Principles Governing Issuance of Temporary Injunction

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Injunction:

An injunction is a judicial process whereby a party is ordered to do or to refrain from doing a particular act, and as such can either be mandatory or prohibitive in nature. Injunction can further be temporary or permanent.

The issuance of temporary injunction is regulated by the Code of Civil Procedure. It continues till the disposal of the suit or may be vacated earlier by the court. It cannot continue after the disposal of suit.

In pending matter:

A temporary injunction can only be granted in a pending case. A court cannot grant an injunction after the suit has been disposed of, or dismissed in default. But where a restoration application is pending an injunction can be issued under the inherent powers.

Property in dispute in the suit is in danger of being wasted:

The property in dispute refers to property which is the subject matter of the suit. There should be a danger of its being wasted etc by a party to the suit. Where the plaintiff makes out a prima facie case for possession, the defendant may be restrained from wasting or using the property. The court can restrain alienation notwithstanding the doctrine of Lis Pendens.

Wrongfully sold in execution of decree:

This clause applies where the property is not liable to be sold under that particular decree as for instance, where the property of the person other than the judgment debtor is being sold. A court can restrain the execution of such a decree even though it is being executed by a s superior court. It can even restrain the delivery of possession to the auction purchaser. An injunction is the proper remedy in a case where property is being sold wrongly.

Disposal to defraud creditor:

The property being disposed of may be moveable or immoveable. An injunction of this basis can even be granted in money suits. The intention to defraud has to be proved.

Conditions:

The following are the factors to be considered whilst determining the question of granting a temporary injunction:

Prima Facie case:

The applicant is to prove the prima facie existence of the right claimed in the suit and also its infringement. The court need not closely examine the merits of the case, nor is the applicant to be required to establish his legal title . It is sufficient if the applicant is to establish an arguable case or show that nature and difficulty of the question is such that an injunction should be issued, or in other words if the evidence were to remain as it is, the applicant should be able to show that he will get a decision in his favour and that this case is not bound to fail on account of some apparent defect in it.

Irreparable damage or injury:

The term does not refer to damage which cannot be physically repaired but to such material injury as cannot be adequately compensated. Where the loss is ascertainable in terms of money, it is not a case of irreparable loss. As such where pecuniary compensation is adequate relief, injunction will not be granted. Damages as an alternate relief are relevant only where the granting of an injunction would be oppressive to the defendant where irreparable loss is not in doubt, an injunction should not be refused merely for the reason that plaintiff could be compensated if the plaintiff ultimately succeeded.

Balance of inconvenience:

The court is required to balance the inconvenience and see whether the applicant will suffer more inconvenience by the withholding of the injunction than that which the respondent would by the granting of it. The court is required to weigh the mischief of either party i.e., to the petitioner if refuse and the respondent if allowed, and will grant the injunction only if the balance is in favour of the petitioner. Normally the balance lies in favor of continuation of a state of things, as for instance, to protect the possession of a party.

Rule 2:

Rule 2 regulates the grant of a temporary injunction in suits for injunction against apprehended breach of contract or other injury of any kind.

Breach of Contract:

An injunction can be granted restraining the beach of contract provided it is a complete contract. Where the act complained of has been done and completed, no injunction should issue.

Other Injury of any kind:

An injury results where, by an act or omission contrary to law, the rights vesting in a person are infringed. For the purpose of Rule 2 it is not essential that, the injury should have been sustained, for even a reasonable apprehension of injury will suffice.

An injunction can be issued to restrain following types of injuries.

  1. Infringement of a trade mark or design, or copy right.
  2. Trespass or nuisance.
  3. Obstruction in right of easements.
  4. To restrain disconnection of electric supply.
  5. Interference in exercise of right to property.

Disobedience:

Disobedience of injunction amounts to contempt of court and is punishable as such unless the court did not have jurisdiction to issue injunction. It is also punishable u/r 2 (3) of order 39. However, a the code provides an adequate remedy against disobedience, proceedings under the contempt of court Act 1976 are inadvisable.

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