[7:50 AM, 12/14/2018] HR Gurunathan : What are the procedures to get an injunction order and for what purposes
[12:19 PM, 12/14/2018] HR. Rajan Babu: What Is An Injunction?
• An injunction is a judicial remedy by the court in form of a prohibitory order and is a preventive relief. An order of Injunction prohibits the commission of a wrongful act that has either being threatened of or has already begun its course of action.
• A party if fails to comply with the Injunction Order granted by the competent court shall then face contempt of court or civil/criminal proceedings against them
• The injunction is an effective legal remedy to seek restraint against unlawful acts.
[12:20 PM, 12/14/2018] HR. Rajan Babu: What are the Types of Injunctions?
• Temporary Injunction–As per Section 37 (1), Specific Relief Act, 1963, ‘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)’
Provisions of such Temporary Injunctions are set out in Section 94(c) and Order 39 Rule 1 of Civil Procedure Code, 1908:
• According to Section 94 (c), A Court may, in some events, it feels required, may grant a Temporary Injunction and in event of disobedience by the person, hold him for contempt in a civil prison along with an attachment of property.
• Order 39 Rule 1, of Civil Procedure Code, 1908 states the cases in which Temporary Injunctions may be granted:
o When it is proved that the property which is the subject matter of a dispute is under a threat of being wasted, damaged or alienated by any other party, or maybe wrongfully sold in execution of a decree
o When it is proved that the other party threatens or intends, to remove or dispose of off his property with a view to defrauding his creditors
o When the plaintiff may be disposed from the property in dispute
In such situations, the competent court may issue an order of Temporary Injunction, to either maintain Status Quo or give such an order that may be in favor of one party till the time the dispute is sub juice.
• According to Order 39, Rule 2, while a suit praying for restraining the defendant from committing a breach or causing an injury, is ongoing before the court, the plaintiff at any time may present an application for Temporary Injunction relating to the same subject matter of dispute.
• Order 39 Rule 3 states that the when an application for Temporary Injunction has been made before the court, the defendant must be provided with a notice before any order is made. Though in the interest of justice, when the delay shall defeat the purpose and nullify the essence of the application. Such an ex-parte order shall be conveyed to the affected party within the shortest time span. As per Rule 3A, the application shall finally be disposed of in presence of both parties within 30 days of the ex-parte order.
• Order 39 Rule 4 states that an order for an injunction may be varied, discharged or set aside by the Court, upon an application made by any party which is not satisfied with such an order or in any other situations wherein the court deems it fit and proper.
[12:22 PM, 12/14/2018] HR. Rajan Babu: These are three elements upon which the facts require to be examined while granting a Temporary Injunction:
• Prima Facie Case- ‘Prima Facie’ means ‘on the face of it’. If upon examination of the basic facts presented, if the court feels that case is established by the party, then it may grant Temporary Injunction.
• The balance of Convenience–The court shall assess that in whose favor the balance of convenience lies, meaning thereby if the temporary injunction granted, then how and in what manner shall the parties be affected.
• Irreparable Injury–The court shall examine, if not granting the temporary injunction cause such a loss to the plaintiff which can possibly not be compensated in any monetary or other ways.
• Perpetual Permanent Injunction– As per Section 37 (2), Specific Relief Act, 1963, ‘A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff’.
It is granted upon the final hearing, after carefully assessing the arguments of both the parties, merits, evidence and all the other aspects of the dispute.
Section 38, Specific Relief Act mentions when such a type of injunction can be granted:
• To prevent the breach of an obligation existing in his favor, whether it be express or implied, subject to other provisions.
• When any such obligation arises from contract, the court may grant a perpetual injunction, subject to the rules and provisions mentioned in Chapter II.
• When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely
o where there is no standard for calculating the actual damage caused, or likely to be caused, by the invasion
o where the invasion is such that monetary compensation will not be adequate
o Where the injunction is necessary to prevent a multiplicity of judicial proceedings.
o where the defendant is a trustee of the property for the plaintiff
• Mandatory Injunction – As per Section 39, Specific Relief Act, 1963, Mandatory Injunction is ‘When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts 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 performance of the requisite acts’.
Thus, mandatory injunctions granted
o so as to prevent the breach of an obligation
o when there is a necessity to compel the performance of certain acts,
o then a competent court may enforce the obligation
o as a discretionary relief
[12:24 PM, 12/14/2018] HR. Rajan Babu: When Can a Prayer For Injunction Be Refused By The Court?
As per Section 41, Specific Relief Act, 1963, an injunction cannot be granted
1. To restrain a person from instituting any criminal proceeding.
2. To restrain a person from instituting any proceeding in a court, which is not subordinate to the court approached?
3. to restrain a person from applying to any legislative body
4. to prevent an act, on the ground of nuisance, where it is not clear reason that it shall be a nuisance
5. when an equally effective relief can be obtained, an example where damages may be an appropriate remedy,
6. When the plaintiff has no personal interest in the matter.
7. When the injunction does not seem appropriate remedy on account of the conduct of the party praying for an injunction
8. Where the injunction would operate inequitably.
[12:25 PM, 12/14/2018] HR. Rajan Babu: What is the Consequence of Disobedience or Breach of Injunction?
• As per Order 39 Rule 2A, Civil Procedure Code, 1908, in case of
o disobedience of any injunction granted
o disobedience of any other order made under Order 39 rule 1 or rule 2
o breach of any of the terms on which the injunction was granted;
the Court granting the injunction or making the order, or any other Court to which the suit or proceeding is transferred, may order the property of the person in contempt to be attached, and may also order such person to be detained in the civil prison for a term not more than three months, unless released before the mentioned time as per court’s order.
• The attachment made as per this provision shall not remain in force for a period of more than one year. If such contempt continues till the time then the attached property may be sold and the injured party may be compensated with the number of proceeds.
• It has been the observation of the courts that the primary objective of the said provision is not to punish a person in contempt, but to enforce the order.
• The Permanent Injunction is a decree in itself and thus, remedies of its breach lie in Order 21 Rule 32.
o The decree may then be enforced by the detention of the defaulter in the civil prison, or by the attachment of his property, or both.
o If the defaulter is a corporation, the decree may also be enforced, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers
o Where any attachment as per the above rules has remained in force for 6 months and the judgment-debtor has yet not obeyed the decree, the attached property may be sold; and the decree-holder may be compensated out of the proceeds
o Where the judgment-debtor has obeyed the decree and paid all costs of executing it and no application to sell of the attached property has been made, or if made, has been refused, the attachment shall cease to exist.
In conclusion, the Injunctions are not a matter of right but a complete discretion of the court. The court thus acts judicially as per facts of each case before granting an injunction.
[12:26 PM, 12/14/2018] HR. Rajan Babu: Though a lengthy one. had split into parts for better understanding.
[12:38 PM, 12/14/2018] HR. Rajan Babu: In India, a restraining order is issued in form of an injunction, which is a judicial remedy that mandates a person to do or refrain from doing something. Section 94, 95 and Order 39 of the Code of Civil Procedure, 1908 lay down the procedure of granting the injunction, along with Section 36- 42 of the Specific Relief Act, 1963.
There is two types of injunctions enforceable in India viz. temporary and perpetual injunction, which can be preventive, restrictive, prohibitive and mandatory in nature.
Temporary Injunction: A temporary injunction is issued by the court for a limited time, or till the final order of the court. It is passed any time during a case before the court announces its final decision when immediate relief is required for the victim.
Perpetual Injunction: A perpetual injunction is permanent injunction in India issued by the court to restrain a person permanently. When a perpetual injunction is passed, a person is prohibited from doing certain acts indefinitely. It is passed through a final decree of the court.
[12:38 PM, 12/14/2018] HR. Rajan Babu: To get injunction order in India an application has to be filed through a civil lawyer before the appropriate court or tribunal where your case is being heard. Specific Relief Act Section 38(3) lays down the situations in which a perpetual injunction can be granted by the court-
• To prevent the breach of an obligation existing in the person’s favour who seeks such injunction.
• When any an obligation arises from a contract.
• When the person against whom the injunction is sought invades or threatens to invade the right to enjoyment of property when the person is trustee of person seeking injunction, where there is no standard to ascertain actual damage caused or likely to be caused by the invasion, where invasion is such that monetary compensation will be inadequate, or where injunction is necessary to prevent multiple judicial proceedings.
However, there are some circumstances given under Section 41 of the Specific Relief Act, in which a perpetual injunction cannot be granted
[12:40 PM, 12/14/2018] HR. Rajan Babu: The Injunction order can be got immediately based on the strong pleading with strong justification of purpose for which the Injunction order sought for.
[1:07 PM, 12/14/2018] Gurunathan HR: Thank you Ji, so elaborative, so useful info. ????
[8:21 PM, 12/14/2018] HR Murugavel Hyundai Steel: The Subordinate courts has no power to grant injunction order.
The HC shall grant based on the facts, situations, evidences, documents, reports given by police department.
When there is a CAVEAT petition in subordinate/HC, the court refrains to grant.
Grounds on which injunction order granted during industrial unrest????
1. The ongoing stike disturbs ingress/ egress of material movement.
2. Results in Violence create law and order problem.
3. Any damage/loss caused to property of employer.
4. Interested workers are picketed by the striking force.
5. Any dispute is pending before LC/Tribunal/Court.
6. Considering the public interest and employment situations.
7. Based on the inspection/ enquiry conducted and report submitted by police as directed by the Court.
8. The officials of management ghaeroed or abused.
9. When the unlawful assembly disturbs the public at large.
10. The above given reasons are convincing the Court to issue an order.
Note: When the strike continued with peaceful demonstration the Court keeps distance and rejects the prayer for injunction.
[9:51 PM, 12/14/2018] +91 98940 25131:
Sir the district munisif court are also granting interim injunctions for ingress and egress issues nowadays. In our labour case, munisiff court gave injunction. Opposite side filed writ in HC. But hc refuse to stay the lower court order and maintained status quo till the suit in lower court is disposed. All these happened in 2017.
Courtesy- Arghaa Academy of IR- Whatsapp Group