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Sultan Zainal Abidin
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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-

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-
####### Department of Law
####### ASA University Bangladesh
####### 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
####### 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., 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)
####### 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, 1908 8 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. when they prevent, prohibit or restrain
someone from doing something; or (ii) Mandatory, i. 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)
####### 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
####### 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. 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. 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/doc/1097558 RAMAN V GOWDAPPA (1988)
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 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

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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, Facultyof 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 amextremely thankful
and indebtedto 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
facultymembers for their
help and support. I also thank
my parents for the unceasing
encouragement,
support and attention. I amalso
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 UniversityBangladesh
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'sLaws 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. Theresearch 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 studyis
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
Remedyprohibiting persons
from doing a specified act called a
restrictive injunction or commanding
them to undo some
wrong or injury called amandatory
injunction and maybe 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 areconsidered 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
preliminaryinjunctions 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
wherebya partyis 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
aparty 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
grantinginterim 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 therelief 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 exercisinghis
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 guiltyof
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 mayalso
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 bygranting 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 partyis not restrained as
prayed for. Thecourt
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
partyapplies 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
interfereunless 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 partyto 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 theyprevent,
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 partyon 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 pendencyof 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 Stateof 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
propertyin 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 maybe granted
by the Court in the following cases-
1. Where anyproperty 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
anyproperty 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 Codeof 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
buildingcontractor whose services had
been terminated is not
entitled to adecree of specific
performance of his contract of
employment as it is one based
on personal skill, no
temporaryinjunction 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
SpecificRelief 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
ultimatelya
decree for perpetual injunction can be
granted as for issue of
temporaryinjunction 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 maybe 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 maymake
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 byany
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 ordinarilybe issued against
government officer’s
bona fide exercising rights or alleged
rights in the course of theirduty, 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
bindingon 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. bypayment 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 begranted
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 indirectlyaffected. In order to obtain
an order of injunction relating to an
immovable
property, it must be
distinctivelyspecified 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 characterof 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
atransferee 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 propertyand
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
cautiouslyand wiselyand 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 merelybecause 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 restrainingthe commission
of any act which
will involve a breach of the contract.
But no injunction can issue when the
breach of contract
has alreadybeen 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 aparty 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 anyother 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

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