ASA University Bangladesh

Term Paper
On

Injunction
Submitted to:
Dewan Anwarul Asif
Lecturer
Department of Law

Submitted by:
Khaled Bin Mosarof
ID: 18-01-21-0031

Date: 25 August 2019

 ASA University Bangladesh

Acknowledgment
I am grateful to the God for the good health and wellbeing that were necessary
to complete this paper.

I wish to express my sincere thanks to Md. Saiful Alam, Dean, Faculty of Law,
for providing me with all the necessary facilities for the research.

I am also grateful to Mr. Dewan Anwarul Asif, lecturer, in the Department of

Law. I am extremely thankful and indebted to him, for sharing expertise, sincere
and valuable guidance and continuous encouragement extended to me.

I take this opportunity to express gratitude to all of the faculty members for their
help and support. I also thank my parents for the unceasing encouragement,
support and attention. I am also grateful to my friends and batch mate who
supported me through this venture.

Khaled Bin Mosarof

ID: 18-1-21-0031
Department of Law
ASA University Bangladesh
 Injunction
Abstract
An Injunction is a judicial process whereby a party is required to do, or to refrain from doing,
any particular act. It is a remedy in the form of an order of the court addressed to a particular
person that either prohibits him from doing a continuing to do a particular act (Prohibitory
injunction); or orders him to carry out a certain act (Mandatory injunction).
An injunction is defined in Halsbury's Laws as: “A judicial process whereby a party is ordered
to refrain from doing or to do a particular act or thing.1” Oxford dictionary meaning of word
Injunction is “a judicial warning or a judicial order restraining a person from an action or
compelling a person to carry out a certain act.

1
Halsbury's Laws of England - LexisNexis". Lexisnexis.co.uk. Retrieved 18 September 2017
Aim of the study
The Term Paper will be covering the basic theory of Injunction, which is a judicial process of
Bangladesh, to ensure justice as much fair as possible. It will cover definition, types, principle,
process, limitation of injunction.

Research Methodology
For this paper, the research is doctrinal. The information and data for the paper will be from
various books, articles and other online resources. The research will include publication
research, and other relevant sources, and will include both present and historical information
related to topic. Articles and laws related to the topic and also if there is an amendment in the
previous law will also be taken into consideration.

Limitations
The important limitation of this study is the reliance on secondary data. As the study is not
empirical so the information and research is confined to books, online resources, articles in the
newspapers and magazines.
Introduction

The law of injunction in our country is having its origin in the Equity Jurisprudence inherited
from England who borrowed it from Roman Law. It is basic principle of our law that if there
is a right, there should be a remedy. An injunction is a Judicial Remedy prohibiting persons
from doing a specified act called a restrictive injunction or commanding them to undo some
wrong or injury called a mandatory injunction and may be either temporary, interim or
interlocutory or permanent. Relief of injunction cannot be claimed as of right. It is
discretionary, equitable relief. The relief of injunction must be granted where it is absolutely
necessary. It may be granted where it would help in preservation of peace and public order.2
Where there is possibility of breach of peace of public order, the Court ought to proceed with
caution. An injunction is a remedy against an individual and should be issued only in respect
of acts done by him against whom it is sought to be enforced. Like other equitable remedies, it
has traditionally been given when a wrong cannot be effectively remedied by an award of
money damages. Injunctions are intended to make whole again someone whose rights have
been violated. Nevertheless, while deciding whether to grant an injunction, courts also take
into account the interests of non-parties (that is, the public interest). When deciding whether to
give an injunction, and deciding what its scope should be, courts give special attention to
questions of fairness and good faith. One manifestation of this is that injunctions are subject to
equitable defenses, such as laches and unclean hands.

An injunction is an equitable remedy in the form of a court order that requires a party to do, or
to refrain from doing, certain acts. A party that fails to comply with an injunction faces criminal
or civil penalties and may have to pay damages or accept sanctions. In some cases, breaches of
injunctions are considered serious criminal offenses that merit arrest and possible prison
sentences.

Emergency injunctions that are in effect only a short time are called temporary restraining
orders. Courts can also issue preliminary injunctions to take effect immediately and effective
until a decision is made on a permanent injunction, which can stay in effect indefinitely or until
certain conditions are met.

Every court is constituted for the purpose of administering justice among particles and there’re,
must be deemed to possess all such powers as may be necessary to do full and complete justices
to the parties before it.

It is a well settled principle of law that interim relief can always be granted in the aid of and as
ancillary to the main relief available to the party on final determination of his rights in a suit or
any other proceeding. Therefore, a court undoubtedly possesses the power to grant interim
relief during the pendency of the suit. Temporary injunctions are thus injunctions issued during
the pendency of proceedings.

2
Probir Neogi: Law of Specific Relief
Definition

An injunction is a judicial process whereby a party is required to do, or to refrain from doing,
any particular act. It is a remedy in the form of an order of the Court addressed to particular
person that either prohibits him from doing or continuing to do a particular act; or orders him
to carry out a certain act.

According to Encyclopedia of the Law

“An Injunction is a judicial Process by which one who has invaded or is threatening to invade
the rights, legal or equitable, of another, is restrained from continuing or commencing such
wrongful act.”3

In short,

“An injunction is a court order requiring a person to do or cease doing a specific action.”4

An injunction is defined in Halsbury's Laws as: “A judicial process whereby a party is ordered
to refrain from doing or to do a particular act or thing.” Oxford dictionary meaning of word
Injunction is “a judicial warning or a judicial order restraining a person from an action or
compelling a person to carry out a certain act.”5

3
A. W. Renton: Encyclopedia of the Law of England, Vol. 6, p. 464
4
Cornell Law School, Dictionary of Law
5
Halsbury's Laws of England - LexisNexis". Lexisnexis.co.uk. Retrieved 18 September 2017
Object

The primary purpose of granting interim relief is the preservation of property in dispute till
legal rights and conflicting claims of the parties before the court are adjudicated. In other
words, the object of making an order regarding interim relief is to evolve a workable formula
to the extent called for by the demands of the situation, keeping in mind the pros and cons of
the matter and striking a delicate balance between two conflicting interests, i.e., injury and
prejudice, likely to be caused to the plaintiff if the relief is refused; and injury and prejudice
likely to be caused to the defendant if the relief is granted. The court in the exercise of sound
judicial discretion can grant or refuse to grant interim relief.

The underlying object of granting temporary injunction is to maintain and preserve status quo
at the time of institution of the proceedings and to prevent any change in it until the final
determination of the suit. It is in the nature of protective relief granted in favour of a party to
prevent future possible injury.

The need for such protection, however, has to be judged against the corresponding need of the
defendant to be protected against injury resulting from exercising his own legal rights. The
court must weigh one need against another and determine where the balance of convenience
lies and may pass an appropriate order in exercise of its discretionary power.6

6
Probir Neogi: Law of Specific Relief
Nature of the relief

The relief of temporary injunction is an equitable relief and it is not granted where the person
applying for temporary injunction does not come with clean hands. A dishonest litigant loses
his remedy when he is guilty of misrepresentation or concealment of material facts. Temporary
injunction shall not be granted in favour of a person in unauthorised possession. But where the
applicant has been in possession of the property in suit for some time and claims title on the
basis of some documents, the question whether he is a trespasser will be decided at the trial.
Injunction will not be granted in support of illegal or unauthorized act. The court may also
refuse temporary injunction on the ground of delay, laches or acquiescence.

The court is to take into consideration the effect of issuing temporary injunction. Thus where
the plaintiff is a regular supplier of hospital goods to the Government, but its registration was
not renewed on account of failure of the plaintiff to comply with certain formality as a result
of which the Government invited open tenders and tenders from certain other suppliers were
offered and the plaintiff filed a suit and obtained interim injunction restraining the Government
from accepting other tenders, the High Court set aside the order of injunction holding that the
interest of other suppliers who submitted tenders for supplying goods cannot suffer for no fault
of their own and by granting injunction the court cannot put the other intending suppliers to
great inconvenience.

According to section 22 of Specific Relief Act,7 the jurisdiction to decree specific performance
is discretionary, and the Court is not bound to grant such relief merely because it is lawful to
do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by
judicial principles and capable of correction by a Court of appeal.

The grant of temporary injunction is discretionary with the court and a party cannot get the
relief as a matter of course. It shall not be granted merely because it is lawful to do so. It is a
power of extraordinary nature and the court is to exercise the power with caution and great
circumspection. Where the trial court as also the appellate court did not grant injunction and
in the revision filed three months after the order of the appellate court the High Court Division
granted interim injunction ex pane the Appellate Division held it to be not a proper exercise
of the discretion. The court shall grant the relief only when it is satisfied that the applicant
will suffer irreparable loss or injury if the other party is not restrained as prayed for. The court
should always be willing to extend its hands to protect a citizen who is being wronged or is
being deprived of any property without due course of law, but at the same time the judicial
proceedings cannot be used to protect or perpetuate a wrong committed by a person who
approaches the court. The same consideration applies when the other party applies for
vacating the interim relief granted by the court. The discretion has to be exercised on sound
judicial principles and not arbitrarily. Where the court did not take into consideration material
points involved in a case, the discretion has not been properly exercised. The appellate court’s
interference with the exercise of such discretion is also governed by equitable principles and
the appellate court will not interfere unless it is found that the trial court has exercised the
discretion arbitrarily or fancifully. Where temporary injunction was granted by the courts
below, the order cannot be disturbed in revision without taking into consideration the findings

7
Specific Relief Act, 1877 (Act No. I of 1877)
of fact on the basis of which it was passed. Where the appellate court set aside the order of
the trial court omitting to consider the material points, the trial court’s order was restored
When on consideration of the materials on record discretion was exercised in favour of
granting injunction, it was not interfered in revision and the Appellate Division refused to
grant leave. The Appellate Division is reluctant to interfere with an interlocutory order passed
by the courts below.
 Types
Injunctions are of two kinds:
(i) Temporary
(ii) Permanent

A temporary or interim injunction on the other hand restrains a party temporarily from doing
the specified act and can be granted only until the disposal of the suit or until the further
order of the Court. Regulated by the provision of the Order 39 of the Code of Civil
Procedure, 19088 and may be granted at any stage of the suit.

A permanent Injunction restrain a party forever from doing the specified act and can be
granted only on merits at the conclusion of the trial after hearing the both party to the suit.
It is governed by the Sections 52 to 57 of the Specific Relief Act, 1877. 9 It’s also called
Perpetual Injunction.

Injunctions are also,

(i) Preventive, prohibitive or restrictive, i.e. when they prevent, prohibit or restrain someone
from doing something; or
(ii) Mandatory, i.e. when they compel, command or order some person to do something.

8
Code of Civil Procedure, 1908 (Act No. V of 1908)
9
Specific Relief Act, 1877 (Act No. I of 1877)
Temporary Injunction

Every court is constituted for the purpose of administering justice between the parties and
therefore, must be deemed to process all such powers as may be necessary to do full and
complete justice to the parties before it.

It is a well stated principle of law that an interim relief can always be granted in the aid of and
as ancillary to the main relief available to the party on final determination of his rights in a suit
or any other proceeding therefore, a court undoubtedly processes the power to grant interim
relief during the pendency of the suit.10

Temporary injunction is mode of granting preventive relief by the court at its discretion. A
temporary injunction is also known as interim injunction.

According to order 39 of the CPC any order made temporarily prohibiting the defendant not to
alienate, or to change or to damage the property in dispute during the pendency of the suit is
called temporary injunction.

According to section 53 of the S. R. Act,11 temporary injunctions are such as are to continue
until a specified time, or until the further order of the Court. They may be granted at any period
of a suit and are regulated by the Code of Civil Procedure, 1908.

Thus, temporary injunction is regulated under the provisions of rules 1-5, order 39 of the Code
of Civil Procedure, 1908.12

10
State of Orissa vs. Madan Gopal, AIR (1952)
11
Specific Relief Act, 1877 (Act No. I of 1877)
12
Code of Civil Procedure, 1908 (Act No. V of 1908)
Object and Grounds of Temporary Injunction

The purpose of granting interim relief is the preservation of property in dispute till legal rights
and conflicting claims of the parties before the court are adjudicated.

The underlying object of granting temporary injunction is to maintain and preserve status quo
at the time of institution of the proceedings and to prevent any change in it until the final
determination of the suit.

According to Order 39 Rules 1& 2 of the CPC –

Temporary injunction may be granted by the Court in the following cases-

1. Where 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;
2. Where the defendants threaten, or intends to remove or dispose of his property with a
view to defrauding his creditors; or
3. Where the defendants threaten to dispossess the plaintiff or otherwise cause injury to
the plaintiff in relation to any property in dispute in the suit; or
4. Where the defendant is about to commit a breach of contract, or other injury of any
kind;
5. Where the court is of the opinion that the interest of justice so requires.13

13
Code of Civil Procedure, 1908 (Act No. V of 1908)
 Perpetual Injunction

According to Section 53 of the Specific Relief Act,14 a perpetual injunction can only be
granted by the decree made at the hearing and upon the merits of the suit; the defendant is
hereby perpetually enjoined from assertion of a right, or from the commission of an act
which would be contrary to the rights of the plaintiff.

Application of the principles of perpetual injunction

The principles governing the grant of perpetual injunction are applicable in respect of
passing of orders of temporary injunction and if in a suit a decree of perpetual injunction
cannot be granted, no temporary injunction should ordinarily be granted under this Order in
that suit. Thus, where a building contractor whose services had been terminated is not
entitled to a decree of specific performance of his contract of employment as it is one based
on personal skill, no temporary injunction can be issued in such a case. In view of the
provision of S. 56(d) of the Specific Relief Act,15 no injunction can be issued when it will
have the effect of interfering with the public duties of any department of the Government. An
applicant will not be granted temporary injunction if he has no personal interest in the matter
as required by S. 56(k) of the Specific Relief Act.16 However, the power of the court to grant
temporary injunction is not limited to cases where perpetual injunction can be granted. On
the other hand, the court will not issue temporary injunction merely because ultimately a
decree for perpetual injunction can be granted as for issue of temporary injunction there is
the further question of irreparable loss and balance of convenience.

Perpetual Injunction when granted

According to S. 54 of the Specific Relief Act, subject to the other provisions contained in,
or referred to by this chapter, a perpetual injunction may be granted to prevent the breach of
obligation existing in favour of the applicant, whether expressly or by implication.
When such obligation arises from contract the court shall be guided by the rules and
provisions contained in the chapter II of this Act.
i) Contracts which may specifically be enforced; and
ii) Contracts which cannot specifically be enforced.

When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of,
property, the court may grant a perpetual injunction in the following cases: -
a) Where the defendant is trustee of the property for the plaintiff.
b) Where the exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
c) Where the invasion is such that pecuniary compensation would not afford adequate relief;

14
Specific Relief Act, 1877 (Act No. I of 1877)
15
Ibid
16
Ibid
Mandatory Injunction

According to S. 55 of the Specific Relief Act,17 when, to prevent the breach of an obligation,
it is necessary to compel the performance of certain acts which the court is capable of
enforcing, the court may in its discretion grant an injunction to prevent the breach complained
of, and also to compel the performance of the requisite act.

17
Ibid
Scope for applying for an Injunction
Who may apply?
A plaintiff or a defendant may make an application for grant of an injunction.18
An application for an injunction can be made before or after Court proceedings have begun.
The Court can grant an injunction before the start of Court proceedings where the matter is
urgent or if it necessary in the interests of justice (for example if there is a real risk that funds
will be dissipated or evidence will be destroyed).

An injunction made before a case goes to trial is known as an "interlocutory" or "interim"

injunction. It can be expressed to remain in force for a particular period of time. Otherwise, it
remains in force until the matter comes to trial or the Court makes any further order. When the
case comes to trial, the Court will decide whether or not to make a "final" injunction.19

Against whom injunction may be issued

An injunction may be issued only against a party and not against a stranger or a third party. 20
In an appropriate case, Injunction may be issued against a person against the jurisdiction of
court.21 cannot be issued against a judicial officer.

18
Sivakami v. Nareayana, AIR 1939 Mad. 495
19
https://www.ashfords.co.uk/news-and-media/general/guide-to-injunctions
20
LD Meston School Society v. Kashinath, AIR 1961 All. 558
21
A. Milton & Co. v. Ojha Automobile, AIR 1931 Cal. 279
Grant of Injunction

Grant of injunction on terms

The court has power to impose reasonable terms as a condition when granting injunction. Thus,
it may call upon the plaintiff to undertake that he will abide by any order which the court may
make as to damages. If the plaintiff is a foreign firm and do not cam; on business in this country,
the court may reasonably put on terms.

Against whom injunction can be granted

An injunction can be issued only against party to the suit and not against a stranger or against
a court. In a proper case an injunction may be issued even against a person outside the
jurisdiction of the court. No injunction will ordinarily be issued against government officer’s
bona fide exercising rights or alleged rights in the course of their duty, or against public bodies
under similar circumstances.

Against whom an order of injunction is binding

Ordinarily, an order of injunction binds the parties to the suit. It is also binding on the agent or
servant of the defendant. Persons who were not party to the suit nor were named in the
injunction order cannot be proceeded against for violation of the order of injunction. But a
person who is aware of an order of injunction is bound to obey even though he was not a party
to the suit when it affects the result of the earlier order.
Principle of Granting Injunction

The power to grant a temporary injunction is at the discretion of the court. This discretion.
However, should be exercised reasonably, judiciously and on sound legal principles. Injunction
should not be lightly granted as it adversely affects the other side. The grant of injunction is in
the nature of equitable relief, and the court has undoubtedly power to impose such terms and
conditions as it thinks fit.

The Court needs to follow certain guidelines while considering an application for grant of
temporary injunction, some of which are briefly stated hereunder:

• The applicant seeking relief of temporary injunction shall have to establish a prima
facie case in his favor. For this purpose, the Court will not examine the merits of the
case rather only the basic facts on which it is established that the applicant has a prima
facie case to contest. Thereafter the applicant also has to establish that the allegations/
averments made in the application on which the temporary injunction is sought are
plausible.22
• The court will also examine the conduct of the applicant and such conduct needs to be
examined even at the stage where the application for setting aside an order under Order
XXXIX Rule 4 of the Code of Civil Procedure, 1908 is filed.
• The court has to examine the balance of convenience i.e. the balance of comparative
loss caused to the applicant and the respondent in the case of not passing the order.
• The court will first of all will examine what is the extent of loss that would be caused
to the applicant if the order is not passed and also whether it is reparable by monetary
compensation i.e. by payment of cost. Then it will examine the loss suffered by
respondent if the order is passed and thereupon it has to see which loss will be greater
and irreparable. The party who would suffer greater loss would be said to be having
balance of convenience in his favor and accordingly, the court will pass or refuse to
pass the order.

The court while granting or refusing to grant injunction should exercise sound judicial
discretion to find the amount of substantial mischief or injury which is likely to be caused to
the parties, if the injunction is refused, and compare it with that which is likely to be caused to
the other side if the injunction is granted. If on weighing competing possibilities or probabilities
of likelihood of injury and if the court considers that, pending the suit, the subject matter should
be maintained in status quo, an injunction would be issued. Thus, the court has to exercise its
sound judicial discretion in granting or refusing the relief of ad interim injunction pending the
suit.

At the stage of deciding the application for temporary injunction, the Court is not required to
go into the merits of the case in detail. Generally, before granting the injunction, the court must
be satisfied about the following aspects:23

• One who seeks equity must come with clean hands.

• One who seeks equity must do equity.
• Whenever there is right there is remedy.

22
Bangladesh Karate Association v. Bangladesh Judo Federation, 6 BLC(AD) 104
23
http//indiankanoon.org/doc/1097558 RAMAN V GOWDAPPA (1988)16
Pro-habitation for Granting Injunction

Situations in which temporary injunction can be granted

An order of temporary injunction under this Order can be granted where

• The property in dispute is in danger of being wasted, damaged, alienated or

wrongfully sold in execution of a decree.24

• The defendant threatens or intends to remove the property to defraud his creditors.25

• The defendant is about to commit a breach of contract or other injury of any kind
or where the court is of the opinion that the interest of justice so requires.26

Property in dispute

The property in respect of which an order of injunction can be passed must be the property
which is directly in dispute in the suit and no other property, nor where the property in dispute
is indirectly affected. In order to obtain an order of injunction relating to an immovable
property, it must be distinctively specified so that it can be clearly identified. To obtain
injunction the applicant must have subsisting interest in the property in dispute. Where the
defendant is in possession of the suit property claiming title, he can be allowed to change the
nature and character of the property if it does not diminish the value of the property and he can
make construction on the property at his own risk and he cannot be restrained. One cannot get
an injunction to restrain a man who is alleged to be a debtor from parting with his property.27

Injunction in specific performance suit

Contract of sale does not create any title to the vendee and hence a transferee under a sale deed
cannot be restrained from enjoying possession of the property at the instance of a person
claiming to have a previous agreement of sale in his favour. Defendant in a suit for specific
performance may be restrained from transferring the suit property and making construction
thereon by a third party during the pendency of the suit. However, it has been held that in a suit
for specific performance an order of injunction restraining alienation is unnecessary as s.52 of
the Transfer of Property Act is an adequate safeguard.28

Wrongful sale of property- in execution of decree

An injunction may issue to restrain a party when the property in suit is in danger of being
wrongfully sold in execution of a decree. Thus, no injunction can issue restraining execution
of a decree of eviction as in cannot be said that the property is in danger of being wrongfully
sold in execution of the decree.” Where a part)- obtains a decree in execution of which the

24
R. 1(a)
25
R. 1(b)
26
R. 2(1)
27
Sanu Miah v. Bangladesh, 1MLR (AD) 354
28
MD. Elias v. Suraiya Rahman, 1981 BLD 147
property was being sold, the judgment-debtor cannot get an injunction in a suit filed by him for
declaration that the decree was not binding on him as the decree-holder has a right to execute
the decree until the decree is set aside.” But where A obtains a decree against B and attaches
or otherwise proceeds against a property belonging to C and C thereafter files a suit for
declaration of his right thereto and prays for temporary injunction, an injunction may issue as
this is a case of wrongful sale of the property in execution of a decree. A decree which prima
facie appears to be illegal or void can be construed as causing injury and the court can issue
injunction restraining its execution. In granting injunction restraining sale in execution, the
court should exercise its discretion cautiously and wisely and see that the machinery of the
court is not used for fraudulent purpose. A court is not debarred from passing the order of
injunction restraining a party from executing a decree merely because the decree is of a court
of superior grade.29

Removal of property to defraud creditors

An injunction can be granted to restrain a threatened disposal of movable or immovable

property in fraud of creditors. It can be granted even in a suit for money where the court is
satisfied that the defendant threatens or intends to remove or dispose of his property which is
wholly outside the scope of the suit. The plaintiff, of course, will have to prove by definite
evidence the threat or intention to remove or dispose of the property to defraud the creditors.30

Elective offices

The court should always be cautious and slow in interfering with the functioning of elective
institutions and should be watchful not to allow abuse of the process of the court by persons
who want to nullify the result of an election with the aid of an interim order of the court.31

Breach of contract

Pending a suit, the court can issue an injunction restraining the commission of any act which
will involve a breach of the contract. But no injunction can issue when the breach of contract
has already been committed. In order to obtain the injunction order, the applicant must satisfy
the court that he has a completed contract under which he has acquired a right. An injunction
cannot be granted where the contract is not enforceable or when it is illegal. It is an important
qualification that a party is not entitled to an order of injunction restraining breach of a contract
when he is not going to suffer an irreparable loss, or in other words, is not going to suffer a loss
which cannot be compensated in monetary terms. Explanation to S.12 of the Specific Relief
Act, 1908, proclaims that unless the contrary is proved, the court shall presume that the breach
of contract to transfer immovable property cannot be adequately relieved by compensation in
money.32

Where parties have agreed that a suit relating to certain matter should be brought in a particular
court within the country, an injunction may issue to restrain filing the suit in any other court.

29
Ram Sadan v. Mathura Mohan, AIR 1925 Cal 233
30
Kaliyan Singh v. Mt. Shanno, Air 1959 Cal 715
31
Mahamed Meera v. Duraisami, AIR 1926 Mad. 1147
32
Specific Relief Act, 1877 (Act No. I of 1877)
Tender and auction

In a suit by the highest bidder for declaration that acceptance of the tender of the bidder quoting
lesser amount was illegal and for permanent injunction, the lower court passed an order for
maintenance of status quo which was treated to be an order of injunction and the Appellate
Division held that the highest bidder had no actionable right to be entitled to an order of
injunction.33

33
Hossain Ahmed v. HDR & Brothers, 32 DLR (AD) 223
Exception of the General Rule

Under Specific Relief Act,1908 there are some exception of the general rule, those are as
follows-

Employer and employee

In matters of employment where the rule of master and servant is applicable the master has the
general right to terminate the services of his employee unless the latter can show that the
contract contained a term under which the master gave up his right. Even though the applicant
may have an arguable case, the employer having the inherent right to dispense with the services
of the employee no injunction can issue. The relationship being essentially a contractual one,
the remedy of the employee is by way of a suit for damages in case of wrongful termination.
As such no injunction can be issued forcing the employer to keep the employee in service.
There is, however, an exception to the rule where there is a negative covenant within the
meaning of S.57 of the Specific Relief Act, 1908 in which case the court can grant temporary
injunction in an appropriate case.

Suspension from service is not a punishment but is incidental to disciplinary proceedings which
is discretionary with the departmental authority and no pre-hearing is necessary and no
mandatory or temporary injunction restraining the employer from enforcing the order of
suspension can be granted. When a disciplinary proceeding has been initiated legally or
illegally, the plaintiff may face the proceeding raising objection there; initiation of the
proceeding cannot by itself be a ground for passing an order of injunction.34

Suit between partners

In normal circumstances and in the absence of any other complicating factors, a mere assertion
by a partner to exercise his rights under the deed of partnership or even the enjoyment of his
right as partner cannot be looked upon as a threatened injury necessitating temporary
injunction. But when the defendant partners persisted in conducting themselves so wantonly as
to render it impossible for the partnership business to be carried on in proper manner and the
action on their part is injurious to business, injunction restraining them from interfering with
management and conduct of partnership cannot be refused to the plaintiff partner simply
because he has not prayed for dissolution of partnership. To stop a running business by
injunction a strong case is required to be made.35

Bank transactions

No prohibitory order can be passed by a court to interfere with normal banking transactions
and with the contract obligation of the bank where the only dispute is as to the performance of
the contract and the dispute can be resolved by a suit for damages. When money is deposited
with a bank, its withdrawal is governed by the terms of the contract and the bank is bound to
comply with the conditions of the contract and no injunction can issue preventing operation of
the bank account.36

34
Malik & Haq v. Shamsul Islam, 13 DLR (SC) 228
35
Suresh Kumar v. Amrit Kumar, AIR 1982 Del 131
36
Ziauddin Ahmed v. AB Bank, 53 DLR (AD) 107
Injunction When Refused & Procedure of Injunction

Statutory bar against issuance of injunction

According to S.56 of Specific Relief Act, 1908, an injunction cannot be granted37

• To stay a judicial proceeding pending at the institution of the suit in which the
injunction is sought, unless such restraint is necessary to prevent a multiplicity of
proceedings;
• To stay proceedings in a Court not subordinate to that from which the injunction is
sought;
• To restraint persons from applying to any legislative body;
• To interfere with the public duties of any department of the Government, or with
the sovereign acts of Foreign Government;
• To stay proceedings in any criminal matter;
• To prevent the breach of a contract the performance of which would not be specifically
enforced;
• To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it
will be a nuisance;
• To prevent a continuing breach in which the applicant has acquiesced;
• When equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust;
• When the conduct of the applicant on his agents has been such as to disentitle him to
the assistance of the Court;
• Where the applicant has no personal interest in the matter.

Where a statute prohibits entertainment of a suit, application or other legal proceeding for an
order of injunction, no temporary injunction can be issued.

Successive applications

If an application for temporary injunction has been rejected, another application for injunction
on the same grounds will not be entertained, though the principle of res judicata is not
applicable in respect of applications for injunction, as it amounts to abuse of the process of the
court. But where the application for injunction has been dismissed for default, there is no legal
hurdle in the way of renewing the application. However, if the fresh application for injunction
is made on the facts and circumstances which are different from those which existed earlier
and relied on, the subsequent application may be considered by the court in the light of the
changed circumstances.

Restitution

Apart from punishing a party for violation of the order of injunction, the court can pass order
for restoration of the status quo ante. A sale held in execution of a decree in violation of an
order injunction restraining the execution of decree may be set aside under inherent power.
When the defendant has, in violation of the order of injunction, dispossessed the plaintiff from

37
Specific Relief Act, 1877 (Act No. I of 1877)
the suit property during the pendency of the suit, the court has the authority and duty to restore
possession to the plaintiff by evicting the defendant in exercise of inherent power.

Appeal and revision

An appeal lies from an order granting or refusing temporary injunction. Appeal will lie against
an order refusing temporary injunction without issuing notice under order-3 of CPC a revision
against such order is not maintainable.

No appeal shall lie when the court grants temporary injunction in exercise of power under s.151
of CPC and in such case the aggrieved party may file a revision.

Where a revision is filed bona fide when the impugned order is appealable, the revisional
application is treated as a memorandum of miscellaneous appeal. But where the appeal lies
before the District Judge against an order granting or refusing temporary injunction.38

38
Behary Lal v. Sheo Lal, 3N.L.R. 114
Recommendation

According to CPC in case of procedure, the court shall in all cases, before granting an
injunction, direct notice of the application for the same to be given to the opposite party and be
satisfied that notice has been duly served, or could not be served on account of refusal by the
opposite party of receive otherwise.

Court shall not, without serving reasonable notice to the government pleader and giving him
or any pleader authorized by him in that behalf an opportunity of being heard, pass ex party
any order of ad interim or temporary injunction under any of the aforesaid rules of this order
at the instance of a private party against the government or any statutory public authority.

Above the discussion, it is clear that there has major discrimination between government and
general public. Because, in case of general public giving notice is not mandatory. But in case
of government there must be giving notice. Here in emergency case the party may be deprived
even destroyed and here clearly law is not equal for everyone. So, that provision must be
amendment for betterment of people.

The procedure of injunction petition just like original case. So here a large time is west by that
process and original case is deprived. For betterment of legal procedure here some information
is very necessary.
Conclusion

An injunction is an equitable remedy and as such attracts the application of the maxim that he
who seeks equity must do equity. Granting of injunction is entirely in the discretion of the
Court, though the discretion is to be sound and reasonably guided by Judicial Principles. This
discretion, however, should be exercised reasonably, judiciously and on sound legal principles.
Injunction should not be lightly granted as it adversely affects the other side. The grant of
injunction is in the nature of equitable relief, and the court has undoubtedly power to impose
such terms and conditions as it thinks fit. Such conditions, however, must be reasonable so as
not to make it impossible for the party to comply with the same and thereby virtually denying
the relief which party would otherwise be ordinarily entitled to. The general rule is that grant
of an injunction is a matter of discretion of the court and it cannot be claimed as of right.
However, the discretion has to be exercised in a judicious manner and in accordance with the
provisions relating to the grant of injunction contained in the Specific Relief Act. It is well
settled that no interim injunction would be issued if final relief cannot be granted. When
plaintiff has no personal interest in the matter, injunction cannot be granted.