Courtesy: Harsh Vardhan
An injunction is an order by which a person is required to do (mandatory injunction) or refrain from doing an act (prohibitory injunction). Injunctions are of two kinds, permanent and temporary. A temporary injunction aims to preserve the status quo and protect the rights and interests of the parties till the final order of the Court. Such orders are passed to prevent irreparable loss and to ensure that the final decree of the Court is not rendered ineffective. Considering their immediate impact on the legal rights of the parties, granting or refusing temporary injunctions becomes the subject of challenge before the appellate courts, as litigation before civil courts often takes time.
Section 37 of the Specific Relief Act, 1963 classifies the injunction into temporary and perpetual. The provision reads as follows:
“37. Temporary and perpetual injunctions.—(1) 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).
(2) 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. ”
The Civil Procedure Code provides for Supplemental Proceedings under Section 94. Section 94(c) of the CPC empowers the civil court to grant a temporary injunction as well as punish for its disobedience to meet the ends of justice. Section 94 reads as follows:
94. Supplemental proceedings.—In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, —
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient.
In the case of Vareed Jacob vs. Sosamma Geevarghese and others reported in (2004) 6 SCC 378, the Hon’ble Supreme Court has traced the provision which empowers the civil courts to pass the order of temporary injunction, and held as under:
10. In the case of Jagjit Singh Khanna v. Dr. Rakhal Das Mullick [AIR 1988 Cal 95 : (1988) 92 CWN 190] it has been held that a temporary injunction may be granted under Section 94(c) only if a case satisfies Order 39 Rule 1 and Rule 2. It is not correct to say that the court has two powers, one to grant temporary injunction under Section 94(c) and the other under Order 39 Rules 1 and 2. That Section 94(c) CPC shows that the court may grant a temporary injunction thereunder, only if it is so prescribed by Rule 1 and Rule 2 of Order 39. The court can also grant temporary injunction in exercise of its inherent powers under Section 151, but in that case, it does not grant temporary injunction under any of the powers conferred by CPC, but under powers inherent in the constitution of the court, which is saved by Section 151 CPC.
11. The above discussion shows that the source of power of the court to grant interim relief is under Section 94. However, exercise of that power can only be done if the circumstances of the case fall under the rules. Therefore, when a matter comes before the court, the court has to examine the facts of each case and ascertain whether the ingredients of Section 94 read with the rules in an order are satisfied and accordingly grant an appropriate relief. It is only in cases where circumstances do not fall under any of the rules prescribed that the court can invoke its inherent power under Section 151 CPC. Accordingly, the courts have to grant relief of attachment before judgment, if the circumstances fall under Order 38 CPC. Similarly, courts will grant temporary injunction if the case satisfies Order 39. So depending on the circumstances falling in the prescribed rules, the power of the court to grant specified reliefs would vary. Therefore, each set of rules prescribed is distinct and different from the other and therefore, one cannot equate rules of temporary injunction with rules of attachment before judgment although all are broadly termed as interlocutory orders.”
Order XXXIX (39) Rules 1 and 2 of CPC lay down the cases in which temporary injunction may be granted. Rule 1 states that a temporary injunction may be granted in cases where it is proved that:
(a) 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.
(b) the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors.
(c) the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
It is to be noted that the granting of a temporary injunction is at the discretion of the court. Therefore, the above conditions must be proved in order to get a temporary injunction.
Further, Rule 2 of Order 39 of the Civil Procedure Code provides for an injunction to restrain or prevent the continuance of breach. If an injury is caused due to breach of contract, the plaintiff can pray for a temporary injunction.
What are the conditions for grant of Temporary injunction which must be established before the Civil Court?
In the landmark case of Kashinath Sansthan v. Srimad Sudhindra Thirtha Swamy, AIR 2010 SC 296, the Supreme Court reiterated the conditions to grant a temporary injunction, which are as under:
- Prima Facie Case: The party must show they have a prima facie case to go for trial.
- Balance of Convenience: The balance of convenience must be in favour of the party seeking the injunction.
- Irreparable Loss and Injury: The party must demonstrate that they will suffer irreparable loss and injury if the injunction is not granted.
It is to be noted that the court further held that if the condition of Prima facie case is not met, the question of the other two conditions becomes immaterial. In such instances, the court cannot grant an injunction, even if the other two conditions are met.
Consequently, explaining the ambit of the prima facie case, the Supreme Court in the case of Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79, held that a prima facie case does not mean a case proved to the hilt, but a case which can be said to be established if the evidence which is led in support of the same were believed while determining whether a case is prima facie one or not. The relevant consideration is whether, on the evidence led, it was possible to arrive at the conclusion in question or not.
Further, in the case of Dalpat Kumar v. Prahlad Singh, 1991 SCC OnLine SC 345, the court clarifies the three essential conditions for a temporary injunction. The Hon’ble Apex Court held that the terms “prima facie case”, “balance of convenience”, and “irreparable loss” are not mere “rhetoric phrases for incantation”, and further observed that the failure of applying the tests by the High Court may lead to a “manifest error of law”, and hence, may be liable to be set aside.
What is the consequence of Non-compliance or Breach of Injunction?
Rule 2A of Order 39 under the Civil Procedure Code provides for the consequences for the disobedience or breach of injunction, and the power is traced from Section 94 of the Civil Procedure Code, 1908. As per the rule, breach or disobedience of injunction may result in –
- Ordering of the attachment of property (only up to one year)
- Detention in the civil prison
- In case where the breach continues for more than one year, the property attached may be sold.
How can an Order on the application for temporary injunction be challenged?
The Parties have the statutory remedy to challenge the order passed on the application for temporary injunction before the Appellate Court under Section 104 of the Civil Procedure Code, 1908 read with Order 43 Rule 1(r) CPC. Order 43 Rule 1(r) of the Civil Procedure Code is as follows:
1. Appeal from orders.—An appeal shall lie from the following orders under the provisions of section 104, namely: —
(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;
Thus, whenever an appeal has to be filed against the order of temporary injunction, the aggrieved party may file the civil appeal before the competent appellate court. The appeal is generally filed before the Court of the District Judge or the concerned High Court, depending upon the hierarchy of the court that passed the order as per the pecuniary jurisdiction. If the appeal fails before the District Court, the aggrieved party may approach the Hon’ble Allahabad High Court under Article 227 of the Constitution of India. Furthermore, if the appeal fails before the High Court, then a petition may be filed before the Hon’ble Supreme Court.
What are the limitations upon the Appellate Court in appeal against orders granting or refusing temporary injunction?
In the case of Wander Ltd. v. Antox India P. Ltd, 1990 SCC OnLine SC 490, the Supreme Court laid down the principles regarding the limitation on an appellate court’s power to interfere with the temporary injunction order. The court held the following principles:
- The appellate court shall not interfere with the exercise of discretion of the court of first instance and substitute its own discretion merely because it would have reached a different conclusion if it had considered the matter at the trial stage,
- Interference is only justified if the discretion was shown to have been exercised:
- Arbitrarily, capriciously, or perversely,
- By ignoring the settled principles of law regulating the grant or refusal of interlocutory injunctions.
- An appeal against the exercise of discretion is considered an “appeal on principle”. If the trial court exercised its discretion reasonably and in a judicial manner, the appellate court should not reassess the material to reach a contrary conclusion.
How can one expedite the hearing on the application for temporary injunction?
For expeditious disposal of the Application under Order 39 Rules 1 and 2 of the Civil Procedure Code, 1908, a party can approach the Hon’ble Allahabad High Court by means of a Petition under Article 227 of the Constitution of India, praying for expeditious disposal of the application. The Allahabad High Court has passed various orders disposing of the petitions, directing the concerned Civil Courts to expeditiously dispose of the application for temporary injunction within a reasonable time.