JAMIA MILLIA ISLAMIA

TEMPORARY
INJUNCTIONS

Submitted By,
Jijo Raj P
B.A LL.B(IV Year)
Section: B
Roll No: 18

Page | 1
 ACKNOWLEDGEMENT

First and foremost, I would like to thank our subject teacher Madhu Saini, for the
valuable guidance and advice. She inspired us greatly to work on this interesting
assignment. Her willingness to motivate us contributed tremendously to our
assignment. Besides, I would like to thank the faculty staff for providing us with a
good environment and facilities for completing this assignment. In addition, I would
also like to thank my seniors who provided me with the valuable information acting
as a source of guidance in making the assignment. Finally, an honorable mention
goes to my family and friends for their understandings and supports in completing
this assignment. Without the help of the particulars mentioned above, making of this
assignment would not have been possible.

Page | 2
 INTRODUCTION

The meaning of interim is basically something which is temporary or for the time being. While the
term order has been defined under Section 2(14) of the Code of Civil Procedure, 1908 which means
the formal expression of any decision of a civil court which is not a decree. Therefore, interlocutory
or interim orders may be defined as those orders which are passed by the court during pendency
of the suits. Interlocutory order is another word for interim orders.

The court may pass interim orders in form of commissions and letter of requests which are also
called incidental proceedings, arrest and attachment before judgement, temporary injunctions,
interim sale of movable property, detention, preservation, inspection of suit property, putting a
party in immediate possession of land or tenure, deposit of money in court, appointment of
Receiver, deposit of claim amount by defendant and security for costs.

An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a defendant for that purpose,
forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is
threatening or attempting to commit, or restraining him in the continuance thereof, such act being
unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an
action fit law.

Temporary Injunction 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.

Page | 3
Interim is basically something which is temporary or for the time being. While the term order has
been defined under Section 2(14) of the Code of Civil Procedure, 1908 which means the formal
expression of any decision of a civil court which is not a decree. Therefore, interlocutory or interim
orders may be defined as those orders which are passed by the court during pendency of the suits.
Interlocutory order is another word for interim orders.

Such interim or interlocutory orders are of temporary nature. These temporary orders are required
because it was felt by legislature that sometimes a court is required to grant such relief or pass such
order as may be necessary to be passed. Then court can pass these temporary or interim orders on
the pillars of justice and equity. At the same time, any abuse of process thereof, during the
pendency of a proceeding is also mitigated. The rights of parties are protected in the interval
between the commencement of the proceeding and final adjudication.

The court may pass interim orders in form of commissions and letter of requests which are also
called incidental proceedings, arrest and attachment before judgement, temporary injunctions,
interim sale of movable property, detention, preservation, inspection of suit property, putting a
party in immediate possession of land or tenure, deposit of money in court, appointment of
Receiver, deposit of claim amount by defendant and security for costs.

KINDS OF INTERIM ORDERS

Interim orders are necessary to deal with and protect rights of the parties in the interval between
the commencement of the proceedings and final adjudication. They enable the court to grant such
relief or to pass such orders as may be necessary, just or equitable. They also prevent any abuse of
process during the pendency of proceedings. Hence, interim or interlocutory proceedings play a
crucial role in the conduct of litigation between parties.

The interim orders under the Civil Procedure Code of 1908 may be summarized as under:

1. Payment in Court :- Order 24.

2. Security for Costs :- Order 25.
3. Commissions :- Order 26.

Page | 4
 4. Arrest before Judgement :- Order 38.
5. Attachment before Judgement :- Order 38.
6. Temporary Injunctions :- Order 39.
7. Interlocutory Orders :- Order 39.
8. Receiver :- Order 40.

INJUNCTION
An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a defendant for that purpose,
forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is
threatening or attempting to commit, or restraining him in the continuance thereof, such act being
unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an
action fit law.

The law of injunction has been provided for by the Specific Relief Act, 1963 and is also regulated
by the Code of Civil Procedure, 1908 in India.

OBJECT OF 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

LEGAL PROVISIONS

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.

KINDS OF INJUNCTIONS

Injunctions are mainly of two kinds. They are,

1. Temporary Injunction.
2. Perpetual Injunction.

Page | 5
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 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.

TEMPORARY INJUNCTION

Temporary Injunction 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.

If the defendants are creating third party interest or 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

Page | 6
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.

ORDER 39 RULE 1

Under Order 39 Rule 1, the Court has power to grant an Ex-parte temporary injunction. But the
same should be granted only under exceptional circumstances. The factors which should weigh
are as under-

(i) whether irreparable or serious mischief will ensue to the plaintiff,

(ii) whether refusal of ex-parte injunction would involve greater injustice than the grant of
it would involve,
(iii) the time at which the plaintiff first had notice of the act complained of,
(iv) whether the plaintiff had acquiesced for some time,
(v) whether the application is made in utmost good faith and
(vi) in any case, an ex-parte order even if granted must be for a limited period of time.

ORDER 39 RULE 2

Rule 2 of Order 39 enables the Court to grant temporary injunction to restrain the defendant from
committing the breach of contract or other injury of any kind. In a suit for Specific Performance,
the Court will decline to grant a temporary injunction if the plaint and affidavit filed by the parties
show on the face of them that the case is not one for a perpetual injunction or for specific
performance. No temporary injunction can be granted if final relief cannot be granted.

ORDER 39 RULE 3

Rule 3 of Order 39 confers on the Court a power to grant an ex-parte interim injunction and has
prescribed a particular procedure for passing of an injunction order without notice to the other
party, under exceptional circumstance. The Court must record reasons for passing such an order

Page | 7
that the object of granting injunction would be defeated by the delay. The requirement of giving
reasons as laid down in the proviso is mandatory.

ORDER 39 RULE 4

Rule 4 of Order 39 says that order for injunction can be discharged, varied or set aside by the Court
on application made thereto by any party dissatisfied with such order. The proviso speaks that if
in an application for temporary injunction or in any affidavit in support of it, a party has knowingly
made a false or misleading statement in relation to a material particular and the injunction was
granted without giving notice to the opposite party, the Court shall vacate the injunction unless for
reasons to be recorded it considers that it is not necessary to do so.

PRINCIPLES

The power to grant a temporary injunction is at the discretion of the court. The discretion however
should be used reasonably, judiciously and on sound legal principles. Injunctions should not be
lightly granted as it is 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.

While granting temporary injunction the tests be applied are,

(i) Whether the plaintiff has a prima facie case,

(ii) Whether the balance of convenience is in favour of plaintiff and
(iii) Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction
is disallowed.

The court while granting or refusing to grant 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

Page | 8
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:

(i) One who seeks equity must come with clean hands.
(ii) One who seeks equity must do equity.
(iii) 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 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.

THE OBJECT OF THE INTERLOCUTARY INJUNCTION

As per Rule 3 of Order XXXIX of the Civil Procedure.Code the power to grant an exparte interim
injunction in exceptional circumstances based on sound judicial discretion to protect the plaintiff
from apprehended injury may be granted. As per Rule 3A of Order XXXIX of Civil Procedure
Code where an injunction has been granted without giving notice to the opposite party, the Court
shall make an endeavor to finally dispose of the application within 30 days from the date on which
the injunction was granted and where it is unable so to do, it shall record its reasons for such
inability.

BASIC INGREDIENTS

It is well settled that in granting or refusing to grant temporary injunction, the Court has very wide
discretion. The exercise of the discretion should be in a judicial manner, depending upon the

Page | 9
circumstances of each case. No hard and fast rule can be laid down for the guidance of the Court
to that effect. It is well settled that while 85 granting injunction plaintiff must show the following.

(i) existence of prima facie case,

(ii) balance of convenience and
(iii) the injury must be of an irreparable loss that cannot be compensated in terms of money.

PRIMA FACIE CASE

The first rule is that 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 bonafide dispute raised by the applicant, that
there is a strong case for trial which needs investigation and a decision on merits and on the facts
before the court there is a probability of the applicant being entitled to the relief claimed by him.
The existence of a prima facie right and infraction of such right is a condition precedent for grant
of temporary injunction. The burden is on the plaintiff to satisfy the court by leading evidence or
otherwise that he has a prima facie case in his favour.

Prima facie case, however, should not be confused with a case proved to the hilt. It is no part of
the court's function at that stage to try to resolve a conflict of evidence nor to decide complicated
questions of fact and of law which call for detailed arguments and mature considerations. These
are matters to be dealt with at the trial. In other word, the court should not examine the merits of
the case closely at that stage because it is not expected to decide the suit finally. In deciding a
prima facie case, the court is to be guided by the plaintiff's case as revealed in the plaint, affidavits
or other materials produced by him.

The plaintiff should come before the Court with clean hands. If he suppresses material facts,
documents then he is not entitled for the relief of injunction and further points of balance of
convenience, irreparable injury even not required to be considered in such case.

IRREPARABLE INJURY

The existence of the prima faice case alone does not entitle the applicant for a temporary
injunction. The applicant must further satisfy the court about the second condition by showing
that he will suffer irreparable injury if the injunction as prayed is not granted, and that there is no

Page | 10
other remedy open to him by which he can protect himself from the consequences of apprehended
injury. In other words, the court must be satisfied that refusal to grant injunction would result in
'irreparable injury' to the party seeking relief and he needs to be protected from the consequences
of apprehended injury. Granting of injunction is an equitable relief and such a power can be
exercised when judicial intervention is absolutely necessary to protect rights and interests of the
applicant. The expression irreparable injury however does not mean that there should be no
possibility of repairing the injury. It only means that the injury must be a material one, i.e. which
cannot be adequately compensated by damages. An injury will be regarded as irreparable where
there exists no certain pecuniary standard for measuring damages.

BALANCE OF CONVENIENCE

The third condition for granting interim injunction is that the balance of convenience must be in
favour of the applicant. In other words, 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.

OTHER FACTORS

There are some other factors which must be considered by court while granting injunction. The
relief of injunction may be refused on the ground of delay, laches or acquiescence or whether the
applicant has not come with the clean hands or has suppressed material facts, or where monetary
compensation is adequate relief.

As per amended Sec.9-A (2) of the C.P.C. The Court is empowered to grant such interim relief as
it may consider necessary, pending determination by it of the preliminary issue as to the
jurisdiction.

INHERENT POWER OF COURT AND TEMPORARY INJUNCTION

Page | 11
There was a conflict of Judicial opinion on the question whether the Court could issue a temporary
injunction U/s.151 of Civil Procedure Code when the case did not fall within the term of Order
XXXIX Rule 1 and 2 of Civil Procedure Code.

However now that point is concluded by the Hon'ble Apex Court in the case of 'Manmohanlal
Vrs. Seth Hiralal' (A.I.R.1962 Supreme Court 527) by observing that the Court has powers under
section 151 of Civil Procedure Code to issue an injunction in cases not falling within Order
XXXIX Rule 1 and 2; however that discretion should be exercised judiciously. For the purpose
of implementation of an injunction order Police protection can be ordered U/s.151 of Civil
Procedure Code. However, the Court shall not order for Police protection on the basis of an ad-
interim ex-parte order and only final order under Order XXXIX Rule 1, 2 can be enforced with
police assistance. An order granting Police aid without giving a chance to the defendant to submit
his objections is not proper.

Page | 12
 CONCLUSION

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.

Page | 13