The Law Relating To Injunctions ( Part – I )
The Law Relating To Injunctions
( Part – I )
My endeavour has been to state general principles accurately, and to explain them lucidly by the aid of selected decisions which are of authority and well in point. The present work is strictly confined to the subject expressed in the title; namely, the law relating to injunctions.
The granting of perpetual Injunctions is regulated by the Specific Relief Act, while temporary or, as they are sometimes called, interlocutory Injunctions, which are simply intended to preserve the status quo pending the decision, and which may be granted at any period of a suit, are treated as of the nature of procedure and are therefore regulated by the Code. One purpose of the enforcement of the laws is to maintain peace and order in society. The disputes relating to property should be settled in a civilized manner by having recourse to law and not by taking the law in own hands by members of society. It is well-settled that a decision by a Criminal Court does not bind the Civil Court while a decision by the Civil Court binds the Criminal Court. In Bhinka & Ors. Vs. Charan Singh , AIR 1959 SC 960, this Court held that the Magistrate does not purport to decide a party’s title or right to possession of the land but expressly reserves that question to be decided in due course of law.
The Object Of The Interlocutory Injunction:
In Gujarat Bottling Co. Ltd. vs. Coca Cola Company and Others, 1995(5) SCC 545, the Hon‟ble Supreme Court, inter alia, observed as under:- “The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to 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.”
What Does Discretion Mean?
Discretion is best exercised when it is in conformity with the spirit of law with a view to subserve and not impede or defeat the ends of substantial justice. Its exercise is permissible where in doubtful cases an impartial mind hesitates. Discretion is exercisable within well-known confines, which exclude its exercise ex gratia. The guiding principles as to the exercise of discretionary power, summarised by Maxwell, are in point –” ‘According to his discretion’ means it is said, according to the rules of reason and justice, not private opinion (Rook’s Case, 5 Rep. 100a; Keighleys case, 10 Rep. 140b; Eastwick v. City of London, Style, 42, (43), per Willes J., Lee v. Bude and Torrington Junction Rly. Co., (1871) LR 6 CP 576, according to law and not humour, it is to be not arbitrary, vague, and fanciful, but legal and regular (per Lord Mansfield R. v. Wilkes, (1770) 4 Burr 2527; to be exercised not capriciously, but on judicial grounds and for substantial reasons (per Jessel, M. R., Re, Taylor, (1877), 4 Ch. D. 157 (160); and per Lord Blackburn, Dohetry v. Allman, (1878) 3 A. C. 709 (728). And it must be exercised within the limits to which an honest man competent to the discharge of his office ought to confine himself (per Lord Kenyon, Wilson v. Restall, (1792) 4 T. R. 753 (757);. that is within the limits and for the objects intended by the legislature”. (Maxwell, 9th Ed. 129-133).’(Union Of India (Uoi) vs Bakhshi Amrik Singh: AIR 1963 P H 104) It will thus be seen that though the granting or withholding of injunctive relief is within the discretion of the Court to whom an application has been made, but this : power is not unlimited and cannot be equated with the whimsical will of the Court depending upon the temperament or mood of the presiding officer. It is based on sound judgment guided by law. The Courts are not given , a handle to misapply law or to twist facts in seeming exercise of the discretionary power. In Shiv Kumar v. MCD, the Apex Court observed thus: It has been pointed out repeatedly 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 favor of the plaintiff only if it is proved of 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. The purpose of temporary injunction is, thus, to maintain the status quo.
The Principle Governing Grant Of AD Interim Injunction:
Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down.There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721. In Damodar Valley Corporation vs Haripada Das And Ors. (AIR 1978 Cal 489, 82 CWN 1093, 1979 (39) FLR 180) held that The principle governing grant of ad interim injunction appears to be as follows :– (i) It is not necessary for grant of ad interim injunction on a balance of convenience that the plaintiff should succeed in establishing a prima facie case or a probability that he would be successful at the trial of the action. (ii) It is also no part of court’s function at that stage of the litigation to resolve conflicts on evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult question of law which call for detailed argument and mature consideration which is reserved for the trial. All that is necessary at that stage on the evidence on affidavits, is that the court should be satisfied that the claim is not frivolous or vexatious, in other words there is a serious question to be tried. (iii) On such satisfaction, the court will consider whether the plaintiff, if he succeeds, would be adequately compensated by an award of damages for the loss if the defendant continued to do what was sought to be injuncted. If damages recoverable in law is an adequate remedy and the defendant is in a financial position to pay them, no interlocutory order should be normally granted, however strong the plaintiff’s claim appears to be at that stage. (iv) If damages are not an adequate remedy to the plaintiff in event of his success at the trial the court will consider if the defendant would be adequately compensated if he succeeds in his case, by reason of the plaintiff’s undertaking for damages for the loss caused by reason of the injunction. If such damages are adequate remedy and the plaintiff is in a financial position to pay them, an interlocutory injunction should not be refused. In Deoraj vs. State of Maharashtra & Ors. AIR 2004 SC 1975, this Court considered a case where the courts below had refused the grant of interim relief. While dealing with the appeal, the Court observed that ordinarily in exercise of its jurisdiction under Art.136 of the Constitution, this Court does not interfere with the orders of interim nature passed by the High Court. However, this rule of discretion followed in practice is by way of just self-imposed restriction. An irreparable injury which forcibly tilts the balance in favour of the applicant, may persuade the Court even to grant an interim relief though it may amount to granting the final relief itself. The Court held as under:- “The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice.”
When Can Temporary Injunction Be Granted?
A temporary Injunction may be granted, if in any suit it is proved by affidavit or otherwise (a)
that any property 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 (h) that the defendant threatens, or is about to remove or dispose of his property with intent to defraud his creditors. In such cases the Court may by order grant a temporary Injunction to restrain such act, or give such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, or refuse such Injunction or other oi’der.* Further, in any suit for restraining the defendant from committing a breach of contract or other injury, whether compensation be claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary Injunction to restrain the de- fendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. The Court may by order grant such Injunction on such terms as to the duration of the Injunction, keeping an account, giving security, or other- wise, as the Court thinks fit or refuse the same. ( see The Law relating to injunctions British India by John George Woodroffe, m.a, b.c.l.,) (* KalyanhhaiDipchandv.Ghan- Pitam Mai, I. L. R., 10 AIL, 506, asham Lai Jadunathji, I. L. R., 512 (I88S). 5 Bora., “29, 31 (1880) and cases ^ Shaikh Moheeooddeen v. Shaikh , A hmed ff ossein, sn pra, 385 ; Gossain 2 Yumin-ud-Dovjlah v. Ahmed Monny Puree v. Gour Pershad AH Khun, I. L. R., 21 CaL, 501 Sinfjh, supra at p. 149 ; Kirpa (1891) ; Shaikh Moheeooddeen v. Dayal v. Eayii Kishori, I. L. R., 10 Sheikh Ahmed Hossein,U W. R., AIL, 80 (1SS7) ; Kanuhi Ram v. 384 (1870) ; Gossain Money Puree v. Biddya Ram, I. L. R., 1 AIL, 549, Gour Pershad Sitifjh, I. L. R., 11 551, note (1S78). CaL, 146 (1884) ; cf. Ram Chund v. * Civ. Pr. Code, s. 492.). In V. Sabitha vs Apsrtc, Hyderabad: 1999 (6) ALD 429, it was held that It is well settled that ihc party seeking temporary injunction has to satisfy the triple requirements of prima facie case, balance of convenience and irreparable injury. Prima facie case means the plaintiff must show the existence of a legal right in him to continue in possession.
While considering an application for injunction, it is well-settled, the courts would pass an order thereupon having regard to: (i) Prima facie (ii)Balance of convenience (iii) Irreparable injury. A finding on ‘prima facie case’ would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist( Vishal vs Kataria decided on 27 January, 2010; Gujarat High Court). The Supreme Court in Shanti Kumar Panda v. Shakuntala Devi , where the court held thus: ‘At the stage of passing an interlocutory order such as on an application for the grant of ad interim injunction under Rule 1 or 2 of Order 39 of the CPC, the competent Court shall have to form its opinion on the availability of a prima facie case, the balance of convenience and the irreparable injury __ the three pillars on which rests the foundation of any order of injunction.’ In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, the Hon’ble Supreme Court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below : (i) Extent of damages being an adequate remedy; (ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ; (iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible; (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.” In Gujarat Bottling Co. Ltd. vs. Coca Cola Company and Others, 1995(5) SCC 545, wherein it was held that it is a settled principle of law that in a suit where there is a no permanent injunction sought for, in the final analysis, ordinarily a temporary injunction cannot be granted. Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; The Hon’ble Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.
Prima facie case:
The expression “prima facie” means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded. [see Black’s Law Dictionary]”. The Supreme Court in Marin Burn Ltd. v. R.N. Banerjee 1958-I L.L.J. 247 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 as to whether that was the only conclusion which could be arrived at on that evidence.’ In Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad (1995(5) SCC 545,) wherein it was held that “Prima facie case” means that the Court should be satisfied that there is a serious question to be tried at the hearing, and there is a probability of Plaintiff obtaining the relief at the conclusion of the trial on the basis of the material placed before the Court. “Prima facie case” is a substantial question raised bona fide which needs investigation and a decision on merits. The Court, at the initial stage, cannot insist upon a full proof case warranting an eventual decree. If a fair question is raised for determination, it should be taken that a prima facie case is established. The real thing to be seen is that the Plaintiff‟s claim is not frivolous or vexatious.’’
Balance of convenience:
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. In Bikash Chandra Deb vs Vijaya Minerals Pvt. Ltd.: 2005 (1) CHN 582, the Hon’ble Calcutta High Court observed that issue of balance of convenience, it is to be noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be an one-sided affair. In Antaryami Dalabehera vs Bishnu Charan Dalabehera: 2002 I OLR 531, as this point, it was held that balance of convenience, which means, comparative mischief for inconvenience to the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and compared with that of the opposite party, if it is granted. In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: ‘Balance of convenience’ means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff if temporary injunction is refused would be balanced and compared with that to the defendant if it is grants ed If the scale of inconvenience leans to the side of the plaintiff, then alone interlocutory injunction should be granted.” In Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341 it was held that ‘ Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant 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.’
In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: ‘Irreparable injury’ means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:- “The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.” No injunction could be granted under O. 39, rr. 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 the material on record that the plaintiffs have a prima facie case.( United Commercial Bank vs Bank Of India And Others: 1981 AIR 1426, 1981 SCR (3) 300). The Supreme Court in Hindustan Petroleum Corporation v. Shrinarayan and Ors., (2002) 5 SCC 760, has held with regard to grant of interlocutory injunction which can also be applied with regard to grant of permanent injunction. It is specifically clear from the above principle that with regard to grant of permanent injunction the Court has to see that whether plaintiff has a legal right asserted by him in his favour or by violation of his right he would suffer irreparable injury. In the case of H. BEVIS AND COMPANY v. RAM BEHARI, AI R 1951 Allahabad 8, referred to Woodroffe’s Law relating to Injunction and quoted the following observations:- “The power to issue an ex parte injunction no doubt exists but the greatest care should be employed in its exercise, There may be instances where the injury is so great that an exparte injunction is necessary; but the Court should if possible always require notice, however, short, to be given. (2) Such an injunction on the application of one party, and without previously giving to the person to be affected by it the opportunity of contesting the propriety of its issuing, is a deviation from the ordinary course of justice, which nothing, – but the existence of some imminent danger to property if it be not so granted – can justify. A case, therefore of irremediable mischief impending must be made out.” As regards relief of temporary injunction, in the case of DELHI MUNICIPALITY v. SURESH CHANDRA, , while dealing with the question of grant of interim or temporary injunction, Their Lordships of the Supreme Court observed: “that it also seems that the attention of the learned Judge was not directed towards Section 41(h) of the Specific Relief Act, 1963 which lays down that an injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases of breach of trust.” Their Lordships further dealing with the matter, observed that: “however, we abstain from deciding the question whether the suit is barred or not on this ground. All we need say is that this consideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction,” In the case in  16 CLJ 555 ; 15 IC 614 (Jital Singh v. Raja Kamaleswari Prosad, ), it was held that “an order of temporary injunction under Order 39, Rule 2 of the C. P. C. can be sought only in aid of the prospective order for a perpetual injunction. If, therefore, in the event of the plaintiff’s success he cannot obtain a decree for perpetual injunction it is not competent for him to ask for temporary injunction, during the pendency of the suit. In granting a temporary injunction, the court acts in aid of the legal right, so that the property may be preserved in status quo “. In the case reported in AIR 1933 Lah 203 (N. W. Rly. Administration v. N. W. Rly. Union, Lahore) it has been held, “the issue of a temporary injunction is governed by the same principles as the grant of a permanent injunction at the trial of a case. In Hari Chand Anand and Co. v. Singer Manufacturing Co., AIR 1933 Lph 1046, a Division Bench of the Lahore High Court had reached the conclusion, that the balance of convenience was on the side of the defendant, and that the temporary injunction should not be granted, and, further, that the Interests of plaintiff could be safeguarded by putting the defendant on conditions. In that view of the matter, the revision was allowed. Where a lower Court loses sight of the first principles governing the issuance of temporary injunctions, it acts with material irregularity in the exercise of its jurisdiction (vide Meyyappa Chettiar v. V. Gopalakrishna Ayyar, AIR 1939 Mad 750).
( To be continued in Part-II)