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
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