Temporary Injunction and Interlocutory Orders—Order 39
Q. What are the points of consideration in the matter of granting temporary injunction and when it should be granted?
U.P. Higher Judicial Service (Additional District Judge) Exam. 1976, 1995 (Similar question).
25th Bihar Judicial Service Exam. 2000 (Similar question)
Rajasthan Judicial Service Exam. 1977 and 1994
West Bengal Judicial Service Exam. 1990, 1999 (similar question)
Ans: In Dalpat v. Prahlad, AIR 1993 SC 276, the Supreme Court held that following are the important points of consideration in the matter of granting temporary injunction:
(1) Prima facie case: The applicant must make out a prima facie case in support of the right claimed by him. Thus, it can be said that the existence of a prima facie right and infraction of such right is a condition precedent for grant of temporary injunction.
While explaining the ambit and scope of the connotation “prima facie” case, in Martin Burn Ltd. v. Banerjee, AIR 1958 SC 79, the Supreme Court observed 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.
(2) Balance of Convenience: In Dalpat v. Prahlad, the Supreme Court held that the balance of convenience must be in favour of the applicant. In other words it can be said that the court must be satisfied that the comparative mischief, hardship or inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the opposite party by granting it.
(3) Irreparable loss injury: The applicant must show that if injunction is not granted, he will suffer irreparable loss. Irreparable loss means loss which can not be adequately remedied by damages if the injunction is not granted.
But above points for consideration of granting temporary injunction are merely illustrative. It is neither exhaustive nor absolute rules because granting of injunction is a discretionary remedy (though the discretionary power must be exercised in accordance with the sound principles and not in arbitrary manner). Injunction is an equitable relief and even if all above three conditions are satisfied there may be other circumstances leading to a refusal to grant such a relief—Supreme Court in Gujarat Bottling Co. Ltd. v. Coca Cola Co., AIR 1955 SC 2372.
Thus, injunction may not be granted on the ground of delay, laches or acquiescence—Bharat Starch and Chemical Ltd. v. Ahmedabad Mill Stores, AIR 1949 Cal 357.
When Temporary Injunction should be granted
A temporary injunction may be granted in any of following cases:—
(1) When 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—
Order 39, Rule 1(a).
(2) When the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors—Order 39, Rule 1(b).
(3) When defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in relation to any property in dispute in the suit—Order 39, Rule 1(c).
(4) When defendant is likely to commit a breach of contract or other injury of any kind—Order 39, Rule 2.
(5) When the court is of the opinion that the interest of justice so requires—Section 94(c).
Note: Temporary Injunction—According to Lord Halsbury “An injunction is a judicial process whereby a party is required to do or to refrain from diong any particular act”.
Kinds of Injunction
(1) Temporary Injunction
(2) Permanent Injunction
A temporary or interim injunction restrains a party temporarily from doing the specified act and can be granted only till the disposal of the suit or till the further orders of the court. It is governed by the provisions of Order 39 of C.P.C. It may be granted at any stage of the suit—Section 37(1) of Specific Relief Act, 1963.
On the other hand a permanent injunction restrains a party permanently (forever) from doing the specified act and can be granted only on merits at the conclusion of the trial after hearing both the parties to the suit—Section 37(2) of Specific Relief Act, 1963.
Permanent injunction is governed by Sections 38 to 42 of Specific Relief Act, 1963.
Source: Kishor Prasad, Problems & Solutions on Civil Law