Injunctions Generally
An injunction is a specific order of the Court forbidding the commission of a wrong threatened or the continuance of a wrongful course of action already begun, or in some case, when it is called mandatory injunction commanding active restitution of the former state of things.
According to Halsbury, “An injunction is a judiciary process whereby a party is ordered to refrain from doing or to do a particular act or thing”. In former case it is called restrictive injunction and in the latter case it is called mandatory injunction.
Characteristics of injunction:
There are three characteristics of an injunction:
1. It is a judicial process,
2. The relief obtained thereby is a restraint or prevention, and
3. The act prevented or restrained is wrongful.
4. Injunction acts in personam. It does not run with the property.
Example: A, the plaintiff, secures an injunction against B forbidding him to erect a wall. A sells the property to C. The sale does carry the injunction with the property.
5. An injunction may be issued for and against individuals, public bodies or even the State. Disobedience of an injunction is punishable as contempt of Court.
36. Preventive relief how granted.- Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
That means under Section 36 preventive relief is of two types:
1. Temporary or interlocutory injunction [Section 37(1)]; and
2. Perpetual or permanent injunction [Sections 37(2) and 38],
37. Temporary and interlocutory injunction.-
(1) Temporary in junctions 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.
(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 could be contrary to the rights of the plaintiff.
According to Section 37(1) temporary injunctions are such as are to continue until a specified 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. Therefore, characteristics of Temporary and interlocutory injunction are;
a) It is granted at any stage of a suit
b) It continue until a specified time, or until the further order of the Court; and
c) It is regulated by the Code of Civil Procedure, 1908 i.e., Order XXXIX, Rule 1 and 2.
When Temporary and interlocutory injunction is granted
According to Order XXXIX, CPC, 1908 it can be granted in two cases:
1. For protecting the interest in property. [Order XXXIX, Rule 1, CPC, 1908]
2. To restrain repetition and continuance of breach of contract. [Order XXXIX, Rule 2, CPC, 1908]
1. Temporary and Interlocutory injunction for protecting the interest in property [Order XXXIX, Rule 2, CPC, 1908]
| It provides that wherein any suit it is proved by affidavit or otherwise 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 properly in dispute in the suit, then the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders. 2. Temporary and interlocutory injunction to restrain repetition and continuance of breach of contract [Order XXXIX, Rule 2, CPC, 1908] In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgement, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract, or injury of a like kind arising cut of the same contract or relating to the same property or right. (2) The Court may be order grant such injunction, on such terms as to the of the durations injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. Injunction is a discretionary relief It should be noted that grant of injunction is discretionary with the Court. Section 36 of the Specific Relief Act, 1963 expressly lay down that “preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual.” The court will grant temporary injunction if the following conditions are satisfied: i. The plaintiff must establish a prima facie case. He is not required to make out a clear title but he must establish that there is a substantial question to be investigated and that matters should be preserved in status quo until the injunction is finally disposed of. ii. The plaintiff must prove that an irreparable injury would result if the injunction is refused and that there is no other remedy open to the applicant by which he could protect himself from the consequences of the apprehended injury. iii. The conduct of the plaintiff has not been blameworthy. iv. The balance of convenience requires that the injunction should be granted. Perpetual or Permanent injunction [Section 37(2)] According to Section 37(2), a perpetual or permanent 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. Characteristics of Perpetual or Permanent Injunction are: a) It is granted by the decree made at the hearing; b) 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; and c) It continues permanently. |
