TEMPORARY

INJUNCTIONS (O.39)
Dr. Karan Jawanda
Temporary Injunctions (order 39)
◦ An injunction is an equitable remedy in the form of a court order that compels a party to do or refrain
from doing specific acts. It is a court order which restrains one of the parties to a suit in equity from
doing or permitting others who are under his control to do an act which is unjust to the other party.
Injunctions are granted for various purposes like preventing future violations of the law, such as trespass
to real property, infringement of a patent, dispossession from property or damage to a property. In suits it
is also used as a remedy to maintain status quo.
◦ The procedure for seeking temporary injunction has been provided under O. 39 of the Code of Civil
Procedure. However, an injunction being discretionary equitable relief cannot be granted when equally
efficacious relief is obtainable in any other usual mode or proceeding. Also being an equitable and
discretionary relief, the courts keep in mind questions of fairness and good faith. One manifestation of
this is that injunctions are subject to equitable defenses, such as laches and unclean hands.
Types of Injunction
◦ Perpetual or permanent Injunction: This is not temporary in nature and can be granted upon filing a
suit for perpetual injunction under the provisions of Specific Relief Act. A perpetual injunction is defined
by section 37 (2) of Specific Relief Act as “A perpetual injunction can only be granted by
the decree made at the hearing and upon the merits of the suit, the defendant is
thereby perpetually enjoined from the assertion of a right, or from the commission
of an act which would be contrary to the rights of the plaintiff”.
◦ Temporary Injunction: Temporary injunctions are orders enjoining a person to
do an act or refrain from doing an act which last for a particular period of time or
till the pendency of the suit. Sec 37 (1) of Specific Relief Act further defines the
temporary injunction as “Temporary injunctions are such as to continue until a
specified time, or until further order of the court and they may be granted at any
stage of a suit, and are regulated by the Code of Civil Procedure, 1908.”
Types of Injunction
◦ Prohibitory Injunction: An injunction is prohibitory when a party is refrained from doing a particular
act. Example: injunction stopping a sale, injunction prohibiting removal of some construction etc.
◦ Mandatory Injunction: An Injunction in which a party is mandated to do a certain act is known as a
mandatory injunction. Example: an order to restore the building to its original condition, to remove an
obstruction, to remove overhanging branches, destruction of copies produced by piracy of
copyright and of trademarks
Temporary injunction when granted
◦ As per order 39 rule 1and 2 a temporary injunction may be granted in the following cases:
1.For the protection of interest in the property
◦ This category will cover the following cases
◦ (a) That property in dispute is in danger of being wasted or alienated by any party to the suit or wrongfully sold in
execution of a decree; or
◦ (b) That the defendant threatens to remove or dispose of his property with a view to defraud his creditors; and
◦ (c) That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit.”
◦ The court may by the order grant an interlocutory injunction to restrain such act or make such order for the purpose of
staying and preventing the damage of wasting, alienation, sale or disposition of the property as the court thinks fit
until the disposal of the suit.
2.Injunction to restrain, repetition or continuance of breach
◦ (1) In any suit for restraining the defendant from committing a breach of contract or other injury, of any kind, whether
compensation is claimed in the suit or not, the plaintiff may at any time after the commencement the suit and either
after or before judgement, apply to the court for a temporary injunction to restrain the defendant from committing the
breach of contract or an injury complained of, or any breach of contract or injury arising out of same contract.
Conditions for grant of temporary
injunction
◦ The court will grant a temporary injunction if the following conditions are satisfied by the case:
1.Prima Facie case: The plaintiff must be able to establish a prima facie case in his favor. Prima facie case means on the face of it, the
case seems to be in the favor of the plaintiff /applicant.He is not required to establish the clear title but a substantial question that
requires to be investigated and that matter should be preserved in the same status as it is until the injunction is finally disposed of.
Prima facie case does not mean that the plaintiff should have a cent percent case which will in all probability succeed in trial. Prima
facie case means that the contentions which the plaintiff is raising, require consideration in merit and are not liable to be rejected
summarily
2.Irreparable Injury: An irreparable injury may be caused to the plaintiff if the injunction is refused and that there is no other remedy
open to the applicant by which he could protect himself from the feared injury.
3.Balance of convenience in favor of the applicant: The balance of convenience requires that the injunction should be granted and
compensation in money would not serve an adequate relief. To see balance of convenience, it is necessary to compare case of parties,
comparative mischief or inconvenience which is likely to sue from withholding the injunction will be grater than which is likely to
arrive from granting it.
◦ Other Factors: There are some other factors which must be considered by court while granting injunction. The relief of injunction
may be refused on the ground of delay, laches oracquiescence or whether the applicant 87 has not come with the clean hands or has
suppressed material facts, or where monetary compensation is adequate relief
Exparte Ad-interim Injunctions
◦ Ad-interim injunctions only reflects that court either passed order ex-parte or even if the defendant is
present, he was not heard fully for want of pleading etc.
◦ In Morgan Stanley Mutual Fund Vs. Kartick Das – (1994) 4 SCC 225, it was observed as follows:-
◦ • Where irreparable or extremely serious injury will be caused to the applicant, ex-parte order can be
passed;
◦ • The court shall examine the time when the plaintiff got notice of the act complained;
◦ • If the plaintiff has acquiesced to the conduct of the respondent then ex-parte temporary injunction shall
not be passed;
◦ • The applicant shall be acting in utmost good faith; and
◦ • Such an order shall be for a temporary period.
Disobedience of an Injunction
◦ Rule 2-A of Order 39 and Section 94(c) of the Civil Procedure Code provide for consequences
of disobedience of an injunction. Section 94(c) provides that, “In order to prevent the ends of
justice from being defeated the Court may if it is so prescribed grant a temporary injunction
and in case of disobedience commit the person guilty thereof to the civil prison and order
that his property is attached and sold.”
◦ Rule 2-A of Order 39 provides that,
◦ “(1) In case of disobedience of any injunction granted under Rule 1 and Rule 2 or breach of
any of the terms on which injunction was granted, the court granting the injunction or
making the order, or any court o which the suit or proceeding is transferred, may order the
property of the person guilty of such disobedience or breach to be attached and may also
order such person to be detained in the civil prison for a term not exceeding three months,
unless in the meantime the court directs his release.
◦ (2) No attachment made under this rule shall remain in force for more than one year, at the
end of which time if the disobedience continues, the property attached may be sold.”
Inherent Power to Grant Injunction
◦ The Courts have an inherent power under section 151 to grant injunction if the case is not covered under
the provisions of order 39.There was a conflict of Judicial opinion on the question whether the Court
could issue a temporary injunction U/s.151 of Civil Procedure Code when the case did not fall within the
term of Order XXXIX Rule 1 and 2 of Civil Procedure Code. However now that point is concluded by
the Hon'ble Apex Court in the case of 'Manmohanlal Vs. Seth Hiralal’ AIR1962 SC 527 by observing
that the Court has powers U/s.151 of Civil Procedure Code to issue an injunction in cases not falling
within Order XXXIX Rule 1 and 2; however that discretion should be exercised judiciously.
Cases on Temporary Injunctions
◦ In the case of Martin Burn Ltd. V. R.N Banarjee AIR 1958 SC 79 the SC held

◦ A prima facie case does not mean a case proved to the hilt but a case which can be said to be
◦ established if the evidence which is led in support of the same were believed. While determining
◦ whether a prima facie case had been made out the relevant consideration is whether on the
◦ evidence led it was possible to arrive at the conclusion in question and not whether that was the
◦ only conclusion which could be arrived at on that evidence. It may be that the Tribunal
◦ considering this question may itself have arrived at a different conclusion. It has, however, not to
◦ substitute its own judgment for the judgment in question. It has only got to consider whether the
◦ view taken is a possible view on the evidence on the record.
Cases on Temporary Injunctions
In American Cyanamid Co (No 1) v Ethicon Ltd 1975 AC 396 to establish whether an applicant has an
adequate case for the granting of an interlocutory injunction the House of Lords laid down that if damages
could compensate the defendant then injunction should be granted. The guidelines laid were:
◦ Whether the claimant had a strong or merely an arguable case.
◦ The adequacy of damages as a remedy.
◦ The balance of convenience.
◦ Whether the status quo should be maintained
In the case of Shiv Kumar v. MCD, (1993)3 SCC 161, it was held that a party is not entitled to an order of
injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such
discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that
unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to
the plaintiff during the pendency of the suit.
Cases on Temporary Injunctions
◦ The Hon’ble Apex Court through catena of judgments like landmark judgment in Gujarat Bottling Co. Ltd. Vs. Coca Cola
Co. AIR 1995 SC 2372, held that 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 favour. 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.
◦ 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 favour and accordingly, the
court will pass or refuse to pass the order.
◦ The court has the power also to ask the party to deposit security for compensation or to give an undertaking for the
payment of the compensation, if ordered.
Cases on Temporary Injunctions
◦ In Wander Ltd. v. Antox India P. Ltd. 1990 Supp SCC 727 in regard to grant of temporary injunction and
interference by appellate courts in regard to such discretionary order :

Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right
asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till
they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles
of administration of this form of interlocutory remedy which is both temporary and discretionary. The
object of the interlocutory injunction, it is stated is to protect the plaintiff against injury by violation of his
rights for which he could not adequately be compensated in damages recoverable in the action if the
uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against
the corresponding need of the defendant to be protected against injury resulting from his having been
prevented from exercising his own legal rights for which he could not be adequately compensated. The
court must weigh one need against another and determine where the balance of convenience lies.”
Cases on Temporary Injunctions
◦ In Seema Arshad Zaheer &; Ors. Vs, Municipal Corporation of Greater Mumbai & Ors. (2006) 5 Scale
263, the Hon’ble Supreme Court has indicated the salient features for grant of temporary injunction are
as under:
◦ The discretion of the court is exercised to grant a temporary injunction only when the following
requirements are made out by the plaintiff: “(i) existence of a prima facie case as pleaded, necessitating
protection of the plaintiffs rights by issue of a temporary injunction; (ii) when the need for protection of
the plaintiffs rights is compared with or weighed against the need for protection of the defendants rights
or likely infringement of the defendants rights, the balance of convenience tilting in favour of the
plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary
injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to
grant such relief will be exercised only when the plaintiffs conduct is free from blame and he approaches
the court with clean hands.”
Cases on Temporary Injunctions
In Dalpat Kumar &Anr. v. Prahlad Singh & Ors. (1992) 1 SCC 719 this Court held:
“Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy
that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other
remedy available to the party except one to grant injunction and he needs protection from the consequences of
apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical
possibility of repairing the injury, but means only that the injury must be a material one, namely, one that cannot be
adequately compensated by way of damages.”
In Kishoresinh Ratansinh Jadeja v. Maruti Corporation & Ors. (2009) 11 SCC 229 that while passing an order of
temporary injunction under Order 39 Rules 1 and 2 CPC, the Court is to consider (i) whether the plaintiff has a prima
facie case; (ii) whether balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff will suffer
irreparable loss and injury if an order of injunction was not passed.
However, in Best Sellers Retail India (P) Ltd. vs. Aditya Nirla Nuvo Ltd. (2012 ) 6 SCC 792, the Hon’ble Supreme Court
observed that prima facie case alone is not sufficient to grant injunction
and held that: “Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court
will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was
not irreparable.”