Law of Injunctions

Theory and
Application
Justice ® Dr. Munir Ahmad Mughal
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INTRODUCTION

An Injunction (‫ )ﺣﮑﻢ‬is a commandment

(‫ )اﻣﺮ‬or prohibition (‫)ﻧﮩﯽ‬. Thus plural of
an injunction is injunctions (‫)اﺣﮑﺎﻣﺎت‬.
The plural of a commandment is
Commandments (‫ )اواﻣﺮ‬and the plural of
a prohibition is Prohibitions (‫)ﻧﻮاﮨﯽ‬.

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HISTORICAL ASPECT OF THE
SUBJECT OF INJUNCTIONS

The laws in Pakistan have the legacy of

the British legal system which has its
original sources in Roman Law.
The Chancellor under the English law
based his decision on honesty, equity and
good conscience. The Court of Chancery
was a regular tribunal. It dated from the
decree of King Edward III but the order
of the King was generally in nature
requiring exercise of the prerogative of
Grace. It administered equitable relief
and extraordinary remedies.

Common Law had its own limitations

which on occasions caused great
inconvenience and feeling of lack of
appropriate remedies which needed
injunctive authority and hence a need

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was felt for writs to supply the
deficiencies of the Common law courts.
A writ or process was in vogue during
the days of Roman Empire and the use of
injunctive process had been in use in
England almost from the days of the
foundation of the Common Law.
The writs were issued in the name of the
King of England attached to the
jurisdictions of the Kings bench
Division. Such principles of writs are
duly incorporated under Article 184 of
the Constitution of Islamic Republic of
Pakistan, 1973 (the Supreme Court) and
under Article 199 (the High Court) were
invested with the specific jurisdiction to
issue directions similar to the various
kinds of writs. Earlier it was called writ
jurisdiction and now it is called as
constitutional jurisdiction. Earlier these
were called common law writs and now

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they are called Constitutional directions.
The change of nomenclature from Latin
to English is in no way different in
substance and legal effect. In practice
even today a Constitutional petition is
called a writ petition.
The wording of the Pakistan Constitution
are as under:
“
184. Original Jurisdiction of
Supreme Court
(1) The Supreme Court shall, to the
exclusion of every other Court, have
original jurisdiction in any dispute
between any two or more
Governments.
Explanation.—In this clause,
"Governments" means the Federal
Government and the Provincial
Governments.

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(2) In the exercise of the jurisdiction
conferred on it by clause (1), the
Supreme Court shall pronounce
declaratory judgements only.
(3) Without prejudice to the
provisions of Article 199, the Supreme
Court shall, if it considers that a question
of public importance with reference to
the enforcement of any of the
Fundamental Rights conferred by
Chapter 1 of Part II is involved, have the
power to make an order of the nature
mentioned in the said Article.”

199. Jurisdiction of High Court

(1) Subject to the Constitution, a
High Court may, if it is satisfied that
no other adequate remedy is provided
by law,—
(a) on the application of any

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aggrieved party, make an order—
(i) directing a person performing,
within the territorial
jurisdiction of the Court,
functions in connection with
the affairs of the Federation, a
Province or a local authority,
to refrain from doing anything
he is not permitted by law to
do, or to do anything he is
required by law to do; or
(ii) declaring that any act done
or proceeding taken within the
territorial jurisdiction of the
Court by a person performing
functions in connection with
the affairs of the Federation, a
Province or a local authority
has been done or taken
without lawful authority and is
of no legal effect; or

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(b) on the application of any
person, make an order—
(i) directing that a person in
custody within the territorial
jurisdiction of the Court be
brought before it so that the
Court may satisfy itself that he
is not being held in custody
without lawful authority or in
an unlawful manner; or
(ii) requiring a person within
the territorial jurisdiction of
the Court holding or
purporting to hold a public
office to show under what
authority of law he claims to
hold that office ; or
(c) on the application of any
aggrieved person, make an order
giving such directions to any
person or authority, including any
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 Government exercising any power
or performing any function in, or
in relation to, any territory within
the jurisdiction of that Court as
may be appropriate for the
enforcement of any of the
Fundamental Rights conferred by
Chapter 1 of Part II.
(2) Subject to the Constitution, the
right to move a High Court for the
enforcement of any of the
Fundamental Rights conferred by
Chapter 1 of Part II shall not be
abridged.
(3) An order shall not be made under
clause (1) on application made by or in
relation to a person who is a member of
the Armed Forces of Pakistan, or who is
for the time being subject to any law
relating to any of those Forces, in respect
of his terms and conditions of service, in

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respect of any matter arising out of his
service, or in respect of any action taken
in relation to him as a member of the
Armed Forces of Pakistan or as a person
subject to such law.
(4) Where—
(a) an application is made to a High
Court for an order under paragraph
(a) or paragraph (c) of clause (1), and
(b) the making of an interim order
would have the effect of prejudicing
or interfering with the carrying out of
a public work or of otherwise being
harmful to public interest 1[or State
property] or of impeding the
assessment or collection of public
revenues,
the Court shall not make an-interim
order unless the prescribed law
officer has been given notice of the
1 Inserted by P.O. 14 of 1985

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 application and he or any person
authorised by him in that behalf has
had an opportunity of being heard
and the Court, for reasons to be
recorded in writing, is satisfied that
the interim order —
(i) would not have such affect as
aforesaid; or
(ii) would have the effect of
suspending an order or proceeding
which on the face of the record is
without jurisdiction.
2
"(4A) An interim order made by a
High Court on an application made to
it to question the validity or legal
effect of any order made, proceeding
taken or act done by any authority or
2 Subs. by the Constitution (18TH Amendment) Act, 2010 (X of 2010) -
Before Substitution:
2[(4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order
made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been
made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, 2[State
property or] assessment or collection of public revenues shall cease to have effect on the expiration of a period of 3[six months]
following the day on which it is made, 4[Provided that the matter shall be finally decided by the High Court within six months
from the date on which the interim order is made].]
5[xxx]
2: Clause (4A) ins. by the Constitution (Fourth Amdt.) Act, 1975 (71 of 1975), s. 8, (w.e.f. the 21st November, 1975).
3: Subs. by P. O. No. 14 of 1985, Art. 2 and Sch., for "sixty days".
4: Subs. by the Legal Framework Order, 2002 (C. E's. O. No. 24 of 2002), Art. 3 and Sch., for certain words.
5: Clause (4B) omitted ibid., which was previously amended by P. O. No. 14 of 1985, Art. 2 and Sch.,

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 person, which has been made, taken
or done or purports to have been
made, taken or done under any law
which is specified in Part I of the
First Schedule or relates to, or is
connected with, State property or
assessment or collection of public
revenues shall cease to have effect on
the expiration of a period of six
months following the day on which it
is made:
Provided that the matter shall be
finally decided by the High Court
within six months from the date on
which the interim order is made. ",
3
[(4B) Every case in which, on an
application under clause (1), the
High Court had made an interim
3 Added by P.O. No. 14 of 1985 and omitted by Legal Framework Order, 2002 and according to Article 2(a) of the Constitution
(Eighteenth Amendment) Act, 2010 (X of 2010), the Legal Framework Order, 2002 (Chief Executive's Order No. 24 of 2002),
the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002) and the Legal Framework (Second
Amendment) Order, 2002 (Chief Executive's Order No. 32 of 2002), are hereby declared to have been made without lawful
authority and of no legal effect and, therefore, shall stand repealed.
Note: After declaring the LFO 2002 as of made without lawful authority and of no legal effect and stand
repealed, what was the effect of this amendment on this article is the question of “Interpretation of Statute” –
By this reason, I reproduced the Section 4-B of Article 199 – Please validate the Section 4-B of Article 199 from
the concern authorities. Thanks.

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 order shall be disposed of by the
High Court on merits within six
months from the day on which it is
made, unless the High Court is
prevented from doing so for sufficient
cause to be recorded.]
[Comments]
Whether Section 4B is alive or not is
a question of Interpretation of
Statute. I have reproduced this
Section, you are requested to please
verify about its status from the
concerned authorities. thanks
(5) In this Article, unless the context
otherwise requires,—
"person" includes any body politic or
corporate, any authority of or under
the control of the Federal
Government or of a Provincial
Government, and any Court or
tribunal, other than the Supreme
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Court, a High Court or a Court or
tribunal established under a law
relating to the Armed Forces of
Pakistan ; and
"prescribed Law Officer" means—
(a) in relation to an application
affecting the Federal Government
or an authority of or under the
control of the Federal
Government, the Attorney-
General, and
(b) in any other case, the
Advocate-General for the
Province in which the application
is made.
[Case Law Study]
High Court cannot interfere in:-
1. Controversial question of fact
[2006-SCMR-12];
2. Reappraisal of Evidence [2005-

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 clc-1745];
High Court cannot substitute its
own finding in:-
1. Findings of Tribunals [2005-ylr-
1795]
High Court cannot take Role of:-
1. Legislature or Executive [2005-
ylr-359, 2005-ylr-1417];
High Court exercise its jurisdiction
only to see:-
1. Jurisdictional defect [2005-clc-
1745];
2. Violation of Statute [2005-clc-
1745];
3. Law Settled by Superior Courts
[2005-clc-1745];

KINDS OF INJUNCTIONS

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According to Black’s Law Dictionary
injunctions are of following kinds,
namely,
 Final Injunction;
 Interlocutory Injunction;
 Mandatory Injunction;
 Permanent Injunction;
 Preliminary Injunction;
 Preventive Injunction;
 Provisional injunction;
 Special injunction; and
 Temporary Injunction.

PAKISTANI STATUTES ON
INJUNCTIONS

 The Code of Civil Procedure, 1908;

 The Specific Relief Act, 1882;
 The Constitution of Islamic Republic
of Pakistan 1973;

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  The Arbitration Act, 1940;
 The Partnership Act, 1932;
 The Copyright Act, 1957;
 The Guardian and Wards Act, 1890;
 The Easement Act, 1882;
 The Patent and Designs Act, 1911;
 The Trade Marks Act;
 The Code of Criminal Procedure,
1898.

RELEVANT PROVISIONS OF THE

CODE OF CIVIL PROCEDURE,
1908

Order XXXIX rules 1 to 5

Section 151
Section 94.

RELEVANT PROVISIONS OF THE

Specific Relief Act, 1877
S.54
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S.55
S.56

WHAT IS THE NATURE OF AN

INJUNCTION AND ON WHAT
PRINCIPLES IT IS BASED?

An injunction is an equitable relief and

as such the granting of such relief is
governed by well known equitable
principles: “Certain principles in equity”
says Justice Story, are well established,
and dominate in the administration of
justice in that field with as much
certainty as do principles upon the law
side, so to speak, of the Court. But mere
precedents are of no avail except to
illustrate which principles have been
applied. The text writers disagree, in
some respects, in the manner of stating
this, but are in harmony in this: While

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new principles are not to be added to
those long established for the
government of equitable remedies, the
rules, not the precedents, are to control.
There is no vitality in precedents; there is
in rules. They are susceptible of
expansion along every line necessary to
reach new conditions. The ingenuity of
man in devising new forms of wrong
cannot outstrip such development. 4

Conduct of applicant must be fair, honest

and free from any taint of fraud and
illegality. As the relief is of purely
equitable character says Mr. Spelling the
plaintiff must come with equitable
conditions generally imposed upon
parties asking equitable relief.5

4
Story, Equity Jurisprudence, 4th ed. P . 63.
5
Blackmore v. Glamorganshire, 1 Myl. & K. 154; Williams v. Roberts, 8 Hare 315, 327; Ward v. Higgs
(1864) 12 WR 1074.

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EFFECT OF DELAY IN
INSTITUTING JUDICIAL
PROCEEDINGS

To delay in instituting judicial

proceedings, although for a lesser period
than that prescribed by the Statutes of
Limitations, maybe ,and generally will
be regarded as an acquiescence, and this
may be and generally will be a bar to
equitable remedy.6

THREE ESSENTIAL
INGREDIENTS FOR THE GRANT
OF AN INJUNCTION

1. Existence of a prima facie case in

favour of the plaintiff.

6
Story, Equity Jurisprudence, 4th ed. p. 65.

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 2. Balance of Convenience in
granting injunction in favour of the
Plaintiff.
3. Irreparable loss to the Plaintiff in
case the injunction is not granted.

DISTINCTION BETWEEN AN
INJUNCTION AND STAY ORDER

The nature and incidents of an order of

stay as understood in our judicial system
is that it is addressed to and binds
subordinate court or tribunal whereas an
injunction is essentially directed against
and enjoins a party to the proceeding
from doing or from omitting to do
certain acts. The former binds the
subordinate court or tribunal from
proceeding further in a pending
proceeding or from executing an order
passed by itself. This essential distinction

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has assumed great importance in relation
to the operation of th e two types of
order. The judicial consensus holds that
an order of stay takes effect immediately
on being passed even if it is not brought
to the notice of the subordinate court or
tribunal whereas an injunction order
becomes operative upon being served on
the party against which it is directed.7

IS A DECREEGRANTING OR
REFUSING A PERPETUAL
INJUNCTION APPEALABLE?

Perpetual injunction is always granted in

the shape of a decree.
A decree means the formal expression of
an adjudication which so far as regards
the Court expressing it, conclusively
determines the rights of the parties with
7
PLD 1978 Karachi 152; NLR 1978 Civil 769.

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regards to all or any of the matters in
controversy in the suit and may be either
preliminary or final.8
Save as otherwise provided in the Civil
Procedure Code the general rule is that
an appeal shall lie from every decree
passed by the Court exercising original
jurisdiction to the Court authorized to
hear appeals from the decisions of such
Court.9
So a decree granting or refusing a
perpetual injunction is always
appealable.

IS AN ADJUDICATION GRANTING
OR REFUSING A TEMPORARY
INJUNCTION UNDER ORDER 39
CPC A DECREE?

8
Section 2 of the Code of Civil Procedure, 1908.
9
Section 96 of the Code of Civil Procedure, 1908.

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The adjudication of a Court my be either
decree or order. An adjudication granting
or refusing a temporary injunction under
order XXXIX is not a decree. Such
adjudication falls under order.
Some orders are appealable. The others
are not appealable. The general rule is
that no appeal lies from an order as is not
enumerated in Order 43, rule 1. These
orders are appealable. An appeal shall lie
from an order under rule 1, rule 2, rule 4
or only rule 10 of Order XXXIX of the
CPC.10
An appeal lies from an order granting or
refusing an in injunction under Order 39
rule 1 of the CPC.11

An order refusing to discharge an

injunction issued under Order 39 rule 2
is appealable.12
10
Order 43 rule 1 ( r ) of Code of Civil Procedure, 1908.
11
Lachman Naram v. Ram Charain, 35 A. 425; Harilal v.Preyag Ram 18CLJ 39; 17 CWN 996; 19 Ind.
Cas. 553; Rahivian v. Ganaphathi 23 M. 513.

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But Where order purports to be passed
under section 151 and it does not appear
that the Court considered at all the
provisions of Order 39 rule 2 and appeal
from such order is incompetent.13

Discretion given by law to grant or

refuse injunction is not to be exercised
arbitrarily or whimsically it is to be
exercised judicially. Where facts in the
case appear to have been correctly
appreciated and are such as demand due
consideration, the exercise if discretion is
judicial an appeal should not be
entertained.14
Where a court granting or refusing to
grant an ad interim injunction has
exercised its discretion judicially, the
12
NWR Admn v. NWR Union, AIR 1833 Lahore 203 Zabadajan v. Muhammad 15 A. 8.
13
New Delhi Theaters v. Kallash Chand, AIR 1933 Lahore 73; Hari Chand v. Durga Devi AIR 1934
Lahore 79; Monohar v. Jainarayan AIR 1920 Lahore 436; 55 Indian Cases 403.
14
TrimbarkRao v. Sampat Rao AIR 1933 Nagpur 153.

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mere fact that the judge of Appellate
Court might come to a different
conclusion is not sufficient ground for
interference.15

REVISION

Section 115 of the Code of Civil

Procedure, 1908 confers Revisional
jurisdiction on the High Court.
The High Court may call for th e record
of any case which has been decided by
any Court subordinate to such High
Court and I which no appeal lies, thereto
and if such subordinate court appears,-
(a) to have failed to exercise a
jurisdiction vested in it by law,
or
(b) to have failed to exercise a
jurisdiction so vested, or
15
Daily Gazette v. Karachi Municipality ALR 1930 Sindh 287; jaipal Kuma v. Inder 26 Appeal Cases 238;
Gobinda v. Vijiara maraju AIR 1929 Madras 803; Umeah v. Nibaran 19CLJ 710.

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 (c) to have acted in the exercise of
its jurisdiction illegally or with
material irregularity,

the High Court may make such order in

the case as it thinks fit.16

16
Section 115 CPC is on Revision. The difference between revision and appeal is that an appeal is
continuation of the proceedings. Where an appeal is provided, revision is not competent.

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