The granting of a temporary injunction is a matter of discretion of the court, the discretion is to be exercised judicially according to well-settled principles.
Rule 1 of Order XXXIX of the Code provides that 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.
As said above, the power to grant a temporary injunction is discretionary with the court. That discretion has to be judicially exercised on certain legal principles. The temporary injunction should not be lightly granted, because it will be a serious thing if persons in possession were to be restrained from using the property merely because a suit has been instituted with reference to it. The court has to be satisfied with regard to the following matters:
1. The court will first see that there is a bona fide contention between the parties and then on which side, in the event of success, will lie the balance of inconvenience if the injunction does not issue.
2. The court must be satisfied that the applicant has a prima facie case to go to trial, i.e., there is a probability of the plaintiff getting the relief asked for by him. It is not necessary that the plaintiff should establish his title to the property in suit. It is enough for him to show that he has a fair question to raise as to the existence of the right which he alleges and can satisfy the court that the property in dispute should be preserved in its present actual condition until such question can be disposed of.
3. The court must be satisfied that there is a likelihood of the plaintiff suffering from an irreparable injury—an injury which could not be adequately remedied by damages—if the injunction is not granted.
4. Where a permanent injunction cannot be given, generally no temporary injunction is allowed.
Discretionary jurisdiction in appeal under Article 226 against order in Art. 226. Where the High Court has granted some relief by way of social justice or on equitable grounds without violating the rights of other parties, though in law such relief was not permissible, the Supreme Court would not interfere in its discretionary jurisdiction under Article 136 if the order under appeal advances the case of justice and if it is just and equitable so to do.
But above principles was found inapplicable in the case of Sree Jain Swetamber Terapanthi Vid(S) v. Phundan Singh. As the relief granted by the High Court was beyond the pleadings. In an adversorial litigation the relief has to be granted to the parties based on their pleadings. No relief should be granted in interlocutory proceedings beyond the scope of the suit.
Considerations for Grant of Stay—prima facie case, balance of convenience and irreparable injury:
To sum up before granting a temporary injunction, the court must be satisfied that the plaintiff has a prima facie case; that the court’s interference is necessary to protect him from irreparable or at least serious injury; that the balance of convenience is in favour of the person who asks for the injunction; and that there is no other sufficient or adequate remedy open to him by which to protect himself. Even if the plaintiff has a prima facie case, if it has not been shown that an irreparable loss would be caused and the plaintiff cannot be compensated in damages, no case is made out for the grant of a temporary injunction.
The court should come to a finding whether to grant temporary injunction or not on consideration of three principles, viz., prima facie case, balance of convenience and irreparable injury.
The court has to consider on prima facie grounds the existence of the legal rights alleged and the respective strength and weakness of the cases of the parties.
Before the issue of a temporary injunction, the court must satisfy itself that the plaintiff has a prima facie case. To sustain an application for temporary injunction a probability of right is sufficient.
But, if the legal right which is alleged to have been infringed is doubtful, the mere existence of the doubt is enough to refuse temporary injunction. The party seeking the aid of the court for an injunction must show that the act complained of is in violation of right or is at least an act which, if carried into effect, will necessarily result in a violation of the right.
When an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed.
In determining whether the plaintiff is entitled to an interim injunction the court will have to apply its mind whether the plaintiff has a prima facie case and whether the balance of convenience is in his favour. In that connection, the fact that a court has granted a decree directing the defendant to be put back in possession is a relevant circumstance.
It is settled law that temporary injunction can only be granted if the plaintiff is able to prove not only that he has a prima facie case, but also that the balance of convenience lies in favour of granting the injunction and that irreparable injury would be caused to him if it is not granted. After the trial, however, the plaintiff becomes entitled to grant of permanent injunction merely on proof of his title to immovable property over which the defendant threatens to commit a trespass.
The subordinate courts have no inherent jurisdiction to grant a temporary injunction ex debito justitiae. When the case cannot be brought within the four corners of Order XXXIX, which expressly deals with injunctions, the inherent jurisdiction of the court cannot ordinarily be invoked to add to the powers thus conferred.
That the suit would become infructuous if the court did not issue an injunction is by itself no ground in law, if there was no prima facie case made out in support of it. A prima facie case for the grant of a temporary injunction means that there is a substantial question which needs investigation. In order to make out a prima facie case, it is enough if the plaintiff can show that he has a fair question to raise as to the extent of the right alleged by him.
An injunction can be granted to a party on establishing:
(1) That he has a prima facie case; (2) that the balance of convenience requires granting of the same; and (3) that he would suffer irreparable injury in case injunction is not granted. For proving all the aforesaid three points, the burden is on the plaintiff praying for the relief.
Mere proof of one of the three conditions does not entitle a person to an order of temporary injunction. The proof that the plaintiff has a prima facie case does not entitle him to get injunction as of right, if the balance of convenience does not justify the granting of the same.
The grant of an injunction to restrain a breach of contract rests largely in the sound discretion of the court. This discretion is a legal and not an arbitrary one. Relief by injunction should be granted or withheld according to real equity of the case in view of all facts and circumstances.
Where existence of a contract is in doubt or its existence is not proved with that degree of certainty which the law requires, an injunction against a breach should be refused. Also, if damages can be awarded for the breach complained the court should refuse to grant injunction.
The principle governing the measure of damages is that the plaintiff must be put so far as money can do it in the position he would have occupied if the breach had not taken place. If damages can be adequate remedy, no interlocutory injunction should normally be granted.
It is a settled principle that -to entitle any party to an ad interim injunction, it must not only satisfy the court about its prima facie right but also that refusal to grant injunction would result in irreparable injury and that balance of convenience lay in favour of granting the injunction rather than in refusing it.
It is also well settled that in order to find out whether there exists any prima facie case in favour of a party or not, it would be enough if it could be established that there was really a seriously arguable question and it is not necessary that the point be proved to the hilt at that stage. Showing a fair chance of success is good enough.
The Supreme Court passed interim order permitting the private importers to clear their stock of caustic soda and stayed the recovery of difference in duty on their undertaking to the court that they would sell caustic soda at the same rate at which the State Trading Corporation was selling.
Acting upon the interim order created no equity in favour of private exporters, nor are there any special or peculiar circumstances. An undertaking given to court is not an obligation imposed by court. Acting upon its own undertaking to court creates no equity in favour of the party giving it.
The injunctions and stay orders should not be granted mechanically without realising the harm. Such mechanical orders cause to the other side and in some cases to public interest. The auction purchaser failed to pay as per the stipulated terms even after many extensions of time. The court stayed the proposed cancellation of allotment.
The vendor (D.D.A.) applied for vacating it but nothing happened except repeated adjournments. In this process the auction purchaser cheated out hundreds of persons out of their hard earned monies and their dreams of owning a flat are shattered. The court has got no jurisdiction and justification to grant stay in such a case.
Balance of Convenience:
It is not proper to grant injunction by which GRID Corporation might be required to maintain backup power to electricity generating company without payment for power consumption. In the ends of justice the company was permitted to make payments in instalments.
Suit for injunction restraining demolition of construction made in premises cannot be decreed on the ground that the notice of demolition was served an plaintiff beyond period of limitation where they failed to show that they were the owner and were proceeding with the constructions with Municipal Rules. Order granting decree in favour of the plaintiffs was held not to be proper.
Where petitions were no longer continuing in the company, the injunction granted against the company was not warranted in the changed circumstances.
Interim injunction can be granted restraining the respondent from using disputed trade mark which is prima facie violative of appellant’s right in respect of the registered trade mark.
The parties not having any concluded right are not entitled for the enforcement of injunction. The market committee established new market area. The shop holders in existing market area were entitled for shops in new market area under shop category. No injunction against allotment of shops can be sought by persons who can only apply for allotment of shops under other categories.
The appellant was given mining lease of Government property which was already in lawful possession and enjoyment of the respondent under lease deed. Appellant cannot have the possession unless the respondent is ejected under due process of law. During the pendency of civil suit, the respondent is entitled to ad interim injunction for protection of his lawful possession.
The appellant-State filed suit for declaration and for setting aside decree on grounds of fraud and it was in possession of suit property when earlier suit for declaration was pleaded by the respondents. It is not proper to refuse injunctions restraining the respondents from executing fraudulent decree.
Powers of appellate to set aside the injunction order:
Appellate court set the injunction order on the grounds that the trial court has gone wrong in recording prima facie satisfaction and failed to discuss material on record and to record contrary findings. The orders setting aside injunction were held invalid by the Supreme Court.
It is one thing to conclude that the trial court has not recorded its prima facie satisfaction on merits but granted the temporary injunction and it is another thing to hold that trial court has gone wrong in recording the prima facie satisfaction and setting aside that finding on the basis of the material on record because it has not considered the relevant material or because it has erroneously reached the finding or conclusions on the facts established.
In the first situation, the appellate court will be justified in upsetting the order under appeal even without going into the merits of the case but in the second eventuality, it cannot set aside the impugned order without discussing the material on record and recording a contrary finding.
Supreme Court granted temporary injunction to plaintiffs notwithstanding the investments made by the builder as the builder was denying the prima facie just rights of plaintiffs in property.
The Court has to satisfy that non-interference by the Court would result in ‘irreparable injury’ to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be subsequently compensated by way of damages.
The Apex Court while considering the question of the balance of convenience observed in Dalpat Kumar v. Prahlad Singh and others:
“The Court while granting or refusing to grant injunction should exercise judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Then, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.”
Injunction against implementation of town improvement scheme for the benefit of public should not be granted unless the applicant proves prejudice. Public interest outweighs the personal interest. Directions were given to accommodate the person having open site under such scheme in any available housing scheme.
In an action for passing off the claim for temporary injunction to restrain defendant be decided on the basis of undisputed facts and material which may be legally taken into consideration at interlocutory stage.
The order granting interim injunction or temporary injunction pending final orders on the injunction petition filed under Order XXXIX, Rule 1 read with section 151 of the Code of Civil Procedure is only an appealable order under Order XLIII, Rule 1 (r) of the Code of Civil Procedure, but not revisable under section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India and section 115 (2) of the Code of Civil Procedure places a clear embargo against an order against which an appeal lies either to the High Court or to any court subordinate to it.
In a suit for declaration of title simpliciter, the Court has power under Order XXXIX. Rules 1 and 2 or even in section 151 to grant ad interim injunction pending suit. Admittedly, the appellant was in possession of the property. In view of his apprehension that there was a threat to his possession, his only remedy would be whether he will be entitled to the declaration sought for.
When he sought to protect his possession, if he was otherwise entitled according to law, necessarily the court had to consider whether possession was to be given to him pending the suit. Merely because there was no dispute as regards the corporeal right to the property it does not necessarily follow that he was not entitled to avail of the remedy under Order XXXIX, Rules 1 and 2, C.P.C.
Even otherwise also, under section 151, C.P.C., the Court has got inherent power to protect the rights of the parties pending the suit. Therefore, the application under Order XXXIX, Rules 1 and 2 is maintainable.
A plaintiff seeking interim injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure must establish that he has a prima facie case, that the balance of convenience is in his favour and that he will suffer irreparable injury if injunction is not issued.
Before issuance of temporary injunction under Order XXXIX, Rule 1, C.P.C. the court must have to be satisfied that the party praying for the relief has prima facie title, he will suffer irreparable injury if temporary injunction is not granted and the balance of convenience is in his favour.
It is settled law that in granting or not granting ad interim injunction three factors have to be kept in view, namely, the establishment of a prima facie case, the balance of convenience between the parties, and if the interim injunction is not issued it will cause irreparable injury to the applicant. The position would not be different in cases of infringement of copyrights and passing off.
In a suit for declaration of title simpliciter, the court has power under Order XXXIX, Rules 1 and 2 or even in Section 151 to grant an interim injunction pending suit. Even where there is no dispute as regards the corporeal right to the property, remedy of injunction under Order XXXIX, Rules 1, 2 would not be barred for the protection of possessory right.
Where a suit is for damages and a prayer is made to restrain the defendants from using the premises for any commercial use and the defendants are found to be the owners of the premises, the plaintiff has to show a prima facie case and has also to indicate that there is likelihood of an irreparable injury being caused to her and that the balance of convenience is in her favour.
It may, however, be pointed out that the mere existence of a prima facie case by itself will not entitle the plaintiff to a restraint order. The aspects of comparative equities, balance of convenience and irreparable injury also have to be satisfied.
The plaintiff has to show that the user under challenge is causing inconvenience, annoyance or is capable of becoming a source of nuisance or is likely to interfere in the peaceful enjoyment of her property. The inconvenience, annoyance and nuisance must as such be real and potent and not imaginary or fanciful.
A restraint order depriving a person of lawful enjoyment of his property is a grave and serious matter as it will have the effect of practically disabling and depriving a party from the enjoyment of his property in a lawful manner pending adjudication of the claims of the parties. It is thus too serious a matter to be given a casual or a routine treatment.
In order to have implementation of the order for injunction, the court can order police protection for the same under S. 151, C.P.C.
Where in a suit filed for injunction to restrain the defendants from interfering with the possession of the land in suit temporary injunction was refused on the ground that the defendants were in possession of lands and that finding being based on evidence could not be said to be perverse or without jurisdiction, the High Court would not interfere with the order refusing to grant temporary injunction under S. 115, C.P.C.
Order XXXIX, Rule 1 and S. 151 do not entitle the Court to issue injunctions against the lawful owner. The grant of an ad interim, injunction is an extraordinary thing. It is not permissible to grant it unless the plaintiff establishes that the defendant has no case on merits and that the plaintiff is undoubtedly entitled to a decree and the defendant undoubtedly liable or likely to take away the fruits of the decree.
In a suit for mere declaration no ad interim injunction can be passed. If the plaintiff is in possession of the property and is exercising complete control over it, even if the sales are effected by some persons who have no rights, his right can in no way be affected; and in case he is not in possession, then he should have filed a suit for possession also.
The errors contemplated by cl. (c) of S. 115 may relate either to breach of some provisions of law or to material defects of procedure affecting the ultimate decisions and not to errors of fact or of law, after the prescribed formalities had been complied with.
It is a well-established principle of law that the court does not grant injunction under Order XXXIX, Rule 1, C.P.C in cases where the damage or loss can be assessed in terms of money. Where the impugned order of the lower appellate court is contrary to this well-established principle of law, it has been held that it was an order with material irregularity.
The interlocutory relief by way of temporary injunction cannot be granted as a matter of course and the court is required to exercise judicial discretion in granting the relief only when the three essential conditions are satisfied by the party praying for injunction. These are: The person seeking injunction should establish prima facie case and balance of convenience in his favour and it must be further shown that he would suffer irreparable injury in the event the injunction prayed for is refused.
As regards the condition of prima facie case, it does not mean that it must be shown that in all probability the party applying for injunction would succeed in the suit. It would be sufficient for him to show that he has a fair question to raise as to the existence of the right he claims and that it is necessary in the interest of justice to preserve the said right till the disposal of the suit.
In a given case, it is the bounden duty of the court to examine in detail with reference to the specific material on record to find out whether prima facie case is made out or not; in whose favour does the balance of convenience lie; and whether the petitioner suffers any irreparable loss if injunction is refused.
In disposing of an application for temporary injunction under Order XXXIX, Rules 1 and 2, the court must take into consideration all aspects. The fact that such a prayer is being made in aid of a relief for enforcement of an alleged negative covenant must enter into consideration as much as the mutual convenience of the parties and other attending circumstances like the conduct of the parties in relation to such a covenant.
Where a lessee under a permanent lease has already raised permanent structures on the leasehold land long back without any objection in this regard on the part of the lessor, it would be too hasty a conclusion at the time of considering the question of grant of interim injunction commanding the lessee to pull down a construction that has reached an advanced stage to hold that S. 108 (1) (p) of the Transfer of Property Act was not ruled out by an agreement to the contrary due to the conduct of the lessor merely because there was no express agreement to the contrary.
Consequently, interim injunction as sought for, could not be granted, especially when the lessor had not made out what prejudice would be caused to him if the injunction was not granted and the grant of injunction would cause irreparable loss to the lessee.
In considering an application under Order XXXIX, Rules 1 and 2, the court cannot exclude the considering of the balance of convenience and inconvenience of the parties. Where the court has granted temporary injunction without considering the mutual prejudice of the parties and other necessary elements required by law to be considered, the exercise of jurisdiction by the court would be in breach of order XXXIX, Rules 1 and 2. As such the court would be deemed to have exercised its jurisdiction with material irregularity and the order granting injunction would be open to challenge in revision.
Landowner of small piece of acquired land failed to make party the Land Acquisition Officer who took possession of whole land and delivered to Housing Board. In such circumstances no injunction can be granted to the landowner against Housing Board in whom land stood vested.
Injunction to restrain repetition or continuance of breach:
The court may, at any stage of a suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed or not, on the application of the plaintiff, grant a temporary injunction restraining the defendant from committing the breach of contract or injury complained of. [Order XXXIX, Rule 2 (1)]. 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. [Order XXXIX, Rule 2 (2)].
The proviso to Order XXXIX, Rule 2 (2) (Uttar Pradesh State Government) is wide in so far as it restrains against the grant of temporary injunction which has the effect to restrain the auction or the effect flowing as a result thereof. This does not affect adversely the relief for permanent injunction sought by the plaintiff which is to be adjudicated ultimately on merits in a properly instituted suit.
The question arising is in respect only of a temporary injunction and because, in view of the statutory provision no such temporary injunction can be granted in such a case, it should follow that the service of notice under S. 80 (1) of the Code could not be dispensed with by leave of the trial court.
Under Order XXXIX 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 XXXIX, 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.
The injunction can be granted to person in possession of property even against a person who has purchased it.
V.D. Tripathi and others v. Vijai Shanker Dwivedi and others:
Temporary injunction under Order XXXIX, Rule 2 of the Civil Procedure Code can be granted on the term of the prayer for permanent injunction in the suit and not on different terms. Where the plaintiff did not pray for a permanent injunction restraining the defendant from suspending or removing him from his office and prayed only for restraining the defendant from interfering with his day-to-day working as principal, it was held that the temporary injunction restraining the defendant from suspending or removing him was not an injunction of the same or like kind but of a different kind. If such injunction is granted the court granting it acts with material irregularity.
Where the prayer for injunction made by the owner of a mango grove restraining the owners of brick kiln from running the kiln on account of damage caused to his grove by the fumes emitting from the chimney of the kiln was granted by the lower appellate court on the ground that the damage caused to the grove could not be ascertained and the fact that the grove owner was receiving damages from the owners of other kilns and the fact that the factors such as height of the chimney, direction of wind, etc. were placed out of consideration by the lower court, the grant of injunction was illegal in view of S. 38, Specific Relief Act, read with Order XXXIX, Rule 2 (2), C.P.C., as the damage caused to the grove by the fumes of the kiln was ascertainable.
If a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the ‘status quo’ and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted.
Where single judge of High Court under Order XLIII, Rule 1 passed order in appeal against grant of interim injunction, no further appeal lies to Division Bench in view of S. 104 (2).
Where temporary injunction has been granted in passing off action, interference in appeal should only be made if it is contrary to settled principles for the grant of a temporary injunction or that it is arbitrary or perverse.
Where the court after hearing both parties made an interim order of injunction absolute restraining the plaintiff from doing certain acts which might have the effect of preventing the successful party from exercising their rights of easement in the nature of a right of way over the property, it was an order having the judicial sanction and was not an act of the party. In an action for damages therefore it was incumbent on the plaintiff to prove malice as also that the defendant acted without reasonable and probable cause.
In order to obtain an order of temporary injunction restraining the defendant from interfering in any manner whatsoever with the possession of the plaintiff over the suit land, in a suit filed by the plaintiff for declaration of her right, title and interest in respect of the suit land and for confirmation of possession therein and/or for recovery of possession thereof, the first thing, and the least, that the plaintiff is required to do is to satisfy the court that there are, at least prima facie, good grounds to believe that the plaintiff has both ownership and possession in respect of the suit land, because it is obvious that the plaintiff cannot be heard to urge that the defendant should be restrained in respect of his activities relating to the suit land, even though the defendant may have no right or title thereto, unless the plaintiff can make out a prima facie case of ownership and possession in respect thereof.
In order to determine whether there is prima facie case for temporary injunction, a court does not go beyond its jurisdiction if it takes into consideration the prima facie inconsistencies and incompatibilities as apparent from the pleadings and other materials brought on record. The fact that the defendant has no right or title to the suit land cannot, by itself, be a ground for an order of temporary injunction against him at the instance of the plaintiff, if the latter does not make out a prima facie case there-for.
An injunction directed to a corporation is binding on all members and officers of the corporation besides the corporation itself. (Order XXXIX, Rule 5).
Notice of the application for injunction shall be issued by the court in all cases to the opposite party except where the object of granting the injunction would be defeated by the delay.
Where, however, 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. [Order XXXIX, Rule 3],
All orders granting or refusing injunction whether ex parte or after notice are orders under either Rule 1 or Rule 2 of Order XXXIX, except when injunctions are granted under inherent powers, and Rule 3 only seeks to regulate the mode in which the jurisdiction under. Rules 1 and 2 is to be exercised.
When a party makes an application for an immediate and ex parte order of injunction and the court refuses to grant such an injunction and instead issued notice of the application to the opposite party, the order of refusal would be an order under Rule 1 or Rule 2, as the case may be, and not under Rule 3 and hence appealable under Order XLIII, Rule 1 (r).
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 so to do, it shall record its reasons for such inability. (Order XXXIX, Rule 3-A).
Inherent jurisdiction to issue temporary injunction:
The courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provision of Order XXXIX, C.P.C., if the court is of opinion that the interests of justice require the issue of such interim injunction.
It was observed by their lordships of the Supreme Court in the above case that it is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.
The effect of the expression “if it is so prescribed” in S. 94 is only this that when the rules in Order XXXIX, Civil Procedure Code, prescribed1 the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice but is merely to see whether the circumstances of the case bring it within the prescribed rule.
If the provisions of S. 94 were not there in the Code, the Court could still issue temporary injunction, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court’s exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so.
It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of S. 94 of the Code have their effect and not in taking away the right of the Court to exercise the inherent power.
Section 151, C.P.C. itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it.
The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court there is no question of implying any powers outside the limits of the Code.
Thus there being no such expression in S. 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code, the courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX, C.P.C., if the court is of opinion that the interests of justice require the issue of such interim injunction.
Consequence of disobedience or breach of 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. [Order XXXIX, Rule 2-A].
Violation of injunction order—Order of detention and attachment of property set aside:
Where defendant was said to have raised construction on disputed site in status quo order passed by Court. Construction on the disputed site had been raised by defendant much prior to filing of suit. Photographs relief by plaintiff was not shown to be connected with site in dispute.
Even report of Commissioner was found to be defective. Main suit for injunction had been dismissed by trial Court. Held, that in the absence of conclusive proof of violation of status quo order, order of detention and attachment of property of defendant was liable to be set aside.
Disobedience of injunction by defendant’s agent:
A person is liable to be proceeded against under Order XXXIX, Rule 2-A, C.P.C. (Rule 3 of the old Code) even if he was not personally a party to the suit provided he is shown to have been agent or servant of the defendant and to have violated the order of injunction in spite of knowledge that there was such an order.
The expression ‘person’ occurring in sub-rule 2A was employed merely compendiously to designate everyone in a group, defendant, his agent, servants and workmen and not for excluding any defendant against whom the order of injunction has primarily been pressed.
Hence in cases where the State is the defendant against which an order of injunction has been issued, it is ‘expressly’ named in the clause and not even by necessary implication. Otherwise the order of injunction would be frustrated and the power rendered ineffective and unmeaning if the machinery for enforcement specially enacted did not extend to everyone against whom the order of injunction is directed.
Reference be made to Form 8 of Appendix F of the Code which reads:
“This Court doth order that an injunction be awarded to restrain the defendant CD, his servants, agents and workmen from”
It is clear from a perusal of Rule 2-A of Order XXXIX and Order XLIII, Rule 1 (r) that an appeal lies against an order passed under Rule 2-A of Order XXXIX.
In cases of disobedience or breach of injunction order .issued temporarily during pendency of suit either under Rule 1 or Rule 2 of Order XXXIX, C.P.C., it is inexpedient to invoke and exercise contempt jurisdiction. In such cases action is contemplated by the court which issued the injunction order under Rule 2A of Order XXXIX, C.P.C.
It is well settled principle of law that when there is a special law and general law, the provisions of special law prevail over general law and since special procedure and provisions are contained in the Code of Civil Procedure itself under Order XXXIX, Rule 2A for taking action for the disobedience of an order of injunction, the general law of contempt of court cannot be invoked, Contempt jurisdiction may not be invoked in such cases, which is primarily reserved for what essentially brings the administration of justice into contempt or unduly weaken it.
The disobedience of injunction is a civil contempt. Strictly speaking, it does not fall within S. 2 (b) of Contempt of Courts Act. It is specifically dealt with in Order XXXIX, C.P.C. But it is not a criminal contempt.
Breach of Injunction:
According to fact situation in each case for breach of injunction the court can order detention of disobeying party or attach his property or both steps can be resorted to. In case of execution of a decree in addition to above courses, the court can set performance required in the decree through some other person appointed at the cost of the judgment-debtor.
The whole operation is for the enforcement of the decree. Where the direction or injunction is subsequently set aside or if it is satisfied the action gets dissolved. Thus where a wall of obstruction in disobedience of order of injunction was later on removed and unconditional apology was tendered there is no necessity to put him in prison.
The person disobeying injunction order can be punished for violation of interim order even if ultimately it is found that the civil court had no jurisdiction to entertain the suit itself. Not penalising for such disobedience would be subversive of rule of law and would seriously erode the dignity and authority of the courts.
Temporary Injunction in favour of defendant:
From the language of Rule 2 of Order XXXIX it is plain beyond controversy that a temporary injunction can be asked for by and granted only to the plaintiff and this contention is also supported by Kangabam Birmongal Singh v. Laimayam Ningol Aribam Ongbi Madhabi Devi.
It was contended that a temporary injunction could not be granted in favour of the defendant under S. 151, Code of Civil Procedure, also. This contention must be rejected as untenable in view of the Supreme Court decision in the case of Manohar Lal Chopra v. Rai Bahadur Rao Seth Hira Lai.
In this case the Supreme Court held that the courts possess power to grant temporary injunction in a given case not strictly covered by Order XXXIX with a view to do justice to the parties. The question still remains whether temporary injunction could be granted by the trial court in favour of the defendant in exercise of inherent powers under S. 151, Code of Civil Procedure.
Such injunction can be granted by a court in suitable cases under its inherent powers for the ends of justice in favour of the defendant and against the plaintiff as held by the Supreme Court in Manohar Lai Chopra’s case. If a temporary injunction can be granted under S. 151 in favour of the plaintiff, there appears to be no reason why in suitable cases temporary injunction cannot be granted by the Court under its inherent powers in favour of the defendant also; and there is no substance in the agreement that this relief could be obtained by the defendant only by filing a regular suit for permanent injunction against the plaintiff.
The case Collison v. Warren, cited in the English Annual Practice is also very instructive in this connection. Buckly, J. posed with this question at the initial stage as to whether the defendant can move for an injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross-action and answered the same in the light of earlier authorities by saying that “in some cases and only in some cases he can, viz., where his claim to relief arose out of the plaintiff’s cause of action or was incidental to it.” Similar view was expressed in the case of Rattu v. Mala.
In circumstances which are of an exceptional nature the courts can interfere in favour of the defendant for the ends of justice and issue an injunction on the defendant’s motion restraining the plaintiff if the defendant’s claim to such relief appears to arise out of plaintiff’s cause of action or was incidental to it for otherwise it would be patently unjust to drive the defendant to a separate litigation and thereby to take upon himself, the burden of some additional expenditure if the relief for temporary injunction arises out of plaintiff’s cause of action in the suit pending against him or is incidental thereto.
Termination of Injunction:
An injunction granted pendente lite ends with the suit. An interlocutory injunction in a suit for perpetual injunction is dissolved ipso facto by the decree granting perpetual injunction; in case of refusal it is discharged.
Since the sale certificate has legal validity and force unless set aside, thus injunction restraining auction sale of mortgaged property can be granted.
No injunction for restraining defendant from constructing factory:
Where licence for running factory was duly granted under Kerala Panchayat Act, Sections 96, 97, the manufacturing activity was yet to commence and no actionable nuisance was caused to the plaintiff but he filed a suit on the ground that manufacturing activity would cause pollution
and spread diseases. Injunction was not granted as the suit would lie only after cause of action had erupted on account of manufacturing activity.
Interim injunction for air time in Indian territory in respect of cricketing events.—Where all commercials which were to be shown during telecast of cricket matches were only those which were provided and permitted by the petitioner M/s. Buddha Films Pvt. Ltd. The respondent, Prasar Bharati superimposed its website address of Doordarshan which passed through bottom of screen, held that it will amount to advertisement or displaying of the branded graphic having commercial value. The said action of the displaying website on day-to-day basis by the respondent was irreversible action which not only caused financial loss but also resulted in irreparable injury in terms of customers and viewership. Therefore, balance of convenience was in favour of petitioner and respondents were liable to be injected from superimposing any logo, commercials and branded graphics which were not supplied by the petitioner.
Breach of injunction:
Even though the case was decided on 9-2-1998, the proceedings initiated by the petitioners for violation of the order dated 3-11-1993 have to continue. There is no automatic termination of those proceedings as construed by the Courts below.
The view taken by the trial Judge cannot be sustained in view of the position noted above. The reason which persuaded the appellate Court to dismiss the appeal primarily on the ground that no such appeal was maintainable has also to be set aside.
Effect of private alienation after the issue of temporary injunction:
The effect of a temporary injunction is not to make a subsequent alienation of the property void. Any mortgage or sale of property by a party in contravention of an injunction is not illegal and void. The only penalty that the person disobeying the order of injunction incurs is that prescribed by Rule 2-A of Order XXXIX, namely, that the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and sold for awarding out of the sale proceeds compensation to the party on whose application the injunction was granted and he may also be detained in the civil prison for a term not exceeding three months.
Order for injunction may be discharged, varied or set aside:
An order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order : Provided that in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:
Provided further that where an order of injunction has been passed after giving to the party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of the party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to the party. [Order XXXLX, Rule 4].
Order for temporary injunction—when can be interfered in revision:
If the trial Court or the lower appellate Court is found to have passed an order of temporary injunction in exercise of its power either under Order XXXIX, Rule 1, C.P.C. or under Order XXXIX, Rule 2, C.P.C. in clear breach of the said propositions, the same cannot be stated to have been passed in exercise of the jurisdiction vested in it under the said provisions of C.P.C. and, therefore, that order would be liable to interference and will have to be set right by this Court in exercise of its revisional jurisdiction under Section 115, C.P.C.