TEMPORARY INJUNCTION (ORDER-XXXIX RULES-1TO 5)

Updated: May 20

MEANING OF INJUNCTION- An Injunction is an order by the court to a party to the effect that he shall do or refrain from doing a particular act.

“A judicial process, by which one who has invaded or is dangerous to invade the rights (legal or suitable) of another, is restrained from continuing or appearing such wrongful act.”


FEATURE OF INJUNCTION-

A- It is a judicial process

B- The object thereby is restraint or prevention, and

C- The thing restrained or prevented is a wrongful act.


CLASSIFICATION OF INJUNCTION-

The law relating to the injunction is prescribed in the Specific Relief Act,1963 (sec- 36 to 42)

An Injunction may be classified according to the relief admitted or according to its nature or according to the operation of the time-period.

As concerns to the “time” of their operation, the injunction may be classified into two categories-

A- PERPETUAL (PERMANENT)

B- INTERLOCUTORY OR ( TEMPORARY)

A- PERPETUAL – A perpetual injunction restrains a party forever from doing the specific act and can be granted only on merits at the trial after hearing both the parties to suits. Sec-37(2) of SRA,1963

B- INTERLOCUTORY OR (TEMPORARY) - A temporary injunction or interim Injunction, restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further orders of the courts. It is regulated by order 39rule 1 to 5 of the Civil procedure of code1908 and may be admitted at any stage of the suit.

Section-37(1) of the SRA, 1963

OBJECT- The primary object of granting a temporary injunction is to maintain and preserve the status quo at the time of the institution of the proceeding and to prevent any change in it until the final determination of the suit.

GROUNDS- (ORDER- 39 RULE 1, 2 AND ALSO SEC- 94(C)-

A temporary Injunction may be admitted or granted by the court under the following conditions-

1- Where in any suit it is proved by affidavit or otherwise:

a- That 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, rule 1(a)

b- The defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors or rule 1(b)

c- The defendant threatens to dispose of the plaintiff in relation to any property in dispute in the suit, or rule 1(c)


The court may by order grant a temporary injunction to restrains such act, or makes such other order for the purposes of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit think fit, until the disposal of the suit or until further orders.

2- Where the defendant is about to commit a breach of contract, or another injury of any kind, or rule- 2(1)

3- Where the court is of the opinion that the interest of justice so requires. Sec-94(c)


PRINCIPLES- the power to grant a temporary injunction is at the discretion of the court, but this discretion should be exercised reasonably judiciously and on sound legal principles. Eventually, before admitting the injunction, the court must be satisfied with the below conditions-

a- PRIMA FACE CASE

b- IRREPARABLE INJURY

c- BALANCE OF CONVENIENCE

1- PRIMA FACIE CASE- The applicant must make out a prima facie case in support of the right claimed by him. The court must be satisfied that there is a good faith dispute raised by the applicant and on the facts before the court there is a probability of the applicant being entitled to the relief claimed by him.


2- IRREPARABLE INJURY- The applicant must further satisfy the court that he will suffer irreparable injury if the injunction as prayed is not admitted, and there is no other remedy open to him by which he can protect himself from the consequences of recognized the injury.

The word “IRREPARABLE INJURY” means that the injury cannot be reparable.


3- BALANCE OF CONVENIENCE- the balance of convenience must be in favor of the applicant. In other words the court must be satisfied that the compensation, mischief, or inconvenience is likely to be caused to the opposite party by admitting it.


CONSEQUENCES OF DISOBEDIENCE OR BREACH OF INJUNCTION-

Section 94(c) and Rule 2-A of order 39 provides for the consequences of disobedience or breach of an order of an injunction issued by the court.


The penalty for disobedience or breach of an order of an injunction may be either arrest or attachment oh his property of hi properly or both of the opposite party who has committed a breach.


The detention in civil prison shall not exceed three months and the attachment of property shall not remain in force for more than one year.

If the disobedience or breach still remains, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party.

The transferee court can also operate his power and can punish for breach of injunction admitted by the transferor court.


INJUNCTION ON INSUFFICIENT GROUND-

When in any suit in which an order of temporary injunction has been acquired by the plaintiff on insufficient grounds, or where the suit of the plaintiff fails and it appears to the court that there were no reasonable or probable grounds for instituting it, on application being made by the defendant, the court may order the plaintiff to pay such amount not exceeding 1000 rs, as if deems a reasonable compensation to the defendant for the expenses or injury to reputation caused to him.

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