement. Actually, the Temporary Injunction has been mostly used in deciding the civil matter on the primary stage of any trial. The Temporary Injunction is the continuance of the ownership or middle declaration of the possession until the final judgement of the Civil Court of Law.

Objectives

  • Aspires to protect the party from getting disposed of, or his/her property (subject matter) being destroyed or harmed, or from any injury to the party.
  • Aims to protect the interest of an individual or entity, till the final judgement is passed, when Court grants the Temporary Injunction, it continues to remain for a specified period of time or till the Court deems fit.

Indian Courts regulate the granting of a Temporary Injunction in accordance with the procedure laid down under Section 94, 95 Order XXXIX of the Civil Procedure Code, 1908, whereas Temporary and Perpetual Injunctions are prescribed by Sections 36 to 42 of the Specific Relief Act, 1963.

Rules Under Order XXXIX of the Code of Civil Procedure, 1908

Temporary Injunction under Order XXXIX Rule 1,2, 2A, 3, 3A OF CPC, 1908

Rule-1. Cases in which temporary injunction may be granted

Where in any Suit it is proved by affidavit or otherwise—

(a) that 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

(b) that the defendant threatens or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) 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, the court may by Order grant a temporary injunction to restrain such act or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.

Rule-2. The injunction to restrain repetition or continuance of breach

(1) In any suit for restraining the defendant from committing a breach of contract or other injuries of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgement, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The court may by Order grant such injunction, on such terms, as to the duration of the injunction, keeping an account, giving security, or otherwise, as the court thinks fit.

Rule-2A. Consequence of disobedience or breach of the injunction

(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months unless in the meantime the Court directs his release

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time 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 and shall pay the balance, if any, to the party entitled thereto.

Rule-3. Before granting an injunction, Court to direct notice to the opposite party

The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent

Rule-3A. Court to dispose of the application for an injunction within thirty days

Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable to do so, it shall record its reasons for such inability.

Supplemental Proceedings Part VI Sections 94-95 of Code of Civil Procedure, 1908

Section 94. In order to prevent the ends of justice from being, defeated the Court may if it is so prescribed,-

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

Section 95. Compensation for obtaining arrest, attachment or injunction on the insufficient ground.

95 (1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,-

 (a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its Order such amount, not exceeding fifty thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury (including injury to reputation) caused to him;

Provided that a Court shall not award, under this section, an amount exceeding the limits of its peculiar jurisdiction.

(2) An Order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction.

Who May Apply and Against Whom Injunction May Be Issued?

Both plaintiff and defendant may apply for injunction with an affidavit against each other under Order XXXIX Rule (1) any party to the suit can apply for a Temporary Injunction. An injunction may be issued only against a party and not against any stranger as a third party. An injunction cannot be issued against the Court or Judicial Officers.

Can a Defendant Seek a Temporary Injunction?

The Code of Civil Procedure provides for various manners in which a party can seek the remedy for Temporary Injunction. In any event, the defendants are not left remediless and can invoke the inherent powers of Civil Courts under Section 151 of the Code. Additionally, the Supreme Court can exercise its power under Article 142 of the Constitution to provide any relief to do complete justice in the appropriate facts and circumstances.

In The Himachal Pradesh State Electricity Board Ltd. v Valecha Engineering Ltd. & Ors. [1]

While relying upon the judgement in Shakunthalamma v Kanthamma AIR 2015 Karnataka 13 held that the defendant can maintain its application seeking an injunction under Sub Rule (a) of Order XXXIX, Rule 1 of the Code only. The Court also held that remedy under Rule 1 (b) and (c) is not maintainable to the defendant and such application by the defendant would not be maintainable. The Court further held that in cases in which interim relief sought does not fall under Order XXXIX, Rule 1 (a) of the Code, the Court has inherent jurisdiction to grant the relief of Temporary Injunction in its discretion if it is satisfied that such an order is necessary to meet the ends of justice to prevent abuse of process of the Court.

In B.F Varghese v Joseph Thomas [2]

The High Court observed that, whether the defendant can move for an injunction against the plaintiff without filing a Counter Claim. The Court observed affirmatively in the light of authorities in English Law in Carter v Fay (1894) 2 Ch 541; Collison v Warren (1901), 1 Ch 812 (A) and held only in a case where the defendant’s claim arises out of the plaintiff”s cause of action or is incidental to it, that they can ask for a Temporary Injunction against the plaintiff. Many High Courts followed this view for decades.

How is an Injunction Invoked?

The Indian legal system does not facilitate an application for an injunction unless and until in the existence the possibility of irreparable injury. Irreparable injury is a scenario, wherein it is proved that the harm inflicted on the applicant cannot be amended in any other form.

The following are the three grounds for the requisites of an application for Injunction:

  • Prima facie validity of the case
  • The balance of convenience or that of inconvenience is in favour of the Petitioner
  • Irreparable injury/damage/harm

1. Prima Facie Validity of the Case

The word ‘Prima Facie’ means at the first sight or on the first appearance or on the face of it, so far as it can be judged from the first disclosure.

In Gujarat Electricity Board, Gandhinagar v Mahesh Kumar & Co., Ahmedabad [3]

The Court held that the ‘Prima Facie Case’ means that the Court should be satisfied that there is a serious question to be tried at the hearing. There is a probability of the plaintiff obtaining relief at the conclusion of the trial on the basis of the material placed before the Court.

‘Prima Facie Case’ ‘is a substantial question raised bonafide which needs investigation and a decision on merits. The Court at the initial stage, cannot insist upon a full-proof case warranting an eventual decree. If a fair question is raised for determination, it should be taken that a ‘Prima Facie Case’ is established. The real thing to be seen is that Plaintiff’s claim is not frivolous or vexatious.

 2. The Balance of Convenience

Implies that the comparative troubles or inconveniences which likely arise from the issuance of the injunction are lesser than the ones arising from withholding the injunction.

In Anwar Elahi v Vinod Misra And Anr [4]

It was held that ‘Balance of Convenience’ means that “comparative mischief or inconvenience which is likely to be issued from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant 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.” 

3. Irreparable Injury/Damage/Harm

Refers to damages that may not be possible to be compensated in pecuniary terms. It may be noted that the expression ‘Irreparable Injury’ does not mean that there should be no possibility of repairing the injury. It only means that there exists no specific or fixed pecuniary standard for measuring damages.

In American Cyanamid Co., v Ethicon Ltd. [5]

The Court has rightly pronounced the principle of ‘Irreparable Harm’ as follows;

“If damages in the measure recoverable at Common Law would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appears to be at that stage. On the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the Court should then consider it as irreparable harm.” 

On What Grounds Can Injunction Not be Granted?

An Injunction cannot be granted or such an application may not be entertained if it meets the following grounds:

  • Malafide intention to restrain a person from prosecuting a pending judicial proceeding.
  • To restrain a person from instituting or prosecuting any proceeding in a Court not subordinate to that from which Injunction is sought.
  • To restrain any person from applying to any legislative body.
  • To restrain initiating Criminal proceedings.
  • To prevent the breach of contract the performance of which could not be specifically enforced. 
  • When the conduct of the plaintiff or his agents has been such as to dis-entitle him to the assistance of the Court.
  • When the plaintiff has no personal interest in the matter.
  • To prevent on the ground of nuisance an act of which is not reasonably clear that it will be a nuisance.

Procedure for Issuance of Temporary Injunction

  • An application for Temporary Injunction should be filed with a Plaint supported by an Affidavit.
  • Before granting an Injunction the Court shall direct notice of the application for the same to be given to the opposite party:

Provided that, where it is proposed to grant an Injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant:

  1. Immediately after the order granting the Injunction has been made, a copy of the application for Injunction, deliver to the opposite party or send to him by registered post together with-

                    (i) a copy of the Affidavit filed in support of the application;

                    (ii) a copy of the Plaint; and

                    (iii) Copies of documents on which the applicant relies and

  1. To file, on the day on which such Injunction is granted or on the day immediately following that day, an Affidavit stating that the copies aforesaid have been so delivered or sent.

In the case of disobedience of any Injunction granted or other side made by the Court or breach of any of the terms on which the Injunction was granted or the order made, the Court granting the Injunction or making the order, or any Court to which the suit or proceeding or transferred, may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the Civil prison for a term for exceeding three months unless in the meantime the Court directs his release.

Important Judgements

In Martin Burn Ltd., v R.N. Banerjee [6]

If the Supreme Court held that the plaintiff suppresses the material facts and evidence, then he is not entitled to the relief of Injunction and further points of ‘Balance of Convenience’, and ‘Irreparable Injury’ need not be considered in such a case. Court further requires that the plaintiff should come before the Court with clean hands.

Shiv Kumar Chadha v Municipal Corporation of Delhi [7]

In this case, the Supreme Court observed that the purpose of granting the Temporary Injunction is to maintain the status quo.

Bikash Chandra Deb v Vijaya Minerals Pvt. Ltd., [8]

Hon’ble Calcutta High Court observed that the issue of ‘Balance of Convenience’, does not mean and suggest that the balance would be on one side and not in favour of the other. The balance cannot be a one-sided affair, there must be a proper balance between the parties.

In M. Gurudas and Ors v Rasaranjan and Ors [9]

Supreme Court summarised as “while considering an application for Injunction, the Court would pass an order thereupon having regard to ‘Prima Facie’, ‘Balance of Convenience’ and ‘Irreparable Injury’ “

Seema Arshad Zaheer v Municipal Coprn of Greater Mumbai [10]

The Supreme Court held that the discretion of the Court is exercised to grant a Temporary Injunction by indicating the salient features of the ‘Prima Facie Case’ only when the following requirements are made out by the Plaintiff.

  •  Existence of a ‘Prima Facie Case’ as pleaded, necessitating protection of the Plaintiff’s rights by the issue of a Temporary Injunction.
  • 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 and
  • 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 get such relief will be exercised only when the Plaintiff’s conduct is free from blame and the approaches the Court with clean hands.

In M/S Best Sellers Retail India (P) Ltd., v M/S Aditya Birla Nuvo Ltd.,  [11]

The Supreme Court held that the ‘Prima Facie Case’ alone is not sufficient to grant a Temporary Injunction and cannot be awarded if the damage is not irreparable if the Injunction is not given.

Recent Case of Temporary Injunction

A temporary Injunction can be continued by Appellate Court if the Trial Court finding is not clear on the Title of the Suit Property

In Shadakshari C.L & Others v Santhosha C.A & Others [12]

A single judge bench of Hon’ble Justice Sreenivas Harish Kumar, Karnataka High Court observed “There is no hard and fast rule that the Appellate Court should not refer to the evidence of the witnesses and the findings given by the Trial Court while deciding the application for Temporary injunction. If the Appellate Court feels that the evidence has to be looked into, it should be for the limited purpose of framing an opinion regarding the nature or status of the property.”

The Court made the observation while dismissing an Appeal filed by Shadakshari C L & Others, quashing the Order dated 13/12/2021, passed by the Appellate Court allowing the application filed by the Respondents (Original Plaintiffs) seeking Temporary Injunction against the Appellants pending disposal of the Appeal filed by them challenging the Trial Court Order which had dismissed their Title Suit.  

The Bench further observed that “The first Appellate Court has to give a clear finding as to possession also, but till then there is no good reason to disturb the status that was ordered to be maintained till disposal of the suit.”

Accordingly, it dismissed the Appeal.

Conclusion

An Injunction is an equitable remedy, and attracts the application of the maxim “he who seeks equity must do equity.” Granting an injunction is a discretionary relief and the Court may either grant or refuse to grant an injunction, the party must approach the Court with clean hands. A person has no right to approach the Court seeking for Temporary Injunction, whose case is based on falsehood. The grant of Temporary Injunction cannot be requested by the party as a matter of right or rejected arbitrarily by the Court.

Under Section 151 of the Code of Civil Procedure, 1908 the Court has an inherent power to grant Injunction depending upon the facts and circumstances of each case. The party who seeks Injunction must establish the “Three Cardinal Principles” ‘Prima Facie, ‘Balance of Convenience’ and ‘Irreparable Injury.”

References

[1] OMP No. 169 of 2020 in COMS No. 22 of 2019

[2] AIR 1957 TC 286

[3] 1995 SCC (5) 545

[4] 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341

[5] (1975) 2 WLR 316

[6] (1958) AIR 79 SCR 514

[7] (1993) (3) SCC 161

[8] 2005 (1) CHN 582

[9] (2006) Appeal (Civil) 4101 0f 2006

[10] (2006) 5 SCC 282

[11] AIR 2012 6 SCC 79

[12] MFA No. 667 Of 2022 

[13] https://www.lexology.com temporary injunction: A legal Snaps hot-lexology

[14] https://strictly legal.in Law of temporary injunction under CPC- Strictly legal

[15] https://www.indiafillings.com what is an injunction?- The Law of Injunction- India Fillings

[16] https://lawcorner.in temporary injunction under CPC- Law Corner

[17] https://blog.ipleaders.in>temporary injunction – a right or equitable relief-iPleaders

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