Cardinal Principles for grant of Temporary Injunction. A Succinct Study

By Y. Srinivasa Rao, M.A (English)., B.Ed., LL.M., Research Scholar in Law of Torts ., Principal Senior Civil Judge.

Introductory:-

This is the discretionary process of preventive and remedial justice, whereby a person is required to refrain from doing a specified meditated wrong, not amounting to a crime. It is either (1interlocutory i.e. provisional or temporary, until the coming in of the defendant’s answer or until the hearing of the cause; or (2perpetual i.e. forming part of a decree made at a hearing upon the merits, whereby the defendant is perpetually inhibited from the assertion of a right or perpetually restrained from the commission of an act contrary to equity and good conscience. Generally, petition is a supplication made by an inferior to a superior, having jurisdiction to grant redress. The term “petition” means a written statement of material facts, requesting the court to grant the relief or remedy based on those facts. It is a peculiar mode of seeking redress recognised by law, P. Philip v. Director of Enforcement, (1976) 2 SCC 174, and also see. 1976 SCC (Cri) 241. Petition also means a petition calling in question an election, according to Section 2(g), Disputed Elections (Prime Minister and Speaker) Act, 1977. The main object of granting interim relief of temporary injunction is the preservation of property in dispute till legal rights and conflicting claims of the parties are adjudicated before the Court of law. Order XXXIX of the Civil Procedure Code is the relevant provisions of law.

Plaintiff:- In a civil suit, plaintiff who commences an action against another, who is called defendant. The word plaintiff also includes (i) any person from or through whom a plaintiff derives his right to sue; (ii) any person whose estate is represented by the plaintiff as executor, administrator or other representative, See. Section 2(i), Limitation Act, 1963.

Defendant:- Defendant includes — any person from or through whom a defendant derives his liability to be sued; any person whose estate is represented by the defendant as executor, administrator or other representative, [Section 2(e), Limitation Act, 1963 (India)]. 2. The person sued in an action or indicated for a misdemeanour.

Interim Order :-

Interim Order is one made in the meantime and until something is done. An interim order cannot be regarded as a precedent. It is well settled that an interim order is always passed by a court on a prima facie appraisal of the facts and circumstances of a particular case, Bharat Coking Coal Ltd. v. Chandrama Hard Coke Mfg. Co., (2006) 4 CHN 468. 

Status quo

The existing state of things at any given date. Status quo ante bellum, the state of things before the war.  “According to the ordinary legal connotation, the term ‘status quo’ implies the existing state of things at any given point of time.”, Satyabrata Biswas v. Kalyan Kumar Kisku, (1994) 2 SCC 266.  

Temporary Injunction:-

Temporary Injunction is granted during the pendency of the proceeding so that while granting final relief the court is not faced with a situation that the relief becomes infructuous or that during the pendency of the proceeding an unfair advantage is not taken by the party in default or against whom temporary injunction is sought. But power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted, as was held in Cotton Corpn. of India Ltd.v. United Industrial Bank Ltd., (1983) 4 SCC 625. As was held in Bank of India v. Ahmadbhoy, ILR 8 Bom.35 injunction It may be either temporary or  perpetual. Under section 94 (c) of the Code of Civil Procedure, 1908 (C.P.C), Temporary injunction can be granted , only if a case satisfying the requirements of Order XXXIX, Rules 1 and 2 is made out. In addition to that, the court may grant a temporary injunction in exercise of its inherent powers under Section 151 of C.P.C. See. BINOD MOHAN PRASAD, Mulla The Code of Civil Procedure 247(Lexis Nexis Butterworths Wadhwa, Nagpur, 17th Edition. 2007

Prima facie case :-

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, Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79: 1958 SCR 514: (1958) 1 LLJ 247. What is “prima facie” case is succinctly discussed by the Apex Court in Martin Burn Ltd. v. R.N Banerjee , AIR 1958 SC 79. In United Commercial Bank v. Batik of India, , the Supreme Court observed: (SCC pp. 787-88, paras 52-53) “No injunction could be granted under Order 39, Rules 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom? In view of the legal principles applicable, it is difficult for us to say on tile material on record that the plaintiffs have a prima facie case. 

Balance of convenience : Balance of convenience is another essential principle for grant of temporary injunction and it must be in favour of granting the temporary injunction as was held in Dalpat Kumar v. Prahlad Singh, The Apex Court held that 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. About ‘Balance of Convenience’ See also. Satyam Infoway Ltd. v. Siffynet Solution …, (2004) 6 SCC 145.

Irreparable Injury

“Irreparable injury” 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, Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719. It also held in this case that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. A s was held in Gujarat Bottling Co. Ltd. v. Coca Cola Co., AIR 1995 SC 2375, these considerations will apply to the defendant to vacate the interim relief.

Mandatory interim injunction:-

When mandatory interim injunction   may be granted and the need to establish much more than a mere prima facie case and the principles to grant mandatory interim injunction are discussed by the Suprem Court of India iin Dorab Cawasji…,Tek Singh v. Shashi Verma, (2019) 16 SCC 678.

Ex-parte Injunction – Principles:-

Sometimes, the Court can grant ex-parte ad-interim injunction. In such cases, compliance of Or. 39 Rule 3 of CPC. s an essential factor. If temporary injunction application has been heard and is disposed of on merits, non-complainace of Or.39 Rule 3 CPC becomes insignificant. However, no ex-parte injunction against government, despite notice under section 80(1) of CPC is dispensed with.

The essential principles for grant of ex-parte injunction are discussed in Morgan Stanley Mutual Fund v. Kartick Das , (1994) 4 SCC page 225. The Apex Court held that as a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are-

(a) whether irreparable or serious mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case balance of convenience and irreparable loss would also be considered by the court.

Cardinal Principles for grant of temporary injunction:-

The cardinal Cardinal Principles for grant of temporary injunction were considered by the Supreme Court of India in Dalpat Kumar..Ambalal Sarabhai Enterprise Ltd. v. KS I …, (2020) 5 SCC 410.The plaintiff/petitioner must establish prima facie case. The scope of ‘prima facie’ is explained by the Apex Court in the case of Martin Burn Ltd. v. R.N Banerjee, 1958 SCR 514 and it was held that 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. 

a) So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. b) As to that, the governing principle is that the court should first consider whether, if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be en joined between the time of the application and the time of the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at that stage. If, on the other hand, damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether, on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he would be adequately compensated under the plaintiff’s undertaking as to damages for the loss he would have sustained by being prevented from doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an interlocutory injunction c) It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case.

Injunction is an equitable relief and so he who comes to equity must do equity. The person seeking relief of injunction must approach the court with ‘clean hands’.

Breach of Injunction orders 

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. The third condition also is that “the balance of convenience” must be in favour of granting injunction. 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 it 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. See. Dalpat Kumar And Another vs Prahlad Singh And Others, AIR 1993 SC 276.

Rule 2A of Order 39 of CPC speaks about the consequences of  disobedience or breach of injunction.

Order 39 Rule 2A of  Code of  Civil Procedure along with Sections 2 (b), 12 (1) and 12(3) of  the Contempt of  Courts Act, 1971, and Article 215 of  the Constitution of  India give this Court the power to punish a party who wilfully disobeys any judgment, decree and directions passed by this Court. The aforesaid provisions are reproduced herein below for ready reference:

“A. Order 39 Rule 1A

2A. Consequence of disobedience or breach of injunction —

(1) In the case of disobedience of  any injunction  granted or other order made under Rule 1 or  Rule 2 or breach of any of  the terms on which the injunction  iwas granted  or the order made, the Court granting the injunction or  making the order, or any Court to 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 execeding 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 or breach continues, the property attached may be sold and out of  the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.

B. Contempt of Courts Act

2(b). “Civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of  an undertaking given to a Court.

12. Punishment for contempt of Court—(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of Court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both. Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

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(3) Notwithstanding anything contained in this section, where a person is found guilty of  a civil contempt, the Court, if it considers that a fine will not meet the ends of  justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.

C. Constitution of  India

215. High Courts to be Courts of  record—Every High Court shall be a Court of record and shall have all the powers of  such a Court including the power to punish for contempt of itself.”

Two remedies to the defendant:-

Two remedies are available to a defendant against an order  of exparte injunction  — (i) an application under Order 39 Rule 4 of CPC for varying or vacating the order; (ii) an appeal under Order 43 Rule 1 (r) ; the two remedies are concurrent. The law is well-settled that petitioners cannot invoke the jurisdiction of High Court under Article 227 of the Constitution of India when they have two concurrent remedies. See. Shanita Holdings SDN Vs.  Shanita Hotel Trichy Pvt. Limited, (2009) 152 Comp Cas 116 .

Extension of injunction :-

Experience in Sub ordinate Courts shows that interim injunction granted under Order 39 Rules 1 or 2 of CPC is being extended from time to time ignoring the object of Order 39 Rule 3A of CPC, based on a formal petition or memo. In Shanita Holdings SDN Vs.  Shanita Hotel Trichy Pvt. Limited, (2009) 152 Comp Cas 116 . it was held that Order 39 Rule 3A of Civil Procedure Code specifies that an interim injunction application is to be disposed off within 30 days and adjourning the case from time to time to different dates beyond 30 days by the trial Court is not proper in the considered opinion of this Court.

Important case-law relating to principles for grant of temporary injunction;

  1. Exercise of power : Interim/Interlocutory orders/Injunction/Status quo are discussed in
    Zenit Mataplast (P) Ltd. v. State of Mah …, (2009) 10 SCC 388
  2. The cardinal principles for grant of temporary injunction were considered in Dalpat Kumar…,
    Ambalal Sarabhai Enterprise Ltd. v. KS I., (2020) 5 SCC 410
  3. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction as was held in …,
    Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719
  4. In Best Sellers Retail (India) (P) Ltd. v. …, (2012) 6 SCC 792 , it was held that the well-settled principles relating to temporary injunction have been kept in mind.
  5. At the stage of grant of temporary injunction, a strong prima facie case is to be established as was pointed out in Uniply Industries Ltd. v. Unicorn Plywoo …, (2001) 5 SCC 95.
  6. It was customary for the courts to  go into prima facie case in trademark cases for grant or or refusal of temporary injunction, S.M. Dyechem Ltd. v. Cadbury (India) Ltd …, (2000) 5 SCC 573 .
  7. Principles for grant of temporary injunction were discussed in in Printers (Mysore) (P) Ltd. v. …,
    Mahendra & Mahendra Paper Mills Ltd. v. …, (2002) 2 SCC 147 .
  8. In Mahadeo Savlaram Shelke v. Pune Municipa …, (1995) 3 SCC 33 , it was held that the purpose of temporary injunction  is, thus, to  maintain the status quo.
  9. Temporary Injunction in trade mark/intellectual property. See. Neon Laboratories Ltd. v. Medical Techno , (2016) 2 SCC 672 .
  10. Temporary injunction – Principles for granting or refusing were considered in
    Deshmukh and Co. (Publishers) (P) Ltd. v …, 2005 SCC OnLine Bom 566. See also. Mansharam Mirchumal Sangtant v. Dhule Na …, 1994 SCC OnLine Bom 15 See also. Ajay Mittal Industrial Premises Coop. So …, 2004 SCC OnLine Bom 578.
  11. Three basic principles, a court, while granting injunction  imust also take into consideration.
    Makers Development Services (P) Ltds’s case., (2012) 1 SCC 735 . In Raghuveer Agencies Pvt. Ltd. v. Santosh, 2017 SCC OnLine Bom 52 , it was held that the principles governing grant of temporary injunction  are now well settled.
  12. Grant of mandatory interim relief – Mohd. Mehtab Khan v. Khushnuma Ibrahim K …, (2013) 9 SCC 221. See also. Tek Singh v. Shashi Verma, (2019) 16 SCC 678 .
  13. When one cannot move the court to grant  relief by injunction  restraining the karta from alienating was considered in Sunil Kumar v. Ram Parkash, (1988) 2 SCC 77.
  14.   Temporary injunction is discretionary relief. Agnelo Filomeno Caetano Jose Menezes v. …, 2014 SCC OnLine Bom 396
  15. The court is not bound to grant an injunction  in every case. Gujarat Bottling Co. Ltd. v. Coca Cola.., (1995) 5 SCC 545
  16. While hearing an application for grant temporary injunction, the right of the Court to exercise its inherent power is discussed in Ram Prakash Agarwal v. Gopi Krishan, (2013) 11 SCC 296.
  17. Temporary injunction: The obtaining factual matrix has to be appreciated on the basis of the principles  that have been enunciated in Sumer Builders (P) Ltd. v. Narendra Gora …, (2016) 2 SCC 582. The grant of temporary injunction is a discretionary relief which discretion has to be exercised on well settled principles.See. Chairman, Sangli Salary Earners Co-Opera …, 2012 SCC OnLine Bom 1007.
  18. The Apex Court summarized principles of law regulating grant of injunction.,Those principles were considered in Shiva Velaydam v. Mumbai Agricultural Pr …, 2017 SCC OnLine Bom 3655.
  19. Or. 39 R. 3 : 39 R. 3- Grant of ex parte injunction – Discretion of court…, Shiv Kumar Chadha v. Municipal Corpn. of …, (1993) 3 SCC 161.
  20. Order 39 of CPC. However, the Courts also have inherent power to issue temporary injunctions in circumstances which are not covered under Order 39 of CPC as was held in Manohar Lal Chopra Vs. Seth Hari Lal, AIR 1962 SC 527.

Conclusion:-

Granting injunction is a discretionary relief and that the court may either grant or refuse to grant injunction.  It is an equitable relief and the party must approach with clear hands. Temporary injunction is granted during pendency of the proceedings of a civil suit. The Courts have inherent power to issue temporary injunctions in circumstances which are not covered under Order 39 of CPC. Temporary injunction can also be granted under Sections 94 (c) and 151 of CPC in appropriate cases to meet the ends of justice. An injunction may be perpetual (permanent) or temporary. A permanent injunction is final and conclusive of the facts in the context of which the injunction is granted. Section 36 to 42 of the Specific Relief Act,1963 speak about various kinds of injunctions such as permanent , prohibitory and mandatory injunctions. Out of the three cardinal principles of prima facie, balance of convenience and irreparable injury, the party who seeks injunction must establish ‘Prima facie’ and either balance of convenience or irreparable injury for grant of injunction, a fortiori, ‘prima facie’ case is sine qua non. In certain circumstances, the Court may grant ad-interim injunction in appropriate cases. Even if notice under section 80 (1) of CPC is dispensed with, no injunction can be granted against the Government without hearing. Requirement of assigning reasons for the grant of exparte ad interim injunction  is a mandatory one. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court.

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