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What are The remedies available when Order of Injunction is Breached or not complied with?

The Law of Injunction in India has its origin in the Equity Jurisprudence of England who too in its turn borrowed it from the Roman Law, wherein, it was known as Interdict. The Roman Interdicts were divided in three parts, Prohibitory, Restitutory and 'Exhibitory.

The Prohibitory Interdict corresponds to Injunction. The Injunction as a chancery remedy developed at the time of Henry, the Vlth. The Chancellor set aside a certain bond by the Plaintiff as one not binding on him. The Court of Common Pleas, however, gave a decree with bond. Chancellor thereupon devised the remedy of Injunction by which he prohibited execution of the decree of Common Law Court.

This exercise of power by issuing Injunction by the Chancery Court was viewed with jealousy by the Common Law Court and it became a source of conflict between the two jurisdictions. This conflict rose to the climax between the Lord Justice Coke & Lord Chancellor Ellesmere in 1816. A decree was obtained from Lord Coke by practising gross fraud.

The Chancellor thereupon by an Injunction perpetually enjoined the decree-holder from proceeding to execute his Judgment. The validity of this procedure of issuing Injunction was seriously questioned. The matter was referred to Bacon, the then Attorney General and other Counsel, who finally settled the question in favour of Chancellor.

The jurisdiction to issue Injunctions was thus affirmed and the remedy which is termed as the strong arm of the Courts of equity has contributed a lot to consolidate the position of the Judiciary in dispensing Justice between the litigant parties.

Meaning of Injunction

An Injunction is an equitable remedy in the form of a Court Order that compels a party to do or refrain from 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. An injunction clearly forbids a certain type of conduct. It is a remedy that originated in the English Courts of equity.

Like other equitable remedies, it has traditionally been given when a wrong cannot be effectively remedied by an award of money damages. Injunctions are intended to make whole again someone whose rights have been violated. Nevertheless, while deciding whether to grant an Injunction, Courts also take into account the interests of non-parties (that is, the public interest). When deciding whether to give an Injunction, and deciding what its scope should be, Courts give special attention to questions of fairness and good faith. One manifestation of this is that Injunctions are subject to equitable defenses, such as laches and unclean hands.

Injunctions are given in many different kinds of cases. They can prohibit future violations of the law, such as trespass to real property, infringement of a patent etc. Taking in to consideration the duration and the stage, they can be classified into Temporary Injunctions and Perpetual Injunctions.

Otherwise, an Injunction that requires conduct is called a Mandatory Injunction. An Injunction that prohibits conduct is called a Prohibitory Injunction. Many Injunctions are both—that is, they have both mandatory and prohibitory components, because they require some conduct and forbid other conduct.

When an Injunction is given, it can be enforced with equitable enforcement mechanisms such as contempt. It can also be modified or dissolved (upon a proper motion to the Court) if circumstances change in the future. These features of the Injunction allow a Court granting one to manage the behavior of the parties.
In Indian legal system the Law of Injunctions is mainly governed by Order XXXIX OF Code of Civil Procedure, 1908 and Section 36 & 42 of the Specific relief Act, 1963. Section 94 (c) of the Civil Procedure Code, 1908 also gives supplemental provision for grant of Temporary Injunction. It is also settled that there is no bar in granting Injunction or Supplementary Orders under Section 151 of the Civil Procedure Code, 1908 for compliance of Injunction in just cases. The later provision of inherent powers increases the scope of Civil Courts for granting Injunctions. Interlocutory Orders or as we know them Orders of Injunction passed by Courts pending disposal of the suit, application or proceedings are a regular feature in every lawyer's practice. You are either applying for the same if you are a Plaintiff or attempting to prevent the same being passed against you if you are a Defendant. We encounter this day in and day out. These Orders inure till the disposal of the suit or till they are otherwise set aside in appeal or vacated due to changed circumstances or lapsing of the orders in cases where the orders are limited only up to a particular date or only for a particular purpose.

Breach of Injunction and how to execute Order of Injunction

Orders of injunction are passed in view of the inherent jurisdiction of the Court under Order 39 of the Code of Civil Procedure, 1908 which sets out the various circumstances in which an order of injunction can be passed.

In order to give power to the Trial Court to punish the erring Defendant committing breach of an Interlocutory Order Rule 2-A was introduced in Order XXXIX of the of the Civil Procedure Code, 1908. The purpose of Rule 2-A of CPC is not to punish a person who had disobeyed the Injunction Order but to enforce it. Only wilful disobedience invites the penal action. Rule 2-A of Order 39 of the Civil Procedure Code, 1908 does not apply to the Final Order decree of Permanent Injunction passed by the Court at the conclusion of the hearing of the suit. Rule 2-A would apply for breach of an undertaking given to the Court.

The proceeding initiated on the ground of disobedience or breach of Injunction Order is the nature of a criminal proceeding. Here the principle of criminal law will apply and the Plaintiff will have to establish beyond any shadow of doubt that the Defendants had committed disobedience or breach of the Injunction Order even though he had full knowledge of the same.
There also Orders of attachment before Judgment under Order 38 (2) of Code of Civil Procedure, 1908 which are also passed.

The party committing disobedience and breach of Injunction, his property is liable to be attached and such person may also be detained in the Civil prison for a term, not exceeding three months. Attachment made under this Rule shall not remain in force more than a period of one year.

In a case of continuation of disobedience then attached property be sold, and out of the sale proceeds, the Court may award such compensation as it think fit to the injured party and balance, if any, shall be returned to the Owner. Rule 11 of Order 39 of the Civil Procedure Code, 1908 empowers the Court to strike of defence of Defendant who commit breach of an Order of the Injunction. The remedy for the enforcement/disobedience of either perpetual or mandatory Injunction is to proceed in accordance with Order 21 Rule 32 of Code of Civil Procedure, 1908 by levying execution.

A third type of Injunctive Orders which we regularly come across are orders passed by the Court under Section 9 of the Arbitration & Conciliation Act 1996. There are also Orders of Injunction passed in terms of exercise of writ jurisdiction in constitutional matters where the challenges normally are to Orders of Inferior Courts, Authorities, Tribunals, etc.

Legal Proposition

  1. What is to happen to these Orders of Injunction and what is the consequence of these Orders of Injunction when parties choose to ignore them?
  2. Can a party choose to simply say I will not follow the Order, whatever, it may be and render the Order passed as infructuous or non-effective?
  3. What are the remedies available to a person who has an Order of Injunction his/her favour and finds the Defendant or Respondent is not complying with the order?

As is well known, these Orders take many forms and usually are prohibitory in nature and meant to preserve the subject of the dispute or prevent damage or loss to the party applying. Orders of Injunction are normally sought (to prevent parties from entering into third-party contracts, breaching contracts, creating third-party rights, trespassing, etc.) so that the entire suit or action in which final relief or orders are to be passed is not rendered infructuous.

The Orders of Injunction are sought in suits/actions for specific performance, for trespass, for breach of contractual rights, for land, pertaining to development rights, partnership disputes and partition actions amongst a host of others. It is in such suits/actions that the Plaintiff applies for Interim Relief and depending upon the merits of the case the Court passes a temporary injunction pending disposal of the suit against the Defendant.

There arise many situations when the Defendant would not want to be bound by the order and would try to get out of it or frustrate it by creating third-party rights or dealing with the property even after Orders of Injunction, although legally the Orders of Injunction are required to be obeyed and cannot be flouted with impunity.

Legal Position On The Subject
The following cases set out the view consistently taken by Supreme Court and other High Courts:

  1. Supreme Court in [Satyabrata Biswas Vs. Kalyan Kumar Kisku, (1994) 2 SCC 266]:
    23. … Any act done in the teeth of the (court) order of status quo is clearly illegal. All actions including the grant of sub-lease are clearly illegal.
  2.  Supreme Court of India in[Surjit Singh & Ors. Vs Harbans Singh & Ors, 1995 SCC (6) 50] held that:

    4. … In defiance of the Restraint Order (of the Court), the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court Orders otherwise. The Court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.
  3. Supreme Court in [Delhi Development Authority Vs Skipper Construction Co. (P) Ltd. & Anr., (1996) 4 SCC 622] held that:

    17. The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled.
  4. Again Supreme Court of India in [Tayabbhai M. Bagasarwalla & Anr. Vs. Hind Rubber Industries (P) Ltd., (1997) 3 SCC 443]:

    28. … these Orders (of the Court) have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the Plaintiff provided the violation is committed before the decision of the Court on the question of jurisdiction.
  5. Supreme Court while considering the similar issue in [Vidur Impex & Traders (P) Ltd. & Ors. Vs. Tosh Apartments (P) Ltd. & Ors., (2012) 8 SCC 384] held:

    42… At the cost of repetition, we consider it necessary to mention that Respondent 1 had filed suit for specific performance of agreement dated 13-9-1988 executed by Respondent 2. The Appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when Respondent 2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers.

    These transactions were in clear violation of the Order of Injunction passed by the Delhi High Court which had restrained Respondent 2 from alienating the suit property or creating third-party interest. To put it differently, the agreements for sale and the sale deeds executed by Respondent 2 in favour of the Appellants did not have any legal sanctity.
  6. Again Supreme Court in [Jehal Tanti & Ors. Vs Nageshwar Singh (dead), (2013) 14 SCC 689]:
    Since the sale deed was executed in favour of Respondent 1 in the teeth of the Order of Injunction passed by the Trial Court, the same appears to be unlawful.
  7. In [Mohd. Idris & Anr. Vs Rustam Jehangir Babuji & Ors., (1984) 4 SCC 216, the Hon'ble Supreme Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its Orders. The Petitioners therein had given an undertaking to the Bombay High Court.

    They acted in breach of it. A Learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the Learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended that the Learned Judge was not justified in giving the aforesaid directions in addition to punishing the Petitioners for contempt of court. The argument was rejected holding that the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking).

    The above principle has been applied even in the case of violation of Orders of Injunction issued by Civil Courts. In [Clarke Vs Chadburn, (1985) 1 WLR 78], Sir Robert Megarry V.C. observed:

    I need not cite authority for the proposition that it is of high importance that Orders of the Court should be obeyed. Wilful disobedience to an Order of the Court is punishable as a Contempt of Court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly affected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for Contempt of Court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law.

    If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them.
  8. In [Century Flour Mills Ltd. v/s S. Suppiah, 1975 SCC OnLine Mad 7313], it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of Justice.

    The exercise of inherent powers vested in the Court under Section 151 of the Code of Civil Procedure, 1908 are wide and are not subject to any limitation and based on the principle that no party can be allowed to take advantage of his own wrong in spite of the Order to the contrary passed by the Court. That was a case where a meeting was held contrary to an Order of Injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the Interim Order.
  9. In [Sujit Pal Vs Prabir Kumar Sun & Ors., 1985 SCC OnLine Cal 14] a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the Plaintiff in violation of the Order of Injunction and took possession of the property. The Court directed the restoration of possession to the Plaintiff with the aid of police. The Court observed that no technicality can prevent the Court from doing Justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law.

11. Thus it is apparent from the said observation of the Supreme Court that no technicality can prevent the Court from doing justice in exercise of its inherent power. Order 39, Rule 2A lays down a punitive measure for the purpose of compelling a party to comply with the Order of Injunction. The process as contemplated by the said provision may or may not be ultimately effective but, in any event, the procedure laid down in Order 39, Rule 2A is incapable of granting an immediate relief to a party who has been forcibly dispossessed in violation of an Order of Injunction. We do not think that in such a case the Court is powerless to grant relief to the aggrieved party in exercise of its inherent power.

The very object for which Order 39, Rule 2A has been enacted will be fulfilled by the grant of a temporary mandatory injunction and restoration of possession of the aggrieved party. The inherent power of the Court as recognised in Section 151 of the Code is in addition to the power conferred on the Court under the provisions of the Code. All that the Court is concerned is to prevent abuse of the process of Court and to do justice by immediately intervening under circumstances which require such intervention by the Court.

(10) In [Keshrevial Jivji Shah & Anr. Vs Bank of Maharashtra & Ors.. 2004 SCC OnlIne Bom 368], it was held:

27. We cannot accept Shri Naphade's contention that observations of the Supreme Court in {Surjit Singh & Ors. Vs Harbans Singh & Ors., (1995) 6 SCC 50} should be read as restricted to proceedings under Order 22 Rule 10 of the Civil Procedure Code and the same cannot be extended to defiance of Injunction Order issued under Order 39 Rule 1 of the Civil Procedure Code. Once the issue is placed on the pedestal of public policy and the very faith of litigants in Rule of Law and administration of Justice, then it is not possible to make the distinction or bifurcation suggested by Shri Naphade.

It would mean that consequences of nullifying such transaction not being provided by the statute, it would not lose its legal efficacy even if it is in utter disregard to or in violation of or breach of prohibitory order or Order of Injunction issued by a Court of Law. It would mean that parties can breach and violate Court Orders openly and with impunity neither they nor the beneficiaries suffer any consequences. It is time that we recognise the principle that transfer of immovable property in violation of an Order of Injunction or prohibition issued by Court of Law, confers no right, title or interest in the transferee, as it is no transfer at all.

The transferee cannot be allowed to reap advantage or benefit from such transfer merely because he is not party to the proceedings in which Order of Injunction or other prohibitory direction or restraint came to be issued. It is enough that the transferor is a party and the Order was in force. These two conditions being satisfied, the transfer must not be upheld. If this course is not adopted then the tendency to flout Orders of Courts which is increasing day by day can never be curbed.

The Court exercises its powers on the foundation of respect and regard for its authority by litigating public. People would lose faith and respect completely if the Court does not curb and prevent this tendency. The note of caution of the Supreme Court must be consistently at the back of everybody's mind. Therefore, Shri Naphade is not right in the distinction which he is trying to make.

28. Equally untenable is the contention of Shri Naphade that an Order of Injunction will bind only the transferor in this case. It is his submission that the said order does not bind the world at large. He submits that ownership rights are neither taken away nor restricted in any manner by Order of Injunction or other preventive directions. He submits that the transfer in favour of his client was thus neither invalid nor illegal, leave alone null and void. For the reasons already recorded above, we find it difficult to accept this contention of Shri Naphade. Decision of the Supreme Court in {Krishan Kumar Narula Vs State of Jammu & Kashmir (1967) 3 SCR 50} has no application.

There, the Supreme Court was distinguishing an Order of Stay from an Order of Injunction. The distinction was made in the context of consequences upon breach and violation of such Orders. It is in that context that the Supreme Court observed that the Order of Stay is qua a Court, whereas an Order of Injunction reaches and touches a party to the lis.

These observations cannot be applied when it is noticed that during the pendency of an Order of Injunction, immovable property, which is subject-matter of Restraint or Injunction, is transferred. When this course is admittedly adopted, then there is no choice but to declare the transaction as illegal. There is no question of then deciding the nature and effect of the Order of Injunction. 29.

Other Remedies
There is also a remedy available to apply for holding the violator guilty of Civil Contempt under Section 2 (b) of the Contempt of Courts Act, 1971. This remedy enables the Court to (if Contempt is proved) pass Orders for Detention of the contemnor which is a strong deterrent and usually results in the contemnor reversing the transaction or step taken in order to avoid the stringent punishment of imprisonment. In cases of Companies the Directors can be hauled up for Contempt and punished.

It must however be noted that since the Orders of Injunction operate only till the disposal of the suit finally in the event that there is a transaction which is contrary to the Injunction the same would not take effect if the suit is decreed in favour of the Plaintiff but in the event the suit of the Plaintiff fails the necessary consequences is that the Order itself of Temporary Injunction comes to an end an d in that event the transaction pending the suit would continue and take effect.

Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the people is the source and succour to invigorate Justice intertwined with the efficacy of law. The principle of Justice is ingrained in our conscience and though ours is a nascent democracy which has now taken deep roots in our ethos of adjudication -- be it Judicial, Quasi-Judicial or administrative as hallmark, the faith of the people in the efficacy of Judicial process would be disillusioned, if the parties are permitted to abuse its process and allowed to go scot free.

It is but the primary duty and highest responsibility of the Court to correct such orders at the earliest and restore the confidence of the litigant public, in the purity of fountain of Justice; remove stains on the efficacy of Judicial adjudication and respect for Rule of Law, lest people would lose faith in the Courts and take recourse to extra-constitutional remedies which is a death-knell to the Rule of Law.

Operative Orders of Injunction cannot be ignored and if so ignored will not only invite the wrath of the Court but will invariably have the effect of the Court nullifying the transactions and preventing the defaulting party acting contrary to Injunctions issued till the injunctive relief is in force.

Written By: Dinesh Singh Chauhan, Advocate, J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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