Temporary Injunction

Order XXXIX, Code of Civil Procedure, 1908

Definition of  Injunction is a judicial process by which one who has invaded or is
threatening to invade the rights, legal or equitable, of another, is
injunction ordered to refrain from doing, or to do any particular act or thing.
 Injunction
1. Temporary
2. Perpetual

Types of 1) Preventive
Injunction 2) Mandatory

1. Ad-Interim
2. Interim
  Perpetual/ Permanent Injunction: Perpetual injunction restrains a
party forever from doing the specified act and can be granted by
decree only on merits at the conclusion of trial after hearing both the
parties to the suit. Section 53 & 54 of the Specific Relief Act, 1877 talk
about perpetual injunction.
 Mandatory injunction: It compels, command or order any person to
do any particular act. Mandatory injunction is governed by section
Types of 55 of Specific Relief Act.

Injunction  Ad-interim injunction: Ad Interim injunction is granted without

finally deciding an application for injunction and operates till the
disposal of the application.
 Interim injunction: Interim injunction is granted while finally
deciding main application and operates till the disposal of the suit.
Ad-interim is more interim than interim injunction
Temporary injunction can be given as ad interim or interim injunction
  Temporary Injunction restrains a party temporarily from doing any
particular act and can be granted until the final disposal of the suit
or, until further order of the court.
 As per Section 53 of the Specific Relief Act 1877, Temporary
Temporary injunction are such as to continue until a specified time or, until
Injunction the further order of the court. They can be granted at any period
of a suit.
 It is regulated by the provisions of order 39 of the Code of Civil
procedure. It can be granted during the pendency of the suit as
interim or, ad-interim order.
  Order XXXIX, rules 1 & 2 state situations when an order for
temporary injunction may be granted. These are:
1) The property in dispute is in danger of being
When wasted,damaged,alienated or, wrongfully sold in execution of a
decree. Rule 1(a) Applicable both in case of movable and
Temporary immovable property
injunction can 2) The defendant threatens or intends to remove the property to
defraud his creditors. Rule 1(b) Applicable both in case of
be granted movable and immovable property.
3) The defendant is about to commit a breach of contract or other
injury of any kind. Rule 2 Applicable in case of Contract
  Pending a suit,the court can issue an injunction restraining the
commission of any act which will involve a breach of contract. But no
injunction can be issued when the breach is already committed.
 The applicant must satisfy the court that he has completed his
performance under a contract and acquired a right against the opposite
party. The contract cannit be an illegal contract. The applicant has to
prove that there is no other efficacious remedy or, the monetary
compensation is not enough and he is going to suffer irreparable loss.
Interpretation  See section 12 of Specific Relief Act: When specific performance of
of rule 2 contract is enforceable.
 A contract of personal service not being specifically enforceable,no
injunction can be issued to restrain the employer from terminating the
service of the employee. The relationship being essentially a contractual
one, the remedy of the employee is by way of a suit for damages in case
of wrongful termination.-VD Tripathi vs Dwivedi, AIR 1976.
 As such no injunction can be issued forcing the employer to keep the
employee in service. –Malik & Haq v Shamsul Islam, 13 DLR (SC) 228
  Where the Court is of the opinion that the interest of justice so
requires. Section 94(c)
Continued...  Courts have inherent power under their equity jurisdiction to grant
an injunction in any case for the interest of justice. Section 151 is
applicable here.
 A) Suit for specific relief
B) Suit for part performance
Instances of C) Ejmali property: A co-sharer in exclusive possession of a portion
granting of ejmali property can obtain an order to restrain other co-
sharer from dispossessing him. (Moharram Ali and others Vs
temporary Mohammad Madhu Mia and others, 41DLR (AD) 92)

injunction D) Suit for simple declaration

E) Affairs of companies
F) Copyrights etc
  In the case of Uttara Bank Vs Macneill and Kilburn, 33 DLR (AD)
298, the Appellate Division laid down a guideline for granting
temporary injunction which is as follows:
“ Injunction is granted when the court is satisfied that,
1) The applicant has a prima facie case to go to trial
Ground of
2) The protection is necessary from irreparable injury before his
Temporary legal rights can be established
injunction 3) The mischief or inconvenience likely to arise from withholding
injunction will be greater than which is likely to arise from
granting it.”
So, three most important factors that need to be considered by the
Court are Prima facie and arguable case, irreparable loss,balance of
convenience and inconvenience.
  “Prima facie case does not mean that the plaintiff should have a
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.”- Prakash Singh Vs State of Haryana, 2002,(4) Civil LJ
71 (P.H.)
Prima facie  “If the plaintiff claims title on the basis of purchase, he must file
case sale deed or if he claims title by inheritance he must file
khatian,rent receipts to show that the propert belonged to his
predecessor-in-interest. If he fails,then it may be said that the
plaintiff failed to make prima facie case. 33DLR (AD) 298.
When the plaintiff can show that he has a prima facie case only then
it can be said that he has a possibility of getting relief in the suit and
as such his right may be protected till final hearing.
  The applicant must further satisfy the court that he will suffer
irreparable injury if the injunction as prayed is not granted and
there is no other remedy open to him by which he can protect
himself from the consequence of apprehended injury.
 Irreparable loss means that the injury must be material one, which
Irreparable cannot be adequately compensated by damages.
 “A party, in order to get temporary injunction must claim,inter
injury alia, a legal right,and allege an injury which is not ordinarily
reparable by monetary compensation.” 29 DLR (SC) 82
Even if there is a prima facie case, no temporary injunction should
be issued in favour of a party if it is found that for the damages or
injury which may be caused to him, the same may be compensated
by money.
  The balance of convenience must be in favour of the applicant. In
other words the court must be satisfied that the compensation,
mischief or inconvenience which is likely to be caused to the
applicant by withholding the injunction will be greater than that
which is likely to be caused to the opposite party by granting it. 33
DLR (AD) 298.
 If refusal of injunction causes more inconvenience to the party
seeking injunction, injunction should be granted. On the other hand,
Balance of if granting injunction will cause more inconvenience to the other
Convenience party,then injunction should not be granted.
 “The plaintiff who was supplier of goods in Government Hospitals,
filed a suit for declaration that cancellation of renewal of the P’s
registration by the defendant was illegal. The plaintiff made some
other persons as defendants who submitted tenders for supply of
hospital goods. The plaintiff filed an application for issuing
temporary injunction restraining the defendants from accepting
tenders of the other defendants. The lower court issued the
injunction. In the appeal, the High Court Division observed that by
granting injunction in favour of the plaintiff,the court cannot put
the other intending suppliers into great inconvenience for no fault
of them. 25 DLR 301.
  Whether a third party will be injured if Injunction is granted
 Whether he is in the possession of the property
Other grounds  Whether he comes to the court with clean hands

to consider  Whether he did inordinate delay in applying

 Whether it is necessary for protecting a legal right of the plaintiff
 Whether the prayer is for only harassing the opponent
No order of ad
interim or
temporary
injunction  See rule 5A of Order 39

without
hearing the
opposite party
Plaintiff’s  The plaintiff shall at first file a miscellaneous case under rule 754 of
remedies Civil Rules & Orders, volume-1, reporting the disobedience by the
defendant. Then the court granting an injunction may under Order
when the 39,rule 2(3), order the property of the defendant to be attached,
and may also order such person to be detained in the civil prison
defendant for a term not exceeding six months, unless released by the Court
in the meantime.
disobeys
 1) Temporary injunction cannot be granted without serving notice
to the opposite party. Ad Interim injunction can be granted
without serving notice.
2) In case of temporary injunction, there arises no possibility of
injury during the time of serving notice. In case of ad interim
Difference injunction there arises possibility of injury during the time of
serving notice.
between 3) Temporary injunction arises out of the subject matter of the
Temporary original suit. Ad interim injunction arises out of the application
for temporary injunction.
and Ad-interim 4) In temporary injunction both parties are to be heard. In ad
Injunction interim injunction it is passed ex parte
5) Duration of the temporary injunction is until the further order of
the court or until a specified time. Duration of ad interim
injunction is until the temporary injunction is granted.
  Applicability : 1) If the property is subject matter of the suit or has
Rule 6: Power been attached before judgement in the suit.
 The rule is not confined to sale of perishable property and also
to order permits sale of any property for any other just and sufficient
interim sale ground’- Satendra Prakash vs State Bank of Indore,AIR 1992.
 Relevant cases
 The rule extends to every case where as between the plaintiff and
defendant there is something that ought to be done for the
security of the property which is the subject matter of the suit. The
Rule 7: court may pass similar order about other property as to which any
question might arise in the suit.-Bazlur Rahman Vs Asma
Detention, Begum,12 BLT (AD) 202

preservation,in  The court may make an order for inspection of a house to

determine the alleged damage to it or to determine its age.-
spection etc of Amulya vs Annada, 37 CWN 143

the subject  The court may order a commissioner to dig up property such as
ornaments alleged to be buried in land.- Totaram Vs Dattu, AIR
matter of suit 1943 Bom 143.
 Unlike order 26 thus rule connotes only visual perception and not
hearing of witnesses. Where the question to be decided is whether
certain structures are old or new,the proper procedure is to issue
commission under this rule and not under Order 26.
 Rule 8,9,10 : see bare act