What is the remedy against an order refusing to grant the injunction?

Question: What is the remedy against an order refusing to grant the injunction? [U.P. H.J.S. 1995]

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Answer

Orders of injunction are passed in view of the inherent jurisdiction of the Court under Order 39 of the Code of Civil Procedure, 1908 which sets out the various circumstances in which an order of injunction can be passed.

In order to give power to the Trial Court to punish the erring Defendant committing breach of an Interlocutory Order Rule 2-A was introduced in Order 39 of the of the Civil Procedure Code, 1908. The purpose of Rule 2-A of CPC is not to punish a person who had disobeyed the Injunction Order but to enforce it. Only wilful disobedience invites penal action. Rule 2-A of Order 39 of the Civil Procedure Code, 1908 does not apply to the Final Order decree of Permanent Injunction passed by the Court at the conclusion of the hearing of the suit. Rule 2-A would apply for breach of an undertaking given to the Court.

The proceeding initiated on the ground of disobedience or breach of an Injunction order is the nature of a criminal proceeding. Here the principle of criminal law will apply and the Plaintiff will have to establish beyond any shadow of doubt that the Defendants had committed disobedience or breach of the Injunction Order even though he had full knowledge of the same.

There are also Orders of attachment before Judgment under Order 38 (2) of the Code of Civil Procedure, 1908 which are also passed.

The party committing disobedience and breach of Injunction, his property is liable to be attached and such person may also be detained in the Civil prison for a term, not exceeding three months. An attachment made under this Rule shall not remain in force for more than a period of one year.

In a case of continuation of disobedience then the attached property be sold, and out of the sale proceeds, the Court may award such compensation as it thinks fit to the injured party and the balance, if any, shall be returned to the Owner. Rule 11 of Order 39 of the Civil Procedure Code, 1908 empowers the Court to strike the defence of Defendant who commits a breach of an Order of the Injunction. The remedy for the enforcement/disobedience of either perpetual or mandatory Injunction is to proceed in accordance with Order 21 Rule 32 of the Code of Civil Procedure, 1908 by levying execution.

The Hon’ble Supreme Court of India in Surjit Singh & Ors. v. Harbans Singh & Ors, 1995 SCC (6) 50 has held that:

“ … In defiance of the Restraint Order (of the Court), the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court Orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.”

The very object for which Order 39, Rule 2A has been enacted will be fulfilled by the grant of a temporary mandatory injunction and restoration of possession of the aggrieved party. The inherent power of the Court as recognised in Section 151 of the Code is in addition to the power conferred on the Court under the provisions of the Code. All that the Court is concerned with is to prevent abuse of the process of the Court and to do justice by immediately intervening under circumstances which require such intervention by the Court.

Other Remedies

There is also a remedy available to apply for holding the violator guilty of Civil Contempt under Section 2 (b) of the Contempt of Courts Act, 1971. This remedy enables the Court to (if Contempt is proved) pass Orders for Detention of the contemnor which is a strong deterrent and usually results in the contemnor reversing the transaction or step taken in order to avoid the stringent punishment of imprisonment. In cases of Companies, the Directors can be hauled up for Contempt and punished.

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