Law of Injunction: A short note by Vishweshwar Mishra

INTRODUCTION:

General: Injunction is 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 such act or if commenced, commanded to restore.

Joyce: An order remedial, the general purpose of which is to restrain the commission or continuance of some wrongful act of the party Informed.

Burney: a judicial process by which one who has invaded or threatening to invade the rights, legal or equitable, of another is restrained from continuing or commencing such wrongful act.

Lord Halsbury: An injunction is a judicial process by whereby the party is ordered to refrain from doing or to do a particular act or thing.

CHARACTERISTICS: There are three characteristics of an injunction:

1. It is a judicial process
2. The relief obtained thereby is restraint or prevention
3. The act prevented or restrained is wrongful

Note:

1. Injunction acts in personam and it does not run with the property or other rights. For example, if A secures an injunction against B forbidding him to erect a wall. A sells the property to C the sale does not carry the injunction with the property.
2. Disobedience of injunction is punishable as contempt of court.

English Law: In English law, an injunction can be granted except where:

1. The injury to the plaintiff’s legal right is small; and
2. The injury is one which is capable of being estimated in money; and
3. Such injury can adequately be compensated by money payment; and
4. In the case granting injunction would be oppressive

Indian Law: Law relating to injunction has been given in Ss. 36 to 42 of SRA, 1963 and Order 39 of the Code of Civil Procedure, 1908 according to which an injunction will be issued except where:

1. Damages are appropriate to remedy,
2. Injunction is not the appropriate relief,
3. The plaintiff is not entitled to injunction on account of his conduct,
4. The contract cannot be specifically enforced
5. The injunction would operate inequitably

Note: According to Nelson the nature of discretion and the rules for its guidance, in the case of Indian courts are same as in England.

Nature: Sec. 36 provides that:-

• Injunction is a preventive relief
• it may be granted at the discretion of the court
• it may be either temporary or perpetual.

KINDS: Injunction may be classified in two kinds, for example:

1. Prohibitory Injunction: it forbids the defendant from doing some act which will interfere with the plaintiff’s right, legal or equitable, for example restraining for committing trespass.
2. Mandatory Injunction: is an order which requires the defendant to do some positive act, for example to pull down a wall which causes obstruction to the plaintiff’s right of light.

According to Sec. 36 prohibitory injunctions are of two kinds and further Sec. 37 defines both of them as under:

1. Temporary or Interlocutory:  An injunction which continues until a specified time, or until the further orders of the court, is called temporary or interlocutory.

Note:

1. Temporary or interlocutory injunction can be granted at any stage of a suit.
2. The procedure for granting temporary or interlocutory injunction is regulated by rules contained in Order 39 Rule (1&2) of the Code of Civil Procedure, 1908.

2. Perpetual or Permanent Injunction: An injunction by which the defendant is perpetually prohibited from the assertion of a right, or from the commission of an act, which would be contrary to the right of the plaintiff, is called a perpetual or permanent injunction.

Note: A perpetual or permanent injunction can only be granted by the decree made at hearing and upon the merits of the suit.

RULES REGARDING TEMPORARY OR INTERLOCUTORY INJUNCTION

Generally speaking, three crucial elements necessary for getting temporary injunction are:

• Prima facie case
• Balance of convenience in favour of the plaintiff
• Irreparable loss

The procedure for and instances of granting temporary or interlocutory injunction is provided in Order 39 Rule (1&2) of the Code of Civil Procedure, 1908.

Rule 1: Cases in which temporary injunction may be granted:

The court may by order grant a temporary injunction where in any suit it is proved by affidavit or otherwise that:

1. Any property in dispute in a suit is in danger of being

• Wasted
• Damaged
• Alienated
• By any party to the suit or

• Wrongfully sold in execution of a decree

2. The defendant threatens or intends to remove or dispose his property with a view to defrauding his creditors
3. The defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

Note: Such injunction will be in force until the disposal of the suit or until the further order.

Rule 2: If in a suit for restraining the defendant from committing a breach of contract or other injury of any kind, the plaintiff applied to the court for injunction to restrain the defendant from committing such breach of contract or such injury, or any breach of contract or injury of a like kind arising out of same contract or relating to the same property or right, the court may grant injunction subject to such terms of duration, keeping account, giving security or otherwise, as the court thinks fit.

Rule 3: Notice to opposite party before granting injunction:

The court shall in all case, before granting injunction, direct notice of the application for the same to be given to the opposite party.

Exception: Where it appears to the court that the object of granting the injunction would be defeated by the delay, may dispense with such notice and record the same. But require the applicant, immediately after the grating the injunction, to:

1. Deliver to the opposite party or to send to him by registered post a copy of the application for injunction together with –

1. A copy of the affidavit filed in support of the application;
2. A copy of the plaint;
3. Copies of documents on which the applicant relies; and

2. File, on the day on which the injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent. (proof of service)

Rule 4: On an application from the party dissatisfied with an injunction the court may discharge, vary, set aside the order granting the injunction, if

• It is found that the party in whose instance the order has been passed has made any false or misleading statement knowingly in relation to a material particular, and the injunction has been granted ex parte.
• After hearing the opposite party the court is of the opinion that change in the circumstances make it necessary or that it has caused undue hardship to that party.

Rule 5: It provides that an injunction directed to a corporation in binding not only on the corporation itself but also on a members and officers of the corporation whose personal action it seeks to restrain.

Rule 2A & sec. 94 (c): In case of disobedience of any injunction or of its terms, the court which passes it or a court to which it is subordinate, may order the property of such person to be attached for not more than one year, but if breach or disobedience continues it may be sold and the compensation to injured party may be grated from its proceeds and rest of it would be returned to such person.

It further provides that such person can also be detained in civil prison for not more than 3 months.

Rule 3A: In case an ex parte injunction is granted the court shall have to dispose of the application finally within 30 days, otherwise to record reasons for the same.

RULES REGARDING PERPETUAL OR PERMANENT INJUNCTION

The procedure for and instances of granting perpetual or permanent injunction is provided in section 38, 41 and 42 of the Act.

1. Section 38 (1) lays down general rule regarding granting of perpetual or permanent injunction to prevent the breach of an obligation, which may be:

• express or implied
• arising out of trust, contractual, tortuous or any other legal obligation.

It states that a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether express or implied.

2. Section 38 (2) provides in case of any such obligation arising out of contract Sec. 9 to 27 of the Act would be relevant.
3. Section 38 (3) provides the instances for which permanent injunction can be granted: it provides that, when the defendant invades or threatens to invade the plaintiff’s right to or the enjoyment of property, the court may grant  a perpetual injunction where:

1. The defendant is trustee of the property for the plaintiff
2. There exist no standard for ascertaining the actual damages caused, or is likely to be caused, by the invasion.
3. The invasion is such that the compensation in money would not afford adequate relief.
4. The injunction is necessary to prevent a multiplicity of judicial proceeding.

Note: In a suit where there is no permanent injunction sought for, in the final analysis, ordinarily a temporary injunction cannot be granted. (Ishwarbhai Bhanushali Hiralal Mohanlal Nanda, 2000; Gujarat Electricity Board v. Mahesh Kumar, 1982; N.R. Dongre v. Worlpool Corpn. 1996)

4. Section 41 enumerates the instances when injunction cannot be granted: it provides that injunction cannot be granted:-

1. To restrain any person from prosecution a judicial proceeding pending at the institution of the suit in which the injunction is sought.

Exception: it can be granted to prevent a multiplicity of suit.

2. To restrain any person form instituting or prosecution any proceeding in any court not subordinate to that from which the injunction is sought.
3. To restrain any person from applying to any legislative body.
4. To restrain any person from instituting or prosecution any proceeding in any criminal court.
5. To prevent the breach of contract the performance of which would not be specifically enforceable.
6. To prevent on the ground of nuisance, an act of which it is not reasonably clear that it will be nuisance.
7. To prevent a continuing breach in which the plaintiff has acquiesced.
8. When equally efficacious relief can certainly be obtained by any other usual mode of proceeding.

Exception: It is available in case of breach of trust.

9. When the conduct of the plaintiff or his agent has been such as to disentitle him to assistance of the court.
10. When the plaintiff has no personal interest in the matter.

5. Injunction to perform negative agreement: Sec. 42:

There is an exception, contained in section 42, to the exception contained in sec. 41 (e), which provides that where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act then court may grant an injunction to perform the negative agreement.

6. Mandatory Injunction: Section 39 provides that, when in order to prevent the breach of an obligation, it is necessary to compel the performance of certain act which the court is capable of enforcing, the court may in its discretion:

• Grant an injunction to prevent the breach complained of, and also
• To compel the performance of the requisite acts.

7. Damages in lieu of, or in addition to, injunction: Sec 40 lays down circumstances when court may award damages in lieu of, or in addition to, injunction.

Sec. 40 (1) provides that the plaintiff, in a suit for perpetual injunction or mandatory injunction may claim damages either in lieu of or in substitution for such injunction, and the court may, if thinks fit, award such damages.

Sec. 40(2) provides that relief for damages can only be granted if the plaintiff has claimed such relief in his plaint or if the court had allowed him to bring it by amendment in the paint.

Note: The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.

Special Notes:

1. It should be noted that it is the discretion of the court to grant injunction as it has expressly been provided in Sec 36, but in law wherever discretion is given to any authority it has to be exercised in a judicious manner, which may be stated to be if following conditions are satisfied:

1. Prima facie case: The plaintiff must establish a prima facie case that is to say, that there is a substantial question to be investigated and that matters should be preserved in status quo until the final determination of the suit.
2. Irreparable loss: The plaintiff must establish that if it is refused irreparable loss would be caused and that there is no other remedy. An injury will be regarded as irreparable, if it cannot be measured and compensated in pecuniary terms.  
3. The plaintiff is a bone fide person.
4. Balance on convenience is in favour of the plaintiff. It means to say that the inconvenience which is likely to be caused to the defendant, by granting injunction must be less than that which is likely to arise to the plaintiff from withholding it. (Dalpat kumar v. Prahlad Singh; Gujarat Bottling v. Coca Cola Co.) (According to C.K. Thakkar, a former judge, Supreme Court, though English Courts have used the term balance of convenience, it should be balance of inconvenience. Court should grant injunction only if it satisfied that if it refuses interim injunction, greater inconvenience will be caused to the plaintiff, than that which will be caused to the defendant if it will grant it)

2. The Court who passes a decree can issue order to restrain a person from handing over property in his possession to judgment debtor; such an order is in the nature of a freezing order, Mareva injunction and order akin to a Anton Piller Order even if the property or person concerned is outside the jurisdiction of the court. (Mohit Bhargav v. Bharat Bhushan Bhargav, (2007) 4 SCC 795)
3. Requirement of applicability of provision of granting perpetual injunction:

1. Legal right, express or implied, in favour of the plaintiff
2. Instance of violation or threatening of violation of such right (Prakasho Devi v. Tarsem Lal 2003)
3. Such right is exiting
4. Fit case for exercising discretion: inconvenience likely to cause by granting must be less than which is likely to arise from withholding. (Gur v. Bhag; Raja Maheshwar Dayal Seth v. Yuvraj Dutt Singh)
5. It does not fall in restraining provisions of sec. 41 SRA, 1963 (Suryanath Singh v. Khedu Singh SC 1994)

4. A permanent injunction will be granted to prevent breach of contract only in those cases where the contract is capable of specific performance. However where a contract comprising of a positive agreement to do certain act is coupled with a negative agreement not to do a certain act, whether expressly or impliedly, it can be enforced provided that the plaintiff performed his part of the contract.
5. An injunction cannot be issued in favour of a trespasser against the true owner. (Kishan Lal v. Radheshyam, 2002)
6. The power to grant an injunction by way of specific relief is covered by SRA, 1963.
7. Injunction cannot be issued against a court or judicial officer.
8. Where the case is not covered by O. 39, interim injunction can be granted by the court in exercise of power U/s 151 CPC (Manoharlal v. Heeralal SC 1962; Tanushree v. Ishani Prasad, SC 2008)
9. In Morgan Stanley Mutual Fund v. Kartik Das Supreme Court indicated factors which should be weighed before ex parte interim injunction is granted.
10. An order granting or refusing injunction is subject to appeal.
11. An order granting or refusing an injunction is a case decided within the meaning of Sec. 115, hence subject to revision. 

Mr. Vishweshwar Mishra has done LL.B (Hons.) from BHU Law School. He is currently practising in Delhi High Court. His area of specialization lies in NI Act, Oil and Gas Law. He can be reached at vm2165@gmail.com