Temporary Injunction

Order XXXIX, Code of Civil Procedure, 1908

  Injunction is a judicial process by which one who has invaded or is
Definition of threatening to invade the rights, legal or equitable, of another, is
injunction ordered to refrain from doing, or to do any particular act or
thing.It is know as preventive relief.
 Injunction
1. Temporary
2. Perpetual

Types of 1) Preventive
Injunction 2) Mandatory

1. Ad-Interim
2. Interim
  Perpetual/ Permanent Injunction: Perpetual injunction restrains a
party forever from doing the specified act and can be granted only
on merits at the conclusion of trial after hearing both the parties to
the suit. Section 53 & 54 of the Specific Relief Act, 1877 talk about
perpetual injunction.
 Mandatory injunction: It compels, command or order any person to
do any particular act. Mandatory injunction is governed by section
Types of 55 of Specific Relief Act.

Injunction  Ad-interim injunction: Ad Interim injunction is granted without

finally deciding an application for injunction and operates till the
disposal of the application.
 Interim injunction: Interim injunction is granted while finally
deciding main application and operates till the disposal of the suit.
Ad-interim is more interim than interim injunction
Temporary injunction can be given as ad interim or interim injunction
  Temporary Injunction restrains a party temporarily from doing any
particular act and can be granted until the final disposal of the suit
or, until further order of the court.
 As per Section 53 of the Specific Relief Act 1877, Temporary
Temporary injunction are such as to continue until a specified time or, until
Injunction the further order of the court. They can be granted at any period
of a suit.
 It is regulated by the provisions of order 39 of the Code of Civil
procedure. It can be granted during the pendency of the suit as
interim or, ad-interim order.
  Order XXXIX, rules 1 & 2 state situations when an order for
temporary injunction may be granted. These are:
When 1) The property in dispute is in danger of being
Temporary wasted,damaged,alienated or, wrongfully sold in execution of a
decree. Rule 1(a)
injunction can 2) The defendant threatens or intends to remove the property to
be granted defraud his creditors. Rule 1(b)
3) The defendant is about to commit a breach of contract or other
injury of any kind. Rule 2
  Where the Court is of the opinion that the interest of justice so
requires. Section 94(c)
Continued...  Courts have inherent power under their equity jurisdiction to grant
an injunction in any case for the interest of justice. Section 151 is
applicable here.
 A) Suit for specific relief
B) Suit for part performance
Instances of C) Ejmali property: A co-sharer in exclusive possession of a portion
granting of ejmali property can obtain an order to restrain other co-
sharer from dispossessing him. (Moharram Ali and others Vs
temporary Mohammad Madhu Mia and others, 41DLR (AD) 92)

injunction D) Suit for simple declaration

E) Affairs of companies
F) Copyrights etc
  In the case of Uttara Bank Vs Macneill and Kilburn, 33 DLR (AD)
298, the Appellate Division laid down a guideline for granting
temporary injunction which is as follows:
“ Injunction is granted when the coirt is satisfied that,
1) The applicant has a prima facie case to go to trial
Ground of
2) The protection is necessary from irreparable injury before his
Temporary legal rights can be established
injunction 3) The mischief or inconvenience likely to arise from withholding
injunction will be greater than which is likely to arise from
granting it.”
So, three most important factors that need to be considered by the
Court are Prima facie and arguable case, irreparable loss,balance of
convenience and inconvenience.
  “Prima facie case does not mean that the plaintiff should have a
case which will in all probability succeed in trial. Prima facie case
means that the contentions which the plaintiff is raising require
consideration in merit and are not liable to be rejected
summarily.”- Prakash Singh Vs State of Haryana, 2002,(4) Civil LJ
71 (P.H.)
Prima facie  “If the plaintiff claims title on the basis of purchase, he must file
case sale deed or if he claims title by inheritance he must file
khatian,rent receipts to show that the propert belonged to his
predecessor-in-interest. If he fails,then it may be said that the
plaintiff failed to make prima facie case. 33DLR (AD) 298.
When the plaintiff can show that he has a prima facie case only then
it can be said that he has a possibility of getting relief in the suit and
as such his right may be protected till final hearing.
  The applicant must further satisfy the court that he will suffer
irreparable injury if the injunction as prayed is not granted and
there is no other remedy open to him by which he can protect
himself from the consequence of apprehended injury.
 Irreparable loss means that the injury must be material one, which
Irreparable cannot be adequately compensated by damages.
 “A party, in order to get interlocutory injunction must claim,inter
injury alia, a legal right,and allege an injury which is not ordinarily
reparable by monetary compensation.” 29 DLR (SC) 82
Even if there is a prima facie case, no temporary injunction should
be issued in favour of a party if it is found that for the damages or
injury which may be caused to him, the same may be compensated
by money.
  The balance of convenience must be in favour of the applicant. In
other words the court must be satisfied that the compensation,
Balance of mischief or inconvenience which is likely to be caused to the
applicant by withholding the injunction will be greater than that
Convenience which is likely to be caused to the opposite party by granting it. 33
DLR (AD) 298.
  Whether a third party will be injured if Injunction is granted
 Whether he is in the possession of the property
Other grounds  Whether he comes to the court with clean hands

to consider  Whether he did inordinate delay in applying

 Whether it is necessary for protecting a legal right of the plaintiff
 Whether the prayer is for only harassing the opponent
No order of ad
interim or
temporary
injunction  See rule 5A of Order 39

without
hearing the
opposite party
Plaintiff’s  The plaintiff shall at first file a miscellaneous case under rule 754 of
remedies Civil Rules & Orders, volume-1, reporting the disobedience by the
defendant. Then the court granting an injunction may under Order
when the 39,rule 2(3), order the property of the defendant to be attached,
and may also order such person to ne detained in the civil prison
defendant for a term not exceeding six months, unless released by the Court
in the meantime.
disobeys
 1) Temporary injunction cannot be granted without serving notice
to the opposite party. Ad Interim injunction can be granted
without serving notice.
2) In case of temporary injunction, there arises no possibility of
injury during the time of serving notice. In case of ad interim
Difference injunction there arises possibility of injury during the time of
serving notice.
between 3) Temporary injunction arises out of the subject matter of the
Temporary original suit. Ad interim injunction arises out of the application
for temporary injunction.
and Ad-interim 4) In temporary injunction both parties are to be heard. In ad
Injunction interim injunction it is passed ex parte
5) Duration of the temporary injunction is until the further order of
the court or until a specified time. Duration of ad interim
injunction is until the temporary injunction is granted.