• LAWGIC STRATUM

INJUNCTION (Temporary and Permanent)

Updated: Feb 24

Author: Manali Agrawal



INTRODUCTION:


The Injunction laws in India have their origin in the Equity Jurisprudence of England. However, England adopted this concept of injunction from Roman law. At present, the laws in India regarding injunctions are governed under the Specific Relief Act, 1963(hereinafter referred to as SRA) and the Code of Civil Procedure, 1908( hereinafter referred to as CPC)

Injunction refers to a judicial process whereby the court orders a person to abstain from doing or to do a particular act at a suit by another person. The court grants an injunction order if the act of the party is unjust, inequitable, and injurious to the plaintiff and the court is satisfied that if the injunction order is not passed, the loss incurred to the plaintiff is such that it cannot be redressed adequately even by the decree of the court. For Instance, A gave a building to B as a tenant with condition that no permanent construction is to be done. B started to build a permanent wall within the house against which A filed a suit. In this case, the court can grant an injunction order to stop the construction.


The main purpose of granting an Injunction is to prevent Irreparable loss to the plaintiff. An injunction is also ordered to fulfill the necessity of maintaining the status quo of the property in dispute so that it is not misappropriated in any way by any person during the pendency of the suit in court.


TYPES OF INJUNCTION:


Injunctions can be divided into different categories like permanent Injunction, temporary Injunction, mandatory Injunction, ad-interim injunction, preventive injunction, prohibitory injunctions, etc. However, the main types of Injunction are:

i. Temporary Injunction;

ii. Permanent/Perpetual Injunction.


Temporary Injunction:


Temporary Injunction refers to the injunction that is given for a specific or limited period of time or until the suit is disposed of or until further orders as the court deems fit. The rules regarding the Temporary Injunction are enumerated under the CPC, 1908. Temporary Injunction can only be obtained during the pendency of the trial and not independently. As per the provisions of the CPC, except in situations where the court is satisfied that the objective of Injunction will defeat due to delay in granting an Injunction order, the court is obligated to direct notice to the opposite party regarding application for the Injunction. In cases where the injunction is given without any notice to the opposite party, the court is obligated to dispose of the application within thirty days from the date on which the Injunction order is passed. [1]


Order XXXIX of the CPC 1908 lays down the cases in which the temporary Injunction can be granted. It says that the Injunction can be granted in a suit if it is proved that-

(a.) The disputed property is in danger of being wasted, damaged, or alienated by the other party; or being wrongfully sold in execution of a decree;

(c.) The defendant has threatened or has the intention to remove or dispose of the property with the intention of defrauding his creditors.

(d.) The defendant has threatened the plaintiff to dispose of the disputed property or to cause any other injury to him in relation to the property in suit.[2]


If any person does not obey the injunction order given by a competent court, the court has the power to order such person to be detained for a period of a maximum of three months.[3] And if the breach continues for more than one year, the court can sell the property and use its proceeds to compensate the injured party. In addition to this, Section 95 of the CPC imposes the penalty for a maximum of Rs. 50,000 if the Injunction is obtained on insufficient or false grounds. If any party to a suit is not satisfied with the injunction, it may file an application to discharge, vary or set aside the Injunction order.[4]


Permanent/Perpetual Injunction:


Permanent/Perpetual Injunction refers to the injunction which prohibits a person to perform a particular act permanently. It can be obtained by a decree of a competent court after deciding upon the suit. The rules regarding Permanent Injunctions are enumerated under Section 38-42 of the SRA, 1963. Section 38 of the SRA provides that a permanent injunction that can be granted:

(i) To prevent the breach of an obligation that exists in favor of the petitioner, expressly or implicitly;

(ii) If the defendant threatened the plaintiff to encroach upon his right to the enjoyment of property in cases where-

  • the defendant is a trustee of the property;

  • there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

  • the invasion is such that compensation in money would not afford adequate relief;

  • The injunction is necessary to prevent a multiplicity of judicial proceedings.[5]

SRA, 1963 provides for the situations when the Permanent Injunction cannot be granted. It cannot be granted to restrain any person from instituting or prosecuting judicial proceeding of the suit in which injunction is sought or in any criminal matter; from applying to any legislative body; to prevent the breach of a contract; to prevent an act of which it is not reasonably clear that it will be a nuisance; to prevent a continuing breach in which the plaintiff has acquiesced; when equally efficacious relief can be obtained by any other mode of proceeding; when the conduct of plaintiff or his agents is such as to disentitle him to be the assistance of the court; when the plaintiff has no personal interest in the matter.[6]


CONCLUSION:


Injunctions prohibits a person from doing a particular act and thus provide relief to the other person from the breach of his rights in situations when the monetary relief is not sufficient. It ensures that the act of one party does not interfere with the rights of the other party. The CPC, 1908 and the SRA, 1963 govern the rules of Temporary and Permanent Injunctions respectively. The court is given wide powers with respect to granting of Injunction order however, this power is to be exercised in consonance with the principles of Equity, Justice, and good conscience.


References:

[1]Rule 3A of order XXXIX of Code of Civil Procedure, 1908 [2]Rule 1 of order XXXIX of Code of Civil Procedure, 1908 [3]Rule 2 of order XXXIX of Code of Civil Procedure, 1908 [4]Rule 4 of order XXXIX of Code of Civil Procedure, 1908 [5] Section 38 of theSpecific Relief Act, 1963 [6] Section 41 of the Specific Relief Act, 1963

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