PROJECT

SUBJЕCT: Drafting of Pleadings and Conveyance

TOPIC:Temporary Injunction

Submitted To : Submitted By :
Ms. Shakuntala Sangam Aditi Jaiswal
Assistant Professor (Law) Sem. VI, B.A.L.L.B. (H)
Dr. RMLNLU, Lucknow Enrollment No.- 160101007
 Acknowledgement
I would like to take this opportunity to thank Ms. Shakuntala Sangam, without whose
valuable support and guidance, this project would have been impossible. Her excellent
teaching guidance and steadfast support has been invaluable and ensured the completion of
this project.

Of course, I never would have been able to conduct this study or write this final draft of my
project without the assistance provided by the library staff and would also like to thank the
library staff for having put up with my persistent queries and having helped me out with the
voluminous materials needed for this project.

Furthermore, I would also like to thank and show my deepest appreciation towards my
seniors for having guided me and culminate this acknowledgement by thanking my friends
for having kept the flame of competition burning, which spurred me on through the days and
I am also indebted to my various batch-mates, all of whom took on extra responsibilities to
allow me the time needed to document my findings and share them here, to whom I owe a
special thanks.

TABLE OF CONTENTS

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 INDEX OF AUTHORITIES.............................................................................................4

INTRODUCTION..............................................................................................................5

DEFINITION......................................................................................................................6

KINDS OF INJUNCTIONS..............................................................................................6

TEMPORARY INJUNCTION.........................................................................................7

4.1. LEGAL PROVISION 7

4.2. SCOPE 7
4.3. PRINCIPLES 8
4.4. ENFORCEMENT 12
4.4.1. Enforcement of a decree for injunction :-..........................................................12
4.5. DRAFT OF APPLICATION FOR TEMPORARY INJUNCTION 13
CONCLUSION.................................................................................................................16

INDEX OF AUTHORITIES
Cases

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Agricultural Produce Market Committee v. Girdharbhai Ramjibhai Chhaniyara , A.I.R. 1997
S.C. 2674................................................................................................................................8
Best Sellers Retail India (P) Ltd. v. Aditya Nirla Nuvo Ltd., (2012 ) 6 S.C.C. 792................10
Gujarat Bottling Co. Ltd. v. Coca Cola Co., A.I.R. 1995 S.C. 2372.........................................8
Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 S.C.C. 225........................................11
Seema Arshad Zaheer & Ors. v. Municipal Corporation of Greater Mumbai & Ors., (2006) 5
Scale 263................................................................................................................................9
Web Sources

https://blog.ipleaders.in/injunction-temporary/..........................................................................5
https://definitions.uslegal.com/t/temporary-injunction/.............................................................6
https://legal-dictionary.thefreedictionary.com/temporary+injunction.......................................7
https://thelawdictionary.org/temporary-injunction/...................................................................6

1. INTRODUCTION

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The law of injunction in our country is having its origin in the Equity Jurisprudence inherited
from England who borrowed it from Roman Law. It is basic principle of our law that if there
is a right there should be a remedy. An injunction is a Judicial Remedy prohibiting persons
from doing a specified act called a restrictive injunction or commanding them to undo some
wrong or injury called a mandatory injunction and may be either temporary, interim or
interlocutory or permanent. Relief of injunction cannot be claimed as of right. It is
discretionary, equitable relief. The relief of injunction must be granted where it is absolutely
necessary. It may be granted where it would help in preservation of peace and public order.

Where there is possibility of breach of peace of public order, the Court ought to proceed with
caution. An injunction is a remedy against an individual and should be issued only in respect
of acts done by him against whom it is sought to be enforced. An Injunction is a judicial
process whereby a party is required to do, or to refrain from doing, any particular act. It is a
remedy in the form of an order of the court addressed to a particular person that either
prohibits him from doing a continuing to do a particular act (Prohibitory injunction); or
orders him to carry out a certain act(Mandatory injunction.)

The primary purpose of granting interim relief is the preservation of property in dispute till
legal rights and conflicting claims of the parties before the court are adjudicated. The court in
the exercise of sound judicial discretion can grant or refuse to grant interim relief.1

2. DEFINITION

1
https://blog.ipleaders.in/injunction-temporary/

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 An injunction is defined in Halsbury's Laws as: “A judicial process whereby a party is
ordered to refrain from doing or to do a particular act or thing.” Oxford dictionary meaning of
word Injunction is “a Judicial warning or a Judicial order restraining a person from an action
or compelling a person to carry out a certain act.”

3. KINDS OF INJUNCTIONS

Injunctions are mainly of two kinds i.e. temporary and perpetual injunction. A party against
whom a perpetual injunction is granted is thereby restrained forever from doing the act
complained of. A Perpetual injunction can only be granted by 3 a final decree made at the
hearing and upon the merits of the suit. On the other hand a temporary or interim injunction
may be granted on an interlocutory application at any stage of a suit. The injunction is called
temporary as it is until the suit is disposed of or until the further order of the Court.
Injunctions are
(I) preventive, prohibitive or restrictive, that is when they prevent , prohibit or
restrain someone from doing something; or
(II) Mandatory, that is, when they compel, command or order person to do something.
Again, an injunction is granted without finally deciding an application for
injunction and operates till the disposal of the application.2

4. TEMPORARY INJUNCTION
4.1. LEGAL PROVISION

Under India Legal System, the law relating to injunction has been provided in the Specific
Relief Act, 1963. Injunction is categorized in two form i.e. Permanent Injunction and

2
https://thelawdictionary.org/temporary-injunction/
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Temporary Injunction. Section 37 of Specific Relief Act, 1963 provides that "temporary
Injunction are such as are to continue until a specified time, or until the further order of the
court, and they may be granted at any stage of a suit." The procedure for seeking temporary
injunction has been provided under Order XXXIX of the Code of Civil Procedure, 1908.
However, an injunction being discretionary equitable relief cannot be granted when equally
efficacious relief is obtainable in any other usual mode or proceeding. Indian courts regulate
the granting of a temporary injunction in accordance with the procedure laid down under
Sections 94, 95 and Order XXXIX of the Civil Procedure Code, whereas, temporary and
perpetual injunctions are prescribed by Sections 36 to 42 of the Specific Relief Act.3

4.2. SCOPE

It provides that when the defendant threatens to dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in suit, the Court may grant a
temporary injunction to restrain such an act or make other order for the purpose of preventing
the dispossession of the plaintiff or for the purpose of preventing the causing of injury to the
plaintiff in relation to any property in dispute. 10. If the defendants are creating third party
interest/rights as he is trying to dispose of part of the property, the plaintiff can claim the
injunction. Temporary injunction is a provisional remedy that is invoked to preserve the
subject matter in its existing condition. Its purpose is to prevent dissolution of the plaintiff's
rights. The main reason for use of a temporary injunction is the need for immediate relief.

Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court
may in order to prevent the ends of justice from being defeated, grant a temporary injunction
or make such other interlocutory order as may appear to the Court to be just and convenient.
Section 95 of Civil Procedure Code further provides that where in any suit a temporary
injunction is granted and it appears to the Court that there were no sufficient grounds, or the
suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable
ground for instituting the same, the Court may on application of the defendant award
reasonable compensation which may be to the extent of the pecuniary Jurisdiction of the
Court trying the suit.4

3
https://definitions.uslegal.com/t/temporary-injunction/

4
https://legal-dictionary.thefreedictionary.com/temporary+injunction
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 4.3. PRINCIPLES

While granting temporary injunction the tests be applied are (1)Whether the plaintiff has a
prima facie case, (2) Whether the balance of convenience is in favour of plaintiff and (3)
Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is
disallowed.

The court while granting or refusing to grant 5 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. Thus the
court has to exercise its sound judicial discretion in granting or refusing the relief of ad
interim injunction pending the suit.

At the stage of deciding the application for temporary injunction, the Court is not required to
go into the merits of the case in detail.

Generally, before granting the injunction, the court must be satisfied about the following
aspects : One who seeks equity must come with clean hands. One who seeks equity must do
equity. Whenever there is right there is remedy. The power to grant a temporary injunction is
at the discretion of the court. This discretion, however, should be exercised reasonably,
judiciously and on sound legal principles. Injunction should not be lightly granted as it
adversely affects the other side. The grant of injunction is in the nature of equitable relief, and
the court has undoubtedly power to impose such terms and conditions as it thinks fit. Such
conditions, however, must be 6 reasonable so as not to make it impossible for the party to
comply with the same and thereby virtually denying the relief which he would otherwise be
ordinarily entitled to.

In Agricultural Produce Market Committee Case5, the Hon'ble Apex Court has held that "a
temporary injunction can be granted only if the person seeking injunction has a concluded
right, capable of being enforced by way of injunction."

5
Agricultural Produce Market Committee v. Girdharbhai Ramjibhai Chhaniyara , A.I.R. 1997 S.C.
2674

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The Hon'ble Apex Court through catena of judgments like landmark judgment in Gujarat
Bottling Co. Ltd. Case6, held that the Court needs to follow certain guidelines while
considering an application for grant of temporary injunction, some of which are briefly stated
hereunder:

 The applicant seeking relief of temporary injunction shall have to establish a prima
facie case in his favour. For this purpose, the Court will not examine the merits of the
case rather only the basic facts on which it is established that the applicant has a prima
facie case to contest. Thereafter the applicant also has to establish that the
allegations / averments made in the application on which the temporary injunction is
sought are plausible.
 The court will also examine the conduct of the applicant and such conduct needs to be
examined even at the stage where the application for setting aside an order under
Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 is filed.

 The court has to examine the balance of convenience i.e. the balance of comparative
loss caused to the applicant and the respondent in the case of not passing the order.

 The court will first of all will examine what is the extent of loss that would be caused
to the applicant if the order is not passed and also whether it is reparable by monetary
compensation i.e. by payment of cost. Then it will examine the loss suffered by
respondent if the order is passed and thereupon it has to see which loss will be greater
and irreparable. The party who would suffer greater loss would be said to be having
balance of convenience in his favour and accordingly, the court will pass or refuse to
pass the order.

 The court has the power also to ask the party to deposit security for compensation or
to give an undertaking for the payment of the compensation, if ordered.

It is to be understood that relief of temporary injunction cannot be sought for some right
which would arise in future. Similarly, an injunction cannot be obtained to restrain a party

6
Gujarat Bottling Co. Ltd. v. Coca Cola Co., A.I.R. 1995 S.C. 2372

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from filing a suit. In Seema Arshad Zaheer Case7, the Hon'ble Supreme Court has indicated
the salient features of prima facie case as under:

"The discretion of the court is exercised to grant a temporary injunction only when the
following requirements are made out by the plaintiff: (i) existence of a prima facie case as
pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction;
(ii) when the need for protection of the plaintiff's rights is compared with or weighed against
the need for protection of the defendant's rights or likely infringement of the defendant's
rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility
of irreparable injury being caused to the plaintiff if the temporary injunction is not granted.
In addition, temporary injunction being an equitable relief, the discretion to grant such relief
will be exercised only when the plaintiff's conduct is free from blame and he approaches the
court with clean hands."

However, in Best Sellers Retail India (P) Ltd. Case8, the Hon'ble Supreme Court observed
that prima facie case alone is not sufficient to grant injunction and held that:

"Yet, the settled principle of law is that even where prima facie case is in favour of the
plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on
account of refusal of temporary injunction was not irreparable."

Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 provides for ex-parte temporary
injunction in the cases of extreme urgency. However, Rule 3 does not stipulate a separate
application for ex-parte injunction rather such an application should be a part of an
application for a bi-parte temporary injunction and in such application an urgency shall be
shown by the applicant so as to warrant the passing of an ex-parte injunction/order. However,
such an order has to be temporary. The essential safeguards in this regard are briefly stated as
under:

 The matter should be urgent and overwhelming.

 The other elements for the grant of temporary injunction order as explained in the
Gujarat Bottling case shall be existing.

7
Seema Arshad Zaheer & Ors. v. Municipal Corporation of Greater Mumbai & Ors., (2006) 5 Scale
263.
8
Best Sellers Retail India (P) Ltd. v. Aditya Nirla Nuvo Ltd., (2012) 6 S.C.C. 792.

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  The court shall record reasons for the grant of exparte order.

 It is the duty of the applicant to serve a notice to the other party after the order has
been passed and such notice shall be coupled with a copy of the application, the
plaint, the affidavit and any other document which were filed in support of the
application. Upon serving such notice, the applicant shall on the same day of the order
or on the next day file an affidavit of his having served such a notice.

 Under Order XXXIX Rule 3A of the Code of Civil Procedure, 1908, it is a mandate
for the Court that after passing such an ex-parte order, it shall continue with the bi-
parte proceedings and shall dispose of the application within 30 days. However, the
said 30 days period is not the upper limit for ex-parte orders i.e. the ex-parte order
will not get automatically vacated upon the lapse of 30 days rather it can further be
extended beyond 30 days in extreme cases.

The Hon'ble Supreme Court in Morgan Stanley Case 9, inter alia observed the under
mentioned guidelines for grant of temporary injunction besides others:

 Where irreparable or extremely serious injury will be caused to the applicant, ex-parte
order can be passed;
 The court shall examine the time when the plaintiff got notice of the act complained;

 If the plaintiff has acquiesced to the conduct of the respondent then ex-parte
temporary injunction shall not be passed;

 The applicant shall be acting in utmost good faith; and

 Such an order shall be for a temporary period

4.4. ENFORCEMENT

4.4.1. Enforcement of a decree for injunction :-

9
Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 S.C.C. 225.

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The wording as framed in Order 21, Rule 32(1) would indicate that in enforcement of the
decree for injunction a judgment-debtor can either be put in civil prison or his property can be
attached or both the said courses can be resorted to. But Sub-rule (5) of Rule 32 shows that
the Court need to resort to either of the above two courses and instead the Court can direct the
judgment-debtor to perform the act required in the decree or the Court can get the said act
done through some other person appointed by the Court at the cost of the judgment-debtor.
Thus, in execution of a decree the Court can resort to a three-fold operation against
disobedience of the judgment-debtor in order to compel him to perform the act. But, once the
decree is enforced the judgment-debtor is free from the tentacles of Rule 32. A reading of that
rule shows that the whole operation is for enforcement of the decree. If the injunction or
direction was subsequently set aside or if it is satisfied the utility of Rule 32 gets dissolved.
The DH entitle to execute the decree for injunction and partition, without impediment if not
executed the decree within 12 years as per Article 136 of the Limitation Act then DH has to
face the consequences thereof at least to the extent of executability of decree for partition. As
per the provisions of Article 135 of the said Act, decree granting mandatory injunction, shall
have to be executed within three years from the date of decree or where a date is fixed for
performance, from such date. However, here it is clear that proviso attached to Article 136 is
self explanatory to the effect that for the enforcement of execution of a decree granting
perpetual injunction shall not be subject to any period of limitation.

M. A. Raja S. Vs. Vedhantham Pillai reported in 2000(2) C.T.C. page 199 (Madras High
Court)

APPEAL Ramji Gupta Vs. Gopi Krishan reported in AIR 2013 SC 3099. Under the Code of
Civil Procedure, certain specific orders mentioned in Section 104 and Order 43 Rule 1 of
C.P.C. are only appealable and no appeal shall lie from any other orders. Therefore, the order
made under Section 151 of CP.C. being not included in the category of appealable orders, no
appeal is maintainable against such orders.

Disobedienc, Remedy Effect : Remedies and effect for disobedience of temporary injunction
is laid down in the provisions of Order 39 Rule 2-A of the Civil Procedure Code. Sub Rule
(2) provides that if the disobedience or breach continues beyond one year from the date of
attachment, the Court is empowered to sell the property under the attachment and compensate
the affected party from such sale proceeds. In other words, attachment will continue only till
the breach continues or the disobedience persists subject to a limit of one year period. If the
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disobedience ceases to continue in the meanwhile the attachment also would cease. The
remedy for the enforcement/disobedience of either perpetual or mandatory injunction is lying
under Order 21 Rule 32 of C.P.C. Remedies and effect for disobedience of a temporary
injunction is laid down in the provisions of Order XXXIX Rule2A of the Civil Procedure
Code. The remedy for the enforcement/disobedience, of either perpetual or mandatory
injunction is lying under Order XXI R.32 of CPC.

4.5. DRAFT OF APPLICATION FOR TEMPORARY INJUNCTION

Application under order 39 Rule 1 and 2 

IN THE COURT OF ______

Application No:______ of 2004

Applicant 
Versus

Respondent
 
Application under order 39 Rule 1 and 2 of the Civil Procedure Code

Respectfully Showeth: 

1. That the applicant/plaintiff has filed a case before this honorable court hearing
where of will take some time. 

2. That it is apparent from perusal of grounds and documents attached therewith that
the applicant has prima facie a very good case in his favour and the case is likely to
succeeds. The balance of convenience is in favour of the applicant. The grounds of the
case may be read as part of this application to save the repetition. 

3. That the interest of justice demands that the respondent is restrained from ______.
In case the respondents are not restraining that the applicant will suffer irreparable
loss and injury which cannot be compensated in terms of money and filing of this case

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will become infructuous. 

4. It is therefore most respectfully prayed that the respondents be restrained from ____
in the interest of justice. Such other orders he also passed in favour of the applicant as
deemed fit in facts and circumstances of the case. 

Coimbatore Applicant 

______ Through, Advocate 

In the Court of ________

Application No:______ of 2004

Applicant 
Versus

Respondent 

Affidavit in support of application under order 39 Rule 1 and 2 of the Civil Procedure
Code.

I, ______, do hereby solemnly affirm and declare as under:- 

1. That the accompanying application has been prepared under my instructions. 

2. That the contents of paras 1 to __ are true and correct to the best of my knowledge. 

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 3. That I further solemnly affirm and declare that the contents of this affidavit of mine
are correct and true to the best of my knowledge and no part of it is false and nothing
material has been concealed therewith. 

Affirmed at Coimbatore this ______. 

Deponent 

5. CONCLUSION
In view of the aforesaid, it can be concluded that grant of temporary injunction cannot be
claimed by the party as a matter of right nor can be denied by the Court arbitrarily. However,
the discretion to be exercised by the Court is guided by the principles mentioned hereinabove
and depends on the facts and circumstances of each case. The party seeking relief not only

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has to establish prima facie case but also the irreparable loss that would be caused in case of
denial to grant relief and that the balance of convenience lies in his favour. Thus rational
behind the provision of Order XXXIX of the Code of Civil Procedure, 1908 as laid down by
Hon'ble Supreme Court in the case of M. Gurudas and Ors. 10 can be summarized as "While
considering an application for injunction, the Court would pass an order thereupon
having regard to prima facie, balance of convenience and irreparable injury".

An injunction is an equitable remedy and as such attracts the application of the maxim that he
who seeks equity must do equity. Granting of injunction is entirely in the discretion of the
Court, though the discretion is to be sound and reasonably guided by Judicial Principles. The
power to grant a temporary injunction is at the discretion of the court. This discretion,
however, should be exercised reasonably, judiciously and on sound legal principles.
Injunction should not be lightly granted as it adversely affects the other side. The grant of
injunction is in the nature of equitable relief, and the court has undoubtedly power to impose
such terms and conditions as it thinks fit. Such conditions, however, must be reasonable so as
not to make it impossible for the party to comply with the same and thereby virtually denying
the relief which be would otherwise be ordinarily entitled to. The general rule is that grant of
an injunction is a matter of discretion of the court and it cannot be claimed as of right.
However, the discretion has to be exercised in a judicious manner and in accordance with the
provisions relating to the grant of injunction contained in the specific Relief Act. It is well
settled that no interim injunction would be issued if final relief cannot be granted. When
plaintiff has no personal interest in the matter, injunction cannot be granted.

10
M. Gurudas and Ors. Vs. Rasaranjan and Ors. – AIR 2006 SC 3275

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