Injunction

An injunction is an order of the court gives a direction to a party to the litigation to do or to refrain from doing an act. An injunction looks to the future. The order may restrain the defendant by its owners, directors, employees, or solicitors from doing the prohibited act. Injunctions are granted at the discretion of the Court. The court may grant or refuse this remedy and when remedy by way of damages is a sufficient relief, the injunction will not be granted.

In Mahadev v. Narayan, (1904) 6 Bom. L.R. 123 case, the Court observed that an injunction may take either a negative or positive form. It may require a party to refrain from doing a particular thing or do a particular thing.

Types of Injunction:

On the basis of the period for which the injunction is applicable, the injunction is classified into two types a) Temporary Injunction and b) Permanent Injunction. An aggrieved person may seek either temporary or permanent injunctions.

Temporary Injunction:

A temporary or interim injunction, restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further orders of the Court. It is provisional. It is regulated by the provisions of Order 39 (rr 1 and 2) of the Code of Civil Procedure, 1908 and may be granted at any stage of the suit.

The temporary injunction does not mean determination in the favour of the plaintiff but simply shows that there is a substantial question requiring consideration. If the Court after fully going into the matter, finds that the plaintiff is entitled to relief, the temporary injunction will be replaced by a perpetual or permanent injunction.

According to Section 37(1) of the Specific Relief Act, “Temporary injunctions are such as are to continue until a specific time, or until the further order of the court, and they maybe granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).”

A temporary injunction is of two types, one granted without finally disposing of the application for temporary injunction to operate immediately till the disposal of the said application and other granted while finally disposing of the main application generally till the disposal of suit. The former injunction is generally called ad interim injunction and the latter is called temporary injunction.

The grant or refusal of a temporary injunction is governed by three well established principles:

1. the existence of a prima facie case (The plaintiff has a strong case for trial and on the facts that the plaintiff is very likely to succeed in the suit);
2. the likelihood of irreparable injury (an injury that cannot be adequately compensated for in damages) if the injunction is refused; and
3. that the balance of convenience is in favour of the one seeking such relief. (a showing that inconvenience to the plaintiff if temporary injunction is withheld exceeds the inconvenience to the defendant if he or she is restrained).

In Prem Chand v. Manek Chand, AIR 1997 Raj 198 case, the Court held that the Court has no jurisdiction to grant by way of interim relief what could never be granted in the interim relief in the main suit itself.

In Ajmer Khan v. State of Punjab, AIR 1991 P&H 12 case, the Court held that if a Court has no jurisdiction to entertain the main suit: (i) then it cannot deal with an application of temporary injunction and (ii) it must return or reject the plaint as the case may be.

Permanent Injunction:

A permanent injunction restrains a party forever from doing the specified act and can be granted only on merits at the conclusion of the trial after hearing both the parties to the suit. If the Court after fully going into the matter, finds that the plaintiff is entitled to relief, the temporary injunction if any will be replaced by a perpetual or permanent injunction.

According to Section 37(2) of the Specific Relief Act, “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.”

Perpetual injunctions are regulated by Ss 55-57 of the Specific Relief Act, 1877.

If the damages do not adequately provide relief or where the injunction would prevent multiplicity of proceedings, the Court may permanently restrain the defendant from continuing an act.

In Ram Baj Singh v. Babulal, AIR 1982 ALL 285 case, where hazardous dust from a brick grinding machine polluted the air of a neighboring medical practitioner’s consulting room, the polluter was permanently restrained from operating the machine.

In Seaward v. Paterson, [1897] 1 Ch 545 case, the plaintiff had obtained a permanent injunction restraining the defendant, his tenant, from interfering with the quiet enjoyment of the plaintiff and other tenants living in the vicinity of the demised premises.

On the basis of the order of injunction (To make to do or to stop to do) injunctions are classified into two types a) Mandatory injunction and b) Prohibitory injunction.

Mandatory Injunction:

Mandatory injunction is an order which requires the defendant to do some positive act. For example, if defendant construct a wall which is obstructing plaintiff’s right of light, then the court ask the defendant to demolish the wall is a mandatory or positive injunction.

Prohibitory Injunction:

Prohibitory injunction is an order which forbids the defendants from doing some act which infringes the lawful rights of plaintiff. For example, if defendant is going to construct a wall which can obstruct plaintiff’s right of light, then the court ask the defendant not to construct the wall is a prohibitory or negative injunction.

A party that fails to obey an injunction:

• faces criminal or civil penalties
• possible budgetary sanctions
• imprisonment
• charged with contempt of the court

Difference Between Stay and Injunction:

Injunction and stay order though synonymous are very different in nature.

Stay order	Injunction Order
An order of stay indicates stoppage, arrest, or suspension of judicial proceedings.	Injunction means restraining or preventing a person from commencing or continuing an action
It is primarily passed against the execution of a decree.	It gives a direction to a party to the litigation to do or to refrain from doing an act.
It is addressed to court for restraining itself to proceed further.	It is issued to the party.
It operates only when it is communicated to the court to which it is issued.	It becomes effective as soon as it is issued.
Proceedings taken in violation of it are void	Proceedings taken in violation of it are not void but subject to punishment.

Order of Stay:

An order of stay indicates stoppage, arrest, or suspension of judicial proceedings. A stay is made against the execution of a decree to enable the judgment-debtor (the one against the interests of whom the decree has been passed) to appeal to an appellate court against such a decree (Order 21, Rule 26; Order 41, Rule 5 the CPC, 1908). Such an order prohibits commencement of any proceeding for execution of the said decree. An order of stay of proceedings may also be made against a sale (Order 21, Rule 59), in a suit against a corporation (Order 30), in a suit involving a minor (Order 32), interpleader suits (Order 35), summary suits (Order 37), in case of reference to a High Court (Order 46). An order of stay of proceedings is available to the Civil Courts by virtue of their inherent power under Section 151 as well as to the Supreme Court and the High Courts.

Characteristics of the Injunction

To grant an injunction is a discretionary power of the court:

The court has got discretionary power to grant a temporary injunction. Discretion should be applied by the court judicially, reasonably, and on sound legal principles. An injunction should not be granted when it will adversely affect the defendants. Equitable relief should be the basic criteria which should be in the mind of the court while granting the temporary injunction.

In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 case, the Court observed that the grant of an injunction being equitable remedy, it is in the discretion of the Court and such discretion must be exercised in favour of the plaintiff only if the Court is satisfied that, unless the defendant is restrained by an order of injunction, irreparable loss or damage will be caused to the plaintiff. The Court grants such relief ex debito justitiate, i.e. to meet the ends of justice.

Injunction is an equitable remedy:

Power to grant an injunction is equitable in nature. It cannot be claimed by any party as “Right” nor a court would grant such relief as “a matter of course”. Hence before granting such relief the court should adhere to equitable principles and can grant only if justice, equity, and good conscience require.

In Agricultural Produce Market Committee v. Girdharbhai Ramjibhai Chhaniyara, AIR 1997 SC 2674 case, the Supreme Court has held that “a temporary injunction can be granted only if the person seeking the injunction has a concluded right, capable of being enforced by way of injunction.”

An injunction can be prayed by any party of the suit:

In Gujarat Bottling Co. Ltd. V. Coca Cola Co., AIR 1995 SC 2372 case, the Court held that it is not the plaintiff alone who can apply for an injunction. A defendant may also make an application for grant of an injunction against plaintiff.

 In Satyabhama Amma v. Vijaya Amma, AIR 1995 Ker 74 case, the Court held that under Order 39, r 1, clause (a) both the plaintiff as well as the defendant can approach the Court for temporary injunction.

An injunction can be issued only to the party of the suit:

In L. D. Meston School Society v.  Kashi Nath, AIR 1951 All 558 case, the Court held that an injunction may be issued only against a party and not against a stranger or a third party.

In Modi entertainment Network v. W.S.G. Cricket PTE Ltd., AIR 2003 SC 1177 case, the Court held that normally, injunction can be granted against persons within the jurisdiction of the Court concerned.

In Varanasaya Sanskrit Vishwavidyalaya v. Rajkishore, AIR 1977 SC 615 case, the Court held that an injunction cannot be issued against a court or judicial officer.

The burden of proof lies on the plaintiff:

In Uttara Bank v. Macneill & Kilburn Ltd., 33 DLR  case, the Court observed that the burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favour.

In Multichannel (India) Ltd. Mumbai v. Kavitalaya Productions Pvt. Ltd. Chennai, AIR 1999 Mad 59 case, the court observed that an injunction will not be granted where the plaintiff has a remedy by way of damage. The injury must be irreparable and it must be continuous. By the term ‘irreparable injury’ is meant injury which is substantial and could never be adequately remedied or atoned for by damages, an injury which cannot possibly be repaired.

In Yogesh Agarwal v. Sri. Rajendra Goyel, 2014(3) ARC 427 case, the Court held that the court must be satisfied that the comparative mischief, hardship or the inconvenience which is likely to be caused to the applicant by refusing injunction will be greater than that which is likely to be caused to the opposite party by granting it.

Principles of Granting Injunction:

The court has got discretionary power to grant a temporary injunction. Discretion should be applied by the court judicially, reasonably, and on sound legal principles.

In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 and Transmission Corporation of A.P. Ltd. v. Lcanco Kondapilli, (2006) 1 SCC 540 cases, the Court held that before granting the temporary injunction the court must satisfy the following aspects

1. Whether the plaintiff has a prima facie case?
2. Whether the plaintiff would suffer irreparable injury if his prayer for a temporary injunction is not granted?
3. Whether the balance of (in)convenience is in favour of the plaintiff?

These three principles are considered as “triple test” for grant of interim injunction and can be described as “three pillars” on which every order of injunction rests. Let us discuss these three principles in detail in the next article.

Conclusion:

An injunction is an order of the court gives a direction to a party to the litigation to do or to refrain from doing an act. An injunction looks to the future. An injunction may be temporary or permanent. The court has got discretionary power to grant a temporary injunction. Discretion should be applied by the court judicially, reasonably, and on sound legal principles.