Temporary Injunctions: Meaning and Types

This article titled ‘Temporary Injunctions: Meaning and Types.’ is written by Devanjali Banerjee and discusses the concept of temporary injunctions under the Code of Civil Procedure.

I. Introduction

An injunction is a judicial remedy that functions to prohibit persons (usually intended for the opposite party in a suit) from doing a specified act or mandating them to desist from committing some wrong or injury.[1] Temporary injunctions are a species of discretionary remedies that civil courts are empowered to issue under the Code of Civil Procedure, 1908.

Given as temporary injunctions are reliefs that can be availed by parties at any time after the institution of a suit and before the final disposal of the suit, there are rules of procedure that govern them. Order 39, Rules 1-5 of Code of Civil Procedure, 1908 (‘the Code’) deals with temporary injunctions.

What is an injunction?

As mentioned above, an injunction is a judicial remedy that functions to prohibit persons (usually intended for the opposite party in a suit) from doing a specified act or mandating them to desist from committing some wrong or injury.[2] The implication of injunction as a judicial remedy is that they are awarded by courts as relief on a case-to-case basis. Moreover, they are declaratory reliefs and are based on equity, rather than a statutory origin.[3]

Illustration:

X lets certain land to Y, and Y contracts not to construct any permanent settlements on the same. Y is about to construct some multi-storey apartments (permanent settlements) in contravention of the contract. X may sue for an injection to prevent Y from constructing permanent settlements upon the land. After the plaint has been admitted, X may also apply for a temporary injunction, to restrain Y from further damaging acts in the land until the hearing and final disposal of the suit.

Section 94 (c) of the Code creates the substantive power for a civil court to grant temporary injunctions (‘TIs’). The section also provides for the court to commit the guilty person to civil prison in case of disobedience of the TI, and order their property attached and sold. Section 94 (c) read with Order 39 Rules 1-5 flesh out the procedure to be followed for TIs to be issued.

II. Types of Temporary Injunctions

Injunctions are of two types- temporary and permanent. TIs sustain for a specified period or until further orders of the court.[4] As equitable reliefs, they may be granted at any stage of a civil suit.[5] TIs are governed by the CPC, despite being equitable reliefs.

A permanent or perpetual injunction is governed by the Specific Relief Act, 1963[6] and can only be granted by a decree made at the conclusion of a civil suit.[7] At this point, the defendant is perpetually mandated to discontinue any acts which would prejudice the interest of the successful litigant. Further, the perpetual injunction is granted after the hearing stage and when the merits of the suit have been considered by the court.

III. Application of Temporary Injunction

1. Timing

TI’s may come up at any point in the litigation. It may be noted that as an equitable remedy, the court may rely on its inherent powers under Section 151 to issue a TI. This may be to deal with situations in case the Code does not lend itself well to a fact scenario.

As laid down in Manohar Lal Chopra v. Rai Bahadur[8], the court can indeed issue TIs for circumstances not stated in Order 39 by relying on inherent powers of the court provided in Section 151 of the Code. The Court even notes that if the provisions of Section 94 were not present in the Code, the Court could yet issue TIs but would do so in exercise of its inherent jurisdiction.

2. Considerations

The court is required to consider certain basic principles[9] before passing interim order of injunction u/ O39 R1[10]:

Plaintiff has a prima facie case of infraction of legal rights.

This implies that the plaintiff has a substantial question that requires investigation and decision on the merits of the case.

The balance of convenience is in favour of the plaintiff

The comparative hardship which likely to occur from withholding the injunction must be adjudged to be greater than not withholding the same. Sound judicial discretion must be employed by the court to consider questions of comparative hardship.

The plaintiff will suffer irreparable injury or loss which cannot be compensated in terms of money[11]

The injury here refers to a material one, not one that cannot be repaired at all.

In a case, the plaintiffs had filed for partition of joint family property and a mandatory injunction restraining the defendants from creating third-party rights in the specific properties. The court, in this case, deliberating on whether the actions of the plaintiff in entering the disputed properties following an interim order, noted that injunctions are “…discretionary and equitable relief[s]”[12]

The Court further stated that “a party who seeks equity should also do equity,” referring to the plaintiff’s petition for a mandatory injunction against the defendants. Thus, we see that the awarding of an injunction is not a matter of right, as it is a judicial remedy and based on the particular fact scenario before the court.

IV. Discussion of Order 39, Rules 1-5

1. Order 39 R1: Cases in which temporary injunction be granted

According to this provision, a temporary injunction may be granted in the following cases-

“(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,] ”[13]

In response to such situations being proved by affidavit or otherwise, the Court may order to grant a TI restraining such acts or make orders to prevent or stay the dispossession or injure being caused to the plaintiff. Such TIs may be ordered by the court as “it thinks fit”[14] until the suit is disposed of or until further orders are made by the same.

The TI is still interlocutory in nature, and are made in aid of final orders of the court. Thus, no TI shall survive after the original proceedings have come to an end.[15] This principle has been upheld in the Supreme Court in Kavita Trehan (Mrs.) & Anr. v. Balsara Hygiene Products Ltd.[16]

In another case, the Court held that the continuation of a suit that has become unviable due to the lack of a present cause of action would be an abuse of the process of court if it were not disposed of as being infructuous.[17]

The relevant facts, in this case, were that the appellant had engaged the respondent as a steamship agent for handling shipping operations in Tuticorin port. However, the appellant soon terminated the services of the respondent as they were unsatisfactory- in response to which the respondent challenged the termination in court.

The lower courts allowed the interim injunction prayed for by the respondent to restrain the appellant from interfering with the agency relationship. Subsequently, the appellant found evidence of financial irregularities on part of the respondent, and sought to terminate the agreement on this separate cause of action. In doing so the appellant sought to dismiss the first suit as infructuous as a fresh termination notice had arisen in the more recent suit.

However, the lower courts upheld the operation of the original interim injunction. On appeal, the Supreme Court, in this case, held that the lower courts have erred in “…continuing an infructuous suit just to keep the interlocutory order alive which in a manner of speaking amounts to putting the cart before the dead horse.”[18]

Thus, the Apex Court found in favour of the appellant and allowed the appeal. This illustrates that the life of a TI is not indefinite.

2. Order 39 Rules 2-2A: Injunction to restrain repetition or continuance of breach

Rule 2 provides for relief specific to suits arising out of breach of contract, in case of both quantified or unquantified damages.[19] In order for this rule to apply, the plaintiff is required to apply to the court for such a TI any time after the commencement of the suit, and either before or after the judgment.

The plaintiff may pray for the court to restrain the defendant from committing a breach of contract or impugned injury or any breach of contract or injury arising out of the self-same contract or property or right.[20]

The Court in turn can exercise its discretion to grant such TI with consideration as to the duration of the TI, on keeping an account or giving the parties giving security or other terms the court thinks fit.[21]

The consequences of disobeying the terms of the TI or breaching the TI would allow for the relevant court to exercise its discretion and-[22]

1. Order the property of the person guilty of such disobedience or breach to be attached, and
2. Order such person to be detained in civil prison for up to a 3 months term

No attachment of property done under Rule 2A(1) would operate beyond one year. However, at the end of this time, if the breach or disobediences continues, the court may direct the sale of the attached property and may award the proceeds to the injured party or other entitled parties. [23]

3. Order 39 Rule 3: Before granting the injunction, the court to direct notice to the opposite party

Generally, the court is required to issue a notice to the defendant before issuing any TI. However, where it appears that delay in sending a notice to the defendant, would defeat the object of granting the injunction, the court may issue an injunction without even giving notice to the defendant.[24] This form of injunction without notice is called an ex parte or ad interim injunction.

Where the court is satisfied that a case for the grant of ex parte injunction without issuing notice to the opposite party is made out, proviso to rule 3 statutorily obligates the court to record reasons.[25] As laid down in Shiv Kumar Chadha v. MCD,[26]

“The requirement for recording reasons for grant of ex parte injunction cannot be held to be a mere formality…Proviso to Rule 3 of Order 30 of the Code attracts the principle that of a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all.”[27]

Given that the opposite party in such a situation is restrained from exercising an impugned right under statute or common law, the procedure under this Rule is to be strictly followed. When it is granted, the plaintiff is required to send copies of the document, plaint and affidavit in support of the application of injunction to the defendant post-haste.[28]

4. Order 39 Rule 3A: Court to dispose of the application for an injunction within thirty days

In cases where TIs have been granted in favour of the plaintiff but without giving the opposite party due to notice, the court is mandated to take an effort to dispose of the application within thirty days from the date of grant of injunction.[29] In cases where such statutory compliance is not heeded by the court, the court is also mandatorily required to record its reason for its inability to do so.[30]

5. Order 39 Rule 4: Order for an injunction may be discharged, varied or set aside

The court is empowered to discharge, vary or set aside the order of injunction, on an application made by any party dissatisfied with such order. The first proviso to Rule 4

notes that if the plaintiff has made a false statement or suppressed material facts, an injunction was granted without giving notice, then such ex parte injunction is liable to be vacated by the court.

The second proviso states that the court may discharge, vary or set aside the order of injunction on an application made by a party that there is a change in circumstance or court determines that the order caused undue hardship to a party.[31]

6. Order 39 Rule 5: Injunction to corporation binding on its officers

This provision states that an injunction directed to a corporation binds not only the corporate entity but also the members and officers of the corporation whose person action the TI seeks to restrain.[32]

Thus, the injunction serves a personal injunction upon the respective officers and members apart from serving as a collective injunction upon the corporation as a whole.

V. Conclusion

The Code provides for civil courts to issue temporary injunctions either through their powers under Section 94 (c) of the Code, read with Order 39, Rules 1-5 and or inherent powers of the court under Section 151.

In both cases, the courts are endowed with discretionary power to issue reliefs of various characters- with or without giving notice to the opposite party for the same. The present article has discussed all such provisions and related case-law.

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References

[1] D.F. Mulla, The Key to Indian Practice: Summary of the Civil Procedure Code, 11^th ed., 2016.

[2] Ibid.

[3] Ryan v. P.N. Juneja & Sons, 163 (2009) DLT 14.

[4] Supra, at note 1.

[5] Ibid.

[6] Sections 38-42, Specific Relief Act, 1963.

[7] Supra, at note 1.

[8] AIR 1962 SC 527

[9] Dalpat Kumar vs. Pralhad Singh AIR 1993 SC 276.

[10] Supra, at note 1.

[11] Kishor Singh Ratan Singh Jadeja v Maruti Corporation (2009) 11 SCC 229 (238).

[12] Supra, at note 3.

[13] Order XXXIX, Rule 1, Code of Civil Procedure, 1908.

[14] Ibid.

[15] Shipping Corporation of India Ltd. V. Machado Brothers, AIR 2002 SC 350.

[16] (1994 5 SCC 380)

[17] Supra, at note 15.

[18] Ibid.

[19] Order XXXIX, Rule 2 (1), Code of Civil Procedure, 1908.

[20] Ibid.

[21] Order XXXIX, Rule 2 (2), Code of Civil Procedure, 1908.

[22] Order XXXIX, Rule 2A(1), Code of Civil Procedure, 1908.

[23] Order XXXIX, Rule 2A (2), Code of Civil Procedure, 1908.

[24] Order XXXIX, Rule 3, Code of Civil Procedure, 1908.

[25] Supra, at note 1.

[26] (1993) 3 SCC 161.

[27] (1993) 3 SCC 161.

[28] Order XXXIX, Rule 3(a) and (b), Code of Civil Procedure, 1908.

[29] Order XXXIX, Rule 3A, Code of Civil Procedure, 1908.

[30] Ibid.

[31] Hotel Leela Venture Ltd. v Yaseen Begum, 2009 (1) ALD 519.

[32] Order XXXIX, Rule 5, Code of Civil Procedure, 1908.

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