This article paper is an attempt to elucidate certain intricate provisions
relating to the law of injunctions, both temporary and permanent in India. In
layman's terms, injunctions are orders of courts by which a party to an action
is required to do or refrain from acting in a particular manner. In the former
case it is called a restrictive or prohibitory injunction and in the latter case
a mandatory injunction.
Through different case laws, the three essentials that must be shown to get an
injunctive order, namely the existence of a prima facie case in favour of the
plaintiff, the balance of convenience being in the grant of such injunction and
the plaintiff to suffer an irreparable loss in case the injunction is not
granted in his favour, are interpreted. It also discusses how in some cases
courts have used post decree interlocutory order can be as a preventive measure
to protect the rights of the parties and meet the ends of justice.
The objective of the interim order is to protect rights of the parties during
the pendency of litigation and are granted before commencement of proceedings,
not being a final resolution to the matter in dispute. Interim orders, as their
name suggests, can be granted at all stages of a proceeding, even after the
final judgmen being orders of freezing injunctions which are passed after the
final judgment for its enforcement[ Adrian Zuckerman, Zuckerman on Civil
Procedure- Principles of Practice, 3rd Ed (2013) Thomson Reuters (Legal)
Limited, Page 393.].
Injunction, as a remedy originated in the English courts of equity, thereby
making it an equitable remedy[ 456 U.S. 305, 311 (1982)]. An injunction is
basically a legal remedy, where the courts directs a party to do or refrain from
doing a specific act.[ 134 S.Ct. 2806, 2810-11 (2014)]
While employing the extraordinary remedy of injunction, the court directs the
conduct of a party, and it does so with the backing of its full coercive
powers.[ 556 U.S. 418, 428 (2009)] In India, Part III of the Specific Relief Act
of 1963 deals with the types of injunctions. As per Section 36, granting
preventive relief as injunction is the discretion of the court and such relief
can be either temporary or in perpetuity. The literal interpretation of this
section suggests that such injunctions are preventive i.e negative in nature, as
opposed to mandatory or affirmative injunctions.
Section 37 deals with the two types of injunctions based on their time of
validity. Temporary injunctions are valid for a fixed period of time i.e for a
specific duration or from the date of order till further order of the court.
Various provisions of the Code of Civil Procedure of 1908 regulate them, mainly
In the Agricultural Produce Market Committee Case[ AIR 1997 SC 2674], the
Hon'ble Apex Court has held that if a party seeking injunction has a concluded
right, only then a temporary relif can be granted and is capable of being
enforced by way of injunction. The primary purpose of temporary injunction, also
called interim or interlocutory injunctions is to preserve the status quo of the
corpus of the property in dispute until court has adjudicated and acertained the
respective rights and liabilities of the parties. Another reason behind granting
of temporary injunctions might be to deter the defendant who threatens the
plaintiff to dispossess the plaintiff or cause any injury to the plaintiff
concerning the subject-matter in dispute.
A perpetual injunction, however, can only be granted after the final disposition
of a case made by a decree made after the hearing of the case, based on the
merits of the suit. The defendant is thereby perpetually forbidded from the
assertion of a right, or from the commission of an act, contrary to the rights
of the plaintiff in temporary injunction as per Section 37.
Order XXXIX Rules 1 & 2, Civil Procedure Code of 1908 deal with various
circumstances where Courts can grant temporary injunction pending disposal of
the suit. One of such circumstances is causing injury by the defendant to the
plaintiff of any kind including injury in relation to property involved in the
suit. In order to overcome such injury when plaintiff files the suit, he may
simultaneously seek redress, by way of temporary injunction, for protection till
the suit is finally adjudicated upon. Such temporary injunction, which the
plaintiff seeks, may be of prohibitory character or of mandatory character.
In the case of M. Gurudas and Ors. Vs. Rasaranjan and Ors.
[ AIR 2006 SC
3275], Supreme Court of India has stated that while passing an application for
injunction, three principles, i.e. regard to prima facie, balance of convenience
and irreparable injury are to be considered. The courts practice their
while adjudicating the grant or refusal of an
injunction, circumventing the boundary drawn from Sections 37 to 42 of the
Specific Relief Act. The literal meaning of the Latin term prima facie is “on
the face of it
In the case of Martin Burn Ltd. V. R.N. Banerjee
1958 AIR 79, 1958 SCR
514 while explaining the meaning of a 'prima facie
' case, it was held by
the Supreme Court that the burden of proof to satisfy the court that he has a
prima facie case in his favour by leading evidence or otherwise lies on the
plaintiff. Therefore, though prima facie case is a must to be eligible to obtain
a temporary injunction, it is not sufficient.
Temporary injunction cannot be granted if the damage that will be caused
otherwise is not irreparable.[ (2012) 6 SCC 792] Irreparable injury
refers to such an injury which cannot be adequately remedied by way of
compensation or damages. By inadequate remedy, it is interpreted that the
damages or compensation that will ultimately be payable to the plaintiff if he
wins the case would not place him in the position in which he was before
injunction was refused.[ (1974) 40 Cut LT 336]
In the case of Anwar Elahi V. Vinod Misra And Anr
.[ 1995 IVAD Delhi
576], the court explained about the third principle of balance of convenience as
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 the case of American Cyanamid Co. v. Ethicon Ltd
.[ 1975 AC 396: (1975)
2 WLR 316], Lord Diplock opined that the main object of an interlocutory
injunction is to protect the plaintiff against any injury by violation of his
right for which he could not be adequately compensated in damages recoverable if
the decision of the court is in his favour at the end of the trial.
But the plaintiff's need for such protection must also be weighed against the
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 under the plaintiff's undertaking in damages if the
uncertainty were resolved in the defendant's favour at the trial. The court must
first weigh one need against the other and thereafter determine where the
balance of convenience lied.
Section 39 of the Specific Relief Act deals with mandatory injunctions. The two
important elements to be taken into consideration to determine the grant of
mandatory injunction are that it is necessary in order to prevent a breach of
the obligation and the requisite acts must be such a character that the court is
capable of enforcing it.
As aforementioned, law is well settled that prima-facie case, balance of
convenience and irreparable injury are the three golden principles to be
examined while dealing with a prayer of temporary injunction of prohibitory
character. Unlike prohibitory injunctions, mandatory involves affirmative
actions. For granting of temporary injunction of mandatory character certain
other requisites are necessary.
Certain situations emerge where the granting of an interim relief would be
equivalent to granting the final relief itself. And then there may be converse
cases where withholding of an interim relief would tantamount to dismissal of
main petition itself because by the time the main matter comes up for hearing,
there would be nothing left to be allowed as relief to the petitioner though all
the findings may be in his favour.
In such cases the availability of a very strong prima facie case, of a standard
much higher than just prima facie case, the consideration of balance of
convenience and irreparable injury forcefully tilting the balance of case
totally in favour of the applicant may persuade the Court to grant an interim
relief though it amounts to granting the final relief itself. Of course, such
would be rare and exceptional case.
The Court would grant such an interim relief only if it is completely 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 wouldn't be able to vindicate the cause of
justice. Obviously such cases would be very rare and also accompanied by
compelling circumstances, where the injury complained of is immediate and
pressing and would cause extreme hardship.
The conduct of the parties shall also have to be seen and the parties may be put
on such terms as that Court thinks prudent.[ 2004(1) OLR(SC) 632] So clarifying,
the Supreme Court set aside the negative order of the High Court and directed
for announcement of the result of election declaring the petitioner as the
elected Chairman of Board of Directors of a Co-operative Society, even though
the validity of such election was in issue in the pending proceeding.
In the case of Deoraj V. State of Maharastra,
[ (2004) 4 SCC 697] while
granting mandatory temporary relief the Supreme Court analysed the facts of the
case and found that there was only one nomination filed which was found to be in
order and had not been withdrawn.
Though the time given for filing nomination, scrutiny and withdrawal was over,
there was no contest. Nothing was done at the meeting of the Committee which was
to be convened only for the purpose of declaring the result. There was no
voting. Holding of a meeting was only for the purpose of performing the
formality of declaring the appellant as elected.
The provision as to quorum lost its significance and the election was for a
period of one year out of which a little less than half of the time had already
elapsed and in absence of interim relief being granted to him there was nothing
which would survive for being given to him by way of relief at the end of the
final hearing. This fully satisfied the court that a full proof case for the
grant of interim relief could be made out in favour of petitioner.
This is a glaring example and also a guide line for subordinate Courts showing
how Judge's conscience should manifest in a manner in preventing perpetuation of
injustice even when the whole matter is sub judice.In a case, a member of an
undivided family sold his undivided share in the family dwelling house to a
stranger. Purchaser and the vendor also allowed the vendee to take over
possession of a part of the said house which was earlier in his separate
possession by way of mutual convenience.
Sec. 44 of the Transfer of Property Act, 1882 did not permit such purchaser any
kind of possession of the dwelling house. He could, at the best, sue for
partition of the same. In that event any other member of the family could claim
pre-emptory right in the sold-share of the dwelling house if the
stranger-purchaser would have sued for partition as is envisaged in Sec. 4 of
the Partition Act.
In such premises, when a suit was filed by another member of the family against
the stranger-purchaser for eviction from the taken over portion of the dwelling
house, the Supreme Court granted mandatory temporary injunction Under Order
XXXIX Rules 1 & 2 of C.P.C. directing eviction of the stranger-purchaser from
the suit housepending disposal of the suit. Though this interim relief virtually
amounted to granting final relief sought for in the suit, Judge's conscience
persuaded for granting of such a relief[ AIR 1990 S.C. 867].
The purpose behind granting such relief, as has been said by the Supreme Court
in another case[ 1990(2) S.C.C. 117], is to preserve or restore the status-quo
of the last non-contested stage which preceded the pending controversy, if
justice demanded so. Such a view in reiterated in another case also [ Vol. 91
C.L.T. 319]. When a common passage is obstructed by the defendant and the
plaintiff sues for removal of such obstruction, Court generally passes mandatory
interim injunction against the defendant directing him for removal of the
obstruction pending final disposal of the suit, provided Court is prima facie
satisfied about existence of such a common passage.[ 2002(1) CJD-S.N. 18,
2002(2) CJD-NOC. 6]
When plaintiff has raised substantial construction of a structure and is then
resisted by the defendant from further proceeding with the construction work,
Court generally passes temporary injunction against the defendant not to so
resist the construction work, though by such order the plaintiff gets an
opportunity of completing the disputed structure before his right of making such
construction is finally decided in the suit. But while passing such interim
relief to the plaintiff Court generally takes an undertaking from him not to
claim equity for such construction if the result of the suit goes against him.
The same proposition also applies in a suit filed by the plaintiff against
construction being raised by the defendant[ Vol. 90 C.L.T. 294, 2002 (Supl) OLR
732, 2005(Supl) OLR 865]. Thus, from the forgoing narration of different cases
it is manifest that Court can grant interlocutory relief in the mandatory form.
But in doing so Court should act with greatest circumspection and such powers
should be exercised in rare and exceptional cases keeping in view the guide
lines formulated by the Supreme Court referred to above.[ 2011(2) CCC (SC) 198]
Post Decree Interlocutory Order As a Preventive Measure: After a suit is decreed
or dismissed, all interlocutory orders, if any, lose their efficacy. Such a
situation may put the aggrieved party in instant jeopardy, which he cannot get
immediately remedied by approaching the appellate Court, because for filing the
appeal after obtaining certified copies of the judgement and the prepared decree
and then approaching the appellate Court for interim protective measures a
reasonable time would be required. Demolition of the disputed standing
structure, withdrawal of the disputed money from the bank etc. are some such
Question arises as to what the aggrieved party would do in the meantime as
protective measure. There is no express provision in the Civil Procedure Code in
this regard. However, Sec. 151, C.P.C. gives enormous power to Court to pass any
order in the interest of justice. This position of law has been well explained
by the Supreme Court in a land mark judgement[ A.I.R 1962 S.C. 527]. Where there
is no specific provision, Court can resort to its inherent power and pass
necessary orders to protect justice.
Applying this proposition, immediate application can be made by the aggrieved
party in the very same Court, soon after it has pronounced its judgement, to
pass necessary interim order as protective measure, in respect of the subject
matter of the disposed of suit, till appellate Court is moved for such kind of
interlocutory order after filing of the intended appeal.
In such eventually the Court, disposing of the suit, has the jurisdiction to
later pass such order the very day, if it is satisfied that absence of such
instant order would frustrate the appeal itself, even if it is filed, and
interest of justice demands for passing such order as protective measure for a
reasonable duration. The only other condition precedent is that the applying
party must have a right of appeal against the decree.
This view gets impliedly supported by the decision of the Orissa High Court.[
Vol. 29 C.L.T. 554, A.I.R. 1964 Orissa 72] It is not correct to say that after
pronouncement of judgement the Court becomes functus officio and it cannot pass
any kind of order thereafter.
Courts are empowered to review their judgments u/s 114 C.P.C. and / or correct
their judgements and decrees u/s 152 C.P.C, both after pronouncement of
judgements. It would be fallacious to argue that for such review or correction
express provisions are there in the Code.
Express provisions are not the only provisions for the Court to act upon. No
legislative enactment dealing with procedural law, however exhaustive it may be,
can foresee all exigencies xx and the Court may be called upon, where
circumstances require, to exercise such powers as may be necessary[ Vol. 31
That is why, even after pronouncement of judgement, the Court can recall the
same u/s 151 C.P.C., if situation so warrants, as there is no express provision
for such recall[ AIR 2000 S.C. 1165 & AIR 1999 SC 2089]. Thus, Court can take
the aid of its inherent power, recognised in Sec. 151, C.P.C., to act upon in
the ends of justice where express provision is wanting in the Code.
Another similar situation can also be visualised. During pendency of a suit
interlocutory order of temporary injunction against the defendant was passed.
Thereafter the suit was dismissed for default. After such dismissal of the suit
the interlocutory order automatically got vacated. Plaintiff, thereafter, filed
petition for restoration of the suit.
During pendency of the restoration proceeding Court can pass another similar
interlocutory order in respect of the subject matter of the suit, even though
the suit is not then alive, provided the Court is satisfied that absence of such
an order would defeat the purpose of the suit even if it is later restored [
2002 (1) OLR 419].
In other words, after a suit gets terminated, for any reason whatsoever, the
Court has still the power to pass necessary order in the interest of justice,if
situation so warrants. This proposition of law applies to the trying Court and
the appellate Court as well[ 2013(II)CLR (SC) 361].
Award Winning Article Is Written By: Ms.Deepasha Rath
Authentication No: NV30814966136-15-1120