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Published: Fri, 02 Feb 2018

Code of civil procedure

Critically Analyse the Principle of Injunctions with Reference to the Code of Civil Procedure


Black’s Law Dictionary defines injunction as “a court order commanding or preventing an action”. [1] Writers have defined an injunction as a “judicial remedy by which a person is ordered to refrain doing or to do a particular act or thing” [2] 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 is commanded to restore matters to the position in which they stood previously to his action’. [3] The principles of equity gives birth to the relief through injunction and the relief is preventive in nature. [4] 

Injunction may be granted and claimed in both civil and criminal cases. In India, in civil matters injunctions are granted as per the provisions of the Code of Civil Procedure, 1908 (hereinafter referred as ‘the Code’) and the Specific Relief Act, 1963 (hereinafter referred as ‘the Act’). [5] Indian law recognises two kinds of injunctions, temporary and perpetual injunctions. [6] Interlocutory injunctions are those in which the injunction order has to continue in force until the further order or until the hearing of the cause upon the merit. [7] Contrary to interlocutory injunctions are the perpetual injunctions that are a part of decree made at the hearing upon the merits of the case. [8] Injunction 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. [9] The purpose of a mandatory injunction is to 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. [10] 

Prerequisites of Granting An 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. [11] One fundamental of law relating to granting of injunction 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 cognisable of law, unless some other considerations like policy or expediency, which forbid a resort to this prohibitive remedy.” [12] The settled position of the law in India is that the applicant seeking an injunction must establish the right that he claims, and if the court finds that the right so asserted by the applicant is not justifiable then, no injunctive relief can be given either temporarily or perpetually. [13] 

Injunction being an equitable relief the person seeking injunction must come with clean hands. The maxim, ‘he who seeks equity must do equity, he who comes into equity must come with clean hands, equity acts the vigilant, not the indolent’ applies in such matters. [14] Law of injunction is well settled that granting or refusing temporary injunction is governed by three well established principles, (a) the applicant must make out a prima facie case (b) the balance of convenience must go in favour of the applicant (c) the applicant must show that he will suffer an irreparable injury if the temporary injunction is not granted. The prima-facie does not mean a case to succeed but which fairly needs enquiry. [15] Hon’ble Supreme Court in Dalpat Kumar v. Prahlad Singh [16] held that, the phrases ‘prima facie case’, ‘balance of convenience’ and ‘irreparable loss’, are not incantatory in nature. These phrases must be considered as words of width and elasticity, to meet myriad situations presented by men’s ingenuity in given facts and circumstances, but judicial discretion shall always be exercised with great caution to meet the ends of justice. Before granting of an injunction, the court would consider the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. It is the established norms of Law of injunction that a prohibitory injunction cannot be grated at the interim stage in a situation where such injunction is possible only after the final decision of the dispute in question. [17] It is a well settled principle of law that granting or withholding an injunction is a matter of judicial discretion and courts consider the amount of substantial mischief done or threatened to the plaintiff to compare the result of the mischief caused to the plaintiff with the damage would be inflicted on the defendant if the injunction is granted. The discretion of the court is the exercise of judicial principles exercised in harmony with the settled rules in such a way as to prevent the defendant doing a wrongful act. This discretion so exercised shall be reasonable and sound, based on the conclusive observations as to circumstances and facts of each case . Courts in India exercise the power to grant an injunction, whether interlocutory or perpetual, with great caution and only upon clear and satisfactory grounds and if no such care is taken in granting the injunction, it would do injustice great injustice to the party against whom the injunction is sought. [18] 

Codified Law Governing Injunction in India

Indian courts regulate the grating of a temporary injunction in accordance with the section 94, 95 and Order XXXIX of the Code, whereas, perpetual injunctions are regulated by Section 36 to 42 of the Act. Injunctions are generally granted on the application of a plaintiff praying for relief, but a prayer for the relief of permanent injunction is not necessary for the relief of a temporary injunction. [19] 

Law Regulating Perpetual Injunctions

A perpetual injunction does not implies that it would persist forever, but what it does is finally settles an issue between the parties. [20] Section 38 of the Act lays down the requisites of granting a perpetual injunction. Sub-section 1 of Section 38 clarifies the position of the section and lays down that a perpetual injunction may be granted to prevent any breach of an obligation already existing in favour of the applicant. [21] Subsection 2 and 3 of Section 38 articulates the condition under which the injunction can be granted. Section 2 of the Act widely defines the term ‘obligation’ [22] . It implies that if there is no such obligation exists, then the court will not grant an injunction. [23] Injunctions can be granted against the breach of any lawful obligation may it be contractual obligation, obligation arising out of a tort etc. [24] According to Kerr, an authority on the subject, a plaintiff is entitled to a perpetual injunction if he successfully establishes that there exist a legal right in his favour and the fact of violation of that legal right, except in exceptional circumstances such as laches or where the interference with the plaintiff’s right is trivial. [25] It is to be noticed that the relief under Section 38 of the Act is subject to restriction imposed by Section 41 of the Act, i.e. even if the plaintiff successfully proves the existence his legal right and the fact that his right has been violated but the case falls within the four corners of Section 41 of the Act, then the court will not grant an injunction in favour of the applicant. [26] The discretion of the court and the right to an injunction may not be determined independently with reference to sub-section 1 of section 37, but it must be understood in light of Section 38 and 41 of the Act. Section 38 and 41 of the Act must be read together and does supplement each other. Section 38 clarifies the situations under which a perpetual injunction may be granted and Section 41 defined the circumstances under which a perpetual injunction may not be granted. [27] 

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 Act is discretionary, [28] but writers have explained certain situations where the entitlement of a party to claim injunction is much same as the matter of right, for example in the case of withdrawing support of a neighbour’s land in such case the plaintiff will be entitled to a prohibitory injunction [29] . Court would exercise the discretionary powers to grant a perpetual injunction with reference to the circumstances of each case. The considerations that a court will consider before granting a perpetual injunction are place, order and well-being of the community and not abstract considerations. [30] In Premji Ratansey Shah v. Union of India [31] while discussing Section 41(j), 38 and 39 of the Specific Relief Act, 1963, it was held that injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest of 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 Court rejected the relief of declaration and injunction in favour of the petitioners who had no interest in the property. Even assuming that they had any possession, their possession was wholly unlawful possession of a trespasser and the court held that an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Even the pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.

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 Act. [32] 

Law Regulating Temporary Injunctions

The issuance or rejection of a temporary injunction is regulated by Section 94, 95 and Order XXXIX of the Code. Temporary injunctions may be granted at any stage of the suit and continue until a specified date or further orders of the court. The best guides in the matter of interference by way of injunction have been judicially stated to be the principles which determine the action of Courts of Equity in England. It is, in fact, on these principles that the relief given in Indian Courts by Injunction is granted; and this relief is, in substance, the same as that granted by the Courts in England. [33] The purpose of granting a temporary injunction is to maintain the status quo in regard to the matters in controversy. The useful office of a temporary injunction is to restrain and stop acts or threats injurious to complainant’s lawful right, and not to compel the undoing of an injury. In order to justify the issuance of a temporary injunction, the relief must necessarily preserve or restore the status quo. Neither a temporary injunction could be issued to disturb the status quo nor it determines the respective rights of the parties under the cause of action asserted or defences put forth. [34] In India, law is well-established that no court shall grant an injunction or interim relief on the grace or default of any person, but interim reliefs are issued on the basis of prima facie case made out by the parties in their pleadings and considering whether the issuance of such interim relief is necessary to check the abuse of process of law and in the interest of justice or to maintain the situation as on date from recurrence of certain incident which were existing as on date of presenting such application or at least the presentation of main application out of which proceeding is arising. [35] A court can interfere by way of interlocutory injunctions to protect the legal rights and to prevent irreparable mischief. [36] Generally, if the grant of an interlocutory injunction would give the complainant all reliefs which he would otherwise obtain upon the final hearing, it should not be an issue.

Temporary mandatory injunction are granted not as a matter of rule, but in exceptional circumstances and the relief is an extra-ordinary relief. [37] The Supreme Court in Colgate v. Hindustan Lever [38] , noted certain specific considerations in the matter of grant of interlocutory injunction. According to the Hon’ble Court is that, primary consideration shall be non-expression of opinion as to the merits of the matter because injunction is sought at the earliest possible stage of a trial.

The other consideration which ought to weigh with the court hearing the application or petition for the grant of an injunction are [39] , (i) Extent of damages being an adequate remedy; (ii) Protect the plaintiffs’ interest for violation of his rights though however having regards to the injury that may be suffered by the defendants by reason therefor; (iii)The court while dealing with the matters ought not to ignore the factum of strength of one party’s case being stronger than others’; (iv)No fixed rules of notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case—the relief being kept flexible. (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the party’s case; (vi)Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant. (vii)Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.

Before deciding to refuse or grant an injunction, it is the duty of the court to consider the effective and relevant documents produced by the parties. [40] If the applicant prays through his pleadings only for perpetual injunction, courts can grant a relief of temporary injunction in order to secure justice, but courts shall consider the matter in light of the principles laid down on Section 41 of the Act. [41] But if the plea raised by the applicant can be decided and examined only on the basis of evidence produced by the parties, courts will not grant the relief of injunction at the preliminary stage of the suit. [42] If a statutory authority exercises its authoritative power and act in conformity of the fundamental principles of the judicial procedure, then a civil court has no jurisdiction to grant an interim injunction against such statutory authority. However in circumstances where the provisions of law and fundamental rules of judicial procedure have not been followed, courts have the power to examine cases. [43] 

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