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Statutory Interpretation Of Injunction Procedures

This article paper is an attempt to elucidate certain intricate provisions relating to the law of injunctions, both temporary and permanent in India. In layman's terms, injunctions are orders of courts by which a party to an action is required to do or refrain from acting in a particular manner. In the former case it is called a restrictive or prohibitory injunction and in the latter case a mandatory injunction.

Through different case laws, the three essentials that must be shown to get an injunctive order, namely the existence of a prima facie case in favour of the plaintiff, the balance of convenience being in the grant of such injunction and the plaintiff to suffer an irreparable loss in case the injunction is not granted in his favour, are interpreted. It also discusses how in some cases courts have used post decree interlocutory order can be as a preventive measure to protect the rights of the parties and meet the ends of justice. 

The objective of the interim order is to protect rights of the parties during the pendency of litigation and are granted before commencement of proceedings, not being a final resolution to the matter in dispute. Interim orders, as their name suggests, can be granted at all stages of a proceeding, even after the final judgmen being orders of freezing injunctions which are passed after the final judgment for its enforcement[ Adrian Zuckerman, Zuckerman on Civil Procedure- Principles of Practice, 3rd Ed (2013) Thomson Reuters (Legal) Limited, Page 393.].

Injunction, as a remedy originated in the English courts of equity, thereby making it an equitable remedy[ 456 U.S. 305, 311 (1982)]. An injunction is basically a legal remedy, where the courts directs a party to do or refrain from doing a specific act.[ 134 S.Ct. 2806, 2810-11 (2014)]

While employing the extraordinary remedy of injunction, the court directs the conduct of a party, and it does so with the backing of its full coercive powers.[ 556 U.S. 418, 428 (2009)] In India, Part III of the Specific Relief Act of 1963 deals with the types of injunctions. As per Section 36, granting preventive relief as injunction is the discretion of the court and such relief can be either temporary or in perpetuity. The literal interpretation of this section suggests that such injunctions are preventive i.e negative in nature, as opposed to mandatory or affirmative injunctions.

Section 37 deals with the two types of injunctions based on their time of validity. Temporary injunctions are valid for a fixed period of time i.e for a specific duration  or from the date of order till further order of the court. Various provisions of the Code of Civil Procedure of 1908 regulate them, mainly Order XXXIX.

In the Agricultural Produce Market Committee Case[ AIR 1997 SC 2674], the Hon'ble Apex Court has held that if a party seeking injunction has a concluded right, only then a temporary relif can be granted and is capable of being enforced by way of injunction. The primary purpose of temporary injunction, also called interim or interlocutory injunctions is to preserve the status quo of the corpus of the property in dispute until court has adjudicated and acertained the respective rights and liabilities of the parties. Another reason behind granting of temporary injunctions might be to deter the defendant who threatens the plaintiff to dispossess the plaintiff or cause any injury to the plaintiff concerning the subject-matter in dispute.

A perpetual injunction, however, can only be granted after the final disposition of a case made by a decree made after the hearing of the case, based on the merits of the suit. The defendant is thereby perpetually forbidded from the assertion of a right, or from the commission of an act, contrary to the rights of the plaintiff in temporary injunction as per Section 37.

Order XXXIX Rules 1 & 2, Civil Procedure Code of 1908 deal with various circumstances where Courts can grant temporary injunction pending disposal of the suit. One of such circumstances is causing injury by the defendant to the plaintiff of any kind including injury in relation to property involved in the suit. In order to overcome such injury when plaintiff files the suit, he may simultaneously seek redress, by way of temporary injunction, for protection till the suit is finally adjudicated upon. Such temporary injunction, which the plaintiff seeks, may be of prohibitory character or of mandatory character.

In the case of M. Gurudas and Ors. Vs. Rasaranjan and Ors.[ AIR 2006 SC 3275], Supreme Court of India has stated that while passing an application for injunction, three principles, i.e. regard to prima facie, balance of convenience and irreparable injury are to be considered. The courts practice their discretionary jurisdiction while adjudicating the grant or refusal of an injunction, circumventing the boundary drawn from Sections 37 to 42 of the Specific Relief Act. The literal meaning of the Latin term prima facie is “on the face of it”.

In the case of Martin Burn Ltd. V. R.N. Banerjee 1958 AIR 79, 1958 SCR 514 while explaining the meaning of a 'prima facie' case, it was held by the Supreme Court that the burden of proof to satisfy the court that he has a prima facie case in his favour by leading evidence or otherwise lies on the plaintiff. Therefore, though prima facie case is a must to be eligible to obtain a temporary injunction, it is not sufficient.

Temporary injunction cannot be granted if the damage that will be caused otherwise is not irreparable.[ (2012) 6 SCC 792] Irreparable injury refers to such an injury which cannot be adequately remedied by way of compensation or damages. By inadequate remedy, it is interpreted that the damages or compensation that will ultimately be payable to the plaintiff if he wins the case would not place him in the position in which he was before injunction was refused.[ (1974) 40 Cut LT 336]

 In the case of Anwar Elahi V. Vinod Misra And Anr.[ 1995 IVAD Delhi 576], the court explained about the third principle of balance of convenience as that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it.

In the case of American Cyanamid Co. v. Ethicon Ltd.[ 1975 AC 396: (1975) 2 WLR 316], Lord Diplock opined that the main object of an interlocutory injunction is to protect the plaintiff against any injury by violation of his right for which he could not be adequately compensated in damages recoverable if the decision of the court is in his favour at the end of the trial.

But the plaintiff's need for such protection must also be weighed against the need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must first weigh one need against the other and thereafter determine where the balance of convenience lied.

Section 39 of the Specific Relief Act deals with mandatory injunctions. The two important elements to be taken into consideration to determine the grant of mandatory injunction are that it is necessary in order to prevent a breach of the obligation and the requisite acts must be such a character that the court is capable of enforcing it.

As aforementioned, law is well settled that prima-facie case, balance of convenience and irreparable injury are the three golden principles to be examined while dealing with a prayer of temporary injunction of prohibitory character. Unlike prohibitory injunctions, mandatory involves affirmative actions. For granting of temporary injunction of mandatory character certain other requisites are necessary.

Certain situations emerge where the granting of an interim relief would be equivalent to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself because by the time the main matter comes up for hearing, there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour.

In such cases the availability of a very strong prima facie case, of a standard much higher than just prima facie case, the consideration of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional case.

The Court would grant such an interim relief only if it is completely satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court wouldn't be able to vindicate the cause of justice. Obviously such cases would be very rare and also accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship.

The conduct of the parties shall also have to be seen and the parties may be put on such terms as that Court thinks prudent.[ 2004(1) OLR(SC) 632] So clarifying, the Supreme Court set aside the negative order of the High Court and directed for announcement of the result of election declaring the petitioner as the elected Chairman of Board of Directors of a Co-operative Society, even though the validity of such election was in issue in the pending proceeding.

In the case of Deoraj V. State of Maharastra, [ (2004) 4 SCC 697] while granting mandatory temporary relief the Supreme Court analysed the facts of the case and found that there was only one nomination filed which was found to be in order and had not been withdrawn.

Though the time given for filing nomination, scrutiny and withdrawal was over, there was no contest. Nothing was done at the meeting of the Committee which was to be convened only for the purpose of declaring the result. There was no voting. Holding of a meeting was only for the purpose of performing the formality of declaring the appellant as elected.

The provision as to quorum lost its significance and the election was for a period of one year out of which a little less than half of the time had already elapsed and in absence of interim relief being granted to him there was nothing which would survive for being given to him by way of relief at the end of the final hearing. This fully satisfied the court that a full proof case for the grant of interim relief could be made out in favour of petitioner.

This is a glaring example and also a guide line for subordinate Courts showing how Judge's conscience should manifest in a manner in preventing perpetuation of injustice even when the whole matter is sub judice.In a case, a member of an undivided family sold his undivided share in the family dwelling house to a stranger. Purchaser and the vendor also allowed the vendee to take over possession of a part of the said house which was earlier in his separate possession by way of mutual convenience.

Sec. 44 of the Transfer of Property Act, 1882 did not permit such purchaser any kind of possession of the dwelling house. He could, at the best, sue for partition of the same. In that event any other member of the family could claim pre-emptory right in the sold-share of the dwelling house if the stranger-purchaser would have sued for partition as is envisaged in Sec. 4 of the Partition Act.

In such premises, when a suit was filed by another member of the family against the stranger-purchaser for eviction from the taken over portion of the dwelling house, the Supreme Court granted mandatory temporary injunction Under Order XXXIX Rules 1 & 2 of C.P.C. directing eviction of the stranger-purchaser from the suit housepending disposal of the suit. Though this interim relief virtually amounted to granting final relief sought for in the suit, Judge's conscience persuaded for granting of such a relief[ AIR 1990 S.C. 867].

The purpose behind granting such relief, as has been said by the Supreme Court in another case[ 1990(2) S.C.C. 117], is to preserve or restore the status-quo of the last non-contested stage which preceded the pending controversy, if justice demanded so. Such a view in reiterated in another case also [ Vol. 91 C.L.T. 319]. When a common passage is obstructed by the defendant and the plaintiff sues for removal of such obstruction, Court generally passes mandatory interim injunction against the defendant directing him for removal of the obstruction pending final disposal of the suit, provided Court is prima facie satisfied about existence of such a common passage.[ 2002(1) CJD-S.N. 18, 2002(2) CJD-NOC. 6]

When plaintiff has raised substantial construction of a structure and is then resisted by the defendant from further proceeding with the construction work, Court generally passes temporary injunction against the defendant not to so resist the construction work, though by such order the plaintiff gets an opportunity of completing the disputed structure before his right of making such construction is finally decided in the suit. But while passing such interim relief to the plaintiff Court generally takes an undertaking from him not to claim equity for such construction if the result of the suit goes against him.

The same proposition also applies in a suit filed by the plaintiff against construction being raised by the defendant[ Vol. 90 C.L.T. 294, 2002 (Supl) OLR 732, 2005(Supl) OLR 865]. Thus, from the forgoing narration of different cases it is manifest that Court can grant interlocutory relief in the mandatory form. But in doing so Court should act with greatest circumspection and such powers should be exercised in rare and exceptional cases keeping in view the guide lines formulated by the Supreme Court referred to above.[ 2011(2) CCC (SC) 198]

Post Decree Interlocutory Order As a Preventive Measure: After a suit is decreed or dismissed, all interlocutory orders, if any, lose their efficacy. Such a situation may put the aggrieved party in instant jeopardy, which he cannot get immediately remedied by approaching the appellate Court, because for filing the appeal after obtaining certified copies of the judgement and the prepared decree and then approaching the appellate Court for interim protective measures a reasonable time would be required. Demolition of the disputed standing structure, withdrawal of the disputed money from the bank etc. are some such situations.

Question arises as to what the aggrieved party would do in the meantime as protective measure. There is no express provision in the Civil Procedure Code in this regard. However, Sec. 151, C.P.C. gives enormous power to Court to pass any order in the interest of justice. This position of law has been well explained by the Supreme Court in a land mark judgement[ A.I.R 1962 S.C. 527]. Where there is no specific provision, Court can resort to its inherent power and pass necessary orders to protect justice.

Applying this proposition, immediate application can be made by the aggrieved party in the very same Court, soon after it has pronounced its judgement, to pass necessary interim order as protective measure, in respect of the subject matter of the disposed of suit, till appellate Court is moved for such kind of interlocutory order after filing of the intended appeal.

In such eventually the Court, disposing of the suit, has the jurisdiction to later pass such order the very day, if it is satisfied that absence of such instant order would frustrate the appeal itself, even if it is filed, and interest of justice demands for passing such order as protective measure for a reasonable duration. The only other condition precedent is that the applying party must have a right of appeal against the decree.

This view gets impliedly supported by the decision of the Orissa High Court.[ Vol. 29 C.L.T. 554, A.I.R. 1964 Orissa 72] It is not correct to say that after pronouncement of judgement the Court becomes functus officio and it cannot pass any kind of order thereafter.

Courts are empowered to review their judgments u/s 114 C.P.C. and / or correct their judgements and decrees u/s 152 C.P.C, both after pronouncement of judgements. It would be fallacious to argue that for such review or correction express provisions are there in the Code.

Express provisions are not the only provisions for the Court to act upon. No legislative enactment dealing with procedural law, however exhaustive it may be, can foresee all exigencies xx and the Court may be called upon, where circumstances require, to exercise such powers as may be necessary[ Vol. 31 C.L.T. 789].

That is why, even after pronouncement of judgement, the Court can recall the same u/s 151 C.P.C., if situation so warrants, as there is no express provision for such recall[ AIR 2000 S.C. 1165 & AIR 1999 SC 2089]. Thus, Court can take the aid of its inherent power, recognised in Sec. 151, C.P.C., to act upon in the ends of justice where express provision is wanting in the Code.

Another similar situation can also be visualised. During pendency of a suit interlocutory order of temporary injunction against the defendant was passed. Thereafter the suit was dismissed for default. After such dismissal of the suit the interlocutory order automatically got vacated. Plaintiff, thereafter, filed petition for restoration of the suit.

During pendency of the restoration proceeding Court can pass another similar interlocutory order in respect of the subject matter of the suit, even though the suit is not then alive, provided the Court is satisfied that absence of such an order would defeat the purpose of the suit even if it is later restored [ 2002 (1) OLR 419].

In other words, after a suit gets terminated, for any reason whatsoever, the Court has still the power to pass necessary order in the interest of justice,if situation so warrants. This proposition of law applies to the trying Court and the appellate Court as well[ 2013(II)CLR (SC) 361].

Award Winning Article Is Written By: Ms.Deepasha Rath

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