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Historical Development of Law Of Injunction

The equitable remedy of Injunction bears such a marked resemblance to certain forms of the interdicts, which were granted by the Praetors under the Roman Law, that it has been said by some authors to have had its origin in the Roman Law. "Interdicts were certain forms of words by which the praetor either commanded or prohibited something to be done: and they were chiefly used in controversies respecting possession or quasi Possession."
  1. The form of the Interdict was usually:
    I Forbid you to use violence, you must produce, you must restore." -- " Vim fieri veto, exhibeas, restituas."

    The Writ was, therefore, used In three distinct forms or senses- prohibitory, restitutory and exhibitory. The prohibitory form was the one which it is said resembles most clearly the Injunction which is in use in Courts of Equity to day. As may be seen from the definition of interdicts given above, its Office was, like the injunction, either to restrain the undue exercise of some private right, to prevent the doing of threatened wrongs, or to secure the enjoyment of property rights. Probably, more correctly, however, the Injunction may be said to have had its origin with the origin and establishment of the Court of Chancery in England.

    The Court of Chancery has been said to have its origin, and, in all probability it did in the decree of Edward III. After the creation of the Courts of Common Law, there was still left in the King a reserve power to hear petitions of his subjects, when, because of the restricted jurisdiction and intricate and set forms of procedure in those Courts, they were unable to obtain relief in the Courts of Common Law he was at liberty to appeal to the King.

    These were termed matters of grace. Appeals of this sort becoming so numerous during the reign of Edward III, an order was made by the King referring all these matters to the Chancellor, who was one o f the Officers of the Select Council of the King, and who was called "Keeper of the King's Conscience". During the reign of Richard III a statute was passed, which had in view the regulating of the business of the Court. During the reign of' Edward IV, however, the jurisdiction of the Court became firmly established. The Injunction has been called by one author, the "Strong arm" of the Courts of Equity.
  2. In the words of the same author it is a "Writ framed according to the circumstances of the case, commanding an act which the Court regards essential to Justice, or restraining an act, which it esteems contrary to equity and good conscience." Without the Injunction, Courts of equity would be without one of its strongest and most effectual remedies, without the means of enforcing its Judgments. The definition given in Bacon's abridgement is : "An injunction if a probhibitory writ, restraining a person from committing or doing a thing which appears to be against equity and conscience."

    Probably the first instance in which an injunction, was issued was during the reign of Henry I, when one was issued in the following form:
    Rex Anglorum Haimoi Dapifero et Haegoni de Rack, salutem. Prohibeo ne piscatorespescant in Tamesia, ante piscaturam de Rovecestra Pe Ninvera, et ai ulterius in-venientur piscantes, suit mihi forisfacti.
  3. The granting of injunction by Courts of Equity for many years, however, met with the most bitter opposition on the part of Judges of the Courts of Common Law. During the reigns of Richard II, Henry IV, Henry V and Henry VI, Petitions were presented to the King, by the House of Commons, complaining  that Courts of Chancery were encroaching or the jurisdiction of Courts of Common Law by the granting of subroenras and injunctions.

    This opposition was felt particularly during the reign of James I, during the pendency of the famous Earl of Oxford's Case, reported in White & Tudor' s Leading Cases in Equity at Page 643, when, upon the granting of an injunction by Lord Chancellor Ellesmere restraining an action which was being tried before Lord Chief Justice Coke, a bitter contest arose between these two learned jurists. The matter being at last referred to the King, he, upon the advice of counsel decided in favour of Chancellor Ellesmere, sustaining the jurisdiction of Courts of Chancery to grant injunctions in such cases.

During the reign of Henry VII, Articles of impeachment were preferred against Cardinal Wolsey for Judicial corruption and alleged misconduct in his Office of Chancellor. Among the Articles were the following:
"21st. Also the said Lord Cardinal hath granted many "Injunctions by Writ, and the parties never called there:
"unto, nor Bill put against them; and by reason thereof, "divers of your Subjects have been put from their lawful "possession of their lands and tenemants. And by such "means he hath brought the more party of the suitors of "this your Realm before himself, whereby, he and divers of "his servants 'have gotten much riches and your subjects "suffered great wrongs.

"26th. Also when matters have been near at Judgment "by Process at your Common law, the same Lord Cardinal "hath not only sent Injunction to the parties but also "sent for your Judges, and expressly by threats, commanding then to defer the judgment, to the evident subversion "of your Laws, If the Judges would so have ceased."

Courts of equity having become firmly established the remedy of injunction was applied by such Courts, not without great opposition, at first, on the part of Judges of the Courts of Common Law, in all cases where, in equity and good conscience the parties were entitled to such relief, and where the Courts of Common Law were unable to grant adequate relief, subject, of course, to certain rules of Court, some of which will be dwelt on more at length later. From the aforesaid historical background it is manifest that the origin of the power to grant injunction is from equity, hence the exercise of the discretion by the Courts is to be governed mainly by equitable considerations.

The law of injunction in India is having its origin in the Equity Jurisprudence inherited from England who borrowed it from Roman Law. It is basic principle of our law that if there is a right there should be a remedy. An injunction is a Judicial Remedy prohibiting persons from doing a specified act called a restrictive injunction or commanding them to undo some wrong or injury called a mandatory injunction and may be either temporary, interim or interlocutory or permanent.

Relief of injunction cannot be claimed as of right. It is discretionary, equitable relief. The relief of injunction must be granted where it is absolutely necessary. It may be granted where it would help in preservation of peace and public order. Where there is possibility of breach of peace of public order, the Court ought to proceed with caution. An injunction is a remedy against an individual and should be issued only in respect of acts done by him against whom it is sought to be enforced.

An Injunction is a Judicial process, whereby, a party is required to do, or to refrain from doing, any particular act. It is a remedy in the form of an Order of the Court addressed to a particular person that either prohibits him from doing a continuing to do a particular act (Prohibitory injunction); or orders him to carry out a certain act (Mandatory Injunction.)

An injunction is defined in Halsbury's Laws as:
A Judicial process, whereby, a party is ordered to refrain from doing or to do a particular act or thing.

Oxford dictionary meaning of word Injunction is:
A Judicial warning or a Judicial order restraining a person from an action or compelling a person to carry out a certain act.

In India, the remedy of injunction is provided as a statutory relief in the Specific Relief Act, 1963 and the Civil Procedure Code, 1908. They are broadly categorized as temporary or permanent Injunctions. Interim injunctions are ancillary to the main relief which the Plaintiff will be entitled to if he is successful in establishing a prima facie case and balance of convenience, and also if the Court finds that the Plaintiff will suffer irreparable loss and injury.

The nature of a temporary injunction is protective with the objective of preventing any future possible injury and to maintain status quo until final adjudication. A permanent injunction, as the name suggests, continues forever under which the Defendant is perpetually enjoined from the assertion of a right or from committing an act injurious to the rights of the Plaintiff. It can be granted only after deciding the case on merits at the conclusion of the trial after hearing both the parties to the suit.

Once a permanent injunction is granted, the temporary injunction ceases to exist separately and may merge into the decree of permanent injunction.

The objects of granting permanent injunction include:

  • Preventing continuous injury and violation of legal right of Plaintiff;
  • Curtailing multiplicity of Judicial proceedings due to continuous violation;
  • Providing equitable and complete relief to Plaintiff where damages do not solely suffice;
  • Preventing breach of an express or implied legal obligation existing in favour of Defendant.
Therefore, the remedy of injunction is provided to achieve maximum efficiency in rendering judicial decisions such that their practical application does not become ineffective.
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, 1908 whereas, temporary and perpetual injunctions are prescribed by Sections 36 to 42 of the Specific Relief Act, 1963.

It has been termed as a preventive relief which is granted at the discretion of the Court by injunction which may be temporary or perpetual. Section 37 (1) of the Specific Relief Act, 1963 deals with the temporary injunctions which are such as are to continue until a specified time, or until further orders of the Court, and they may be granted at any stage of the suit or proceedings and are regulated by the Code of Civil Procedure, 1908.

From the aforesaid it is clear that there can be permanent injunction which is granted as a final relief in the suit and there can be temporary injunction which may be passed at any situation of the suit or proceedings for preservation of the property. Both have to be discussed separately.

Permanent Injunction

As is clear from Section 37 (2) of Specific Relief Act, 1963, a perpetual injunction can only be granted by the decree made at the hearing and upon the merit of the suit. The defendant is, thereby, perpetually enjoined from the assertion of a right or from the commission of an - act which would be contrary to the right of the Plaintiff. Section 38 of the Act further provides the circumstances where the perpetual injunction may be granted in favour of the Plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

In contractual matters when such obligation arises, the Court has to seek guidance by the rules and provisions contained in Chapter II of the Act dealing with specific performance of contracts. Sub- Section (3) of Section 38 in clauses (a), (b), (c) and (d) further illustrates the circumstances where a perpetual injunction may be granted by the Court.

The mandatory injunctions are contemplated under Section 39 of the Act where it is necessary to prevent the breach of an obligation and the erring party may be compelled to perform certain acts. Section 40 provides for granting damages in lieu of or in addition to injunction. Section 41 provides circumstances where the injunction should be refused. Section 42 provides for grant of injunction to perform a negative agreement.

It was made clear at the beginning that the Law of Injunction is vast and expansive jurisdiction and it forcefully illustrates the power of equity in spite of the fetters of codification to march with the times and adjust the beneficial remedies to altered social conditions and the progressive needs of the humanity. The first Specific Relief Act was codified in the year 1877 which was replaced by the Specific Relief Act of 1963 (Act No.47 of 1963).

In spite of the codification the law of injunction continued to expand and it fulfilled the needs of the society in different shapes - and forms. The codification of the law has never proved a fetter. In this context, a Civil Court should never have any hesitation in granting injunction to new circumstances and situations. Our society is a progressive society, our country is a developing country and with the growth of the industry one may be called upon to administer law of injunction to various kinds of new situations which were wholly unknown to this field earlier.

The essential test should, however, remain equity. In this context the views expressed by the Courts and Jurists may be gainfully quoted here : "It is the duty of a Court of Equity," said Lord Cot ten hem in Taylor Vs Selmon, (and the same is true of all Courts and institutions), "to adopt its practice and course of proceedings, as far as possible, to the existing state of society and to apply its jurisdiction to all those new cases which from the progress daily made in the affairs of men must continually arise and not from too strict an adherence to forms and rules established under very different circumstances decline to administer justice and to enforce rights for which there is no other remedy."

Similarly, the view expressed by the great Jurist Shri Banerjee in Tagore Law Lectures as far back as in 1906 may be remembered by us as a good guide even today in this field of law. Banerjee said:
Since an obligation includes every duty enforceable by law this form of specific relief, it would appear, is applicable to all cases where one person can enforce a duty against another, or to use the correlative term, where one person is vested with a right which empowers him to constrain the other to adopt a particular line of conduct, or to do or abstain from doing a particular act.

This right mayor may not arise out of a contract, and the remedy of injunction, by which preventive relief is granted by a Court, may be held to be available throughout the whole range of the law, But the jurisdiction is carefully defined in Part III, Specific Relief Act, and to some extent circumscribed. It still remains, however, a vast and expansive jurisdiction, and forcibly illustrates the power of equity, in spite of the fetters of codification, to march with the times and adjust the beneficial remedies to altered social conditions and the progressive needs of humanity.

Mr. H. C. Joyce also in his Law of Injunctions has expressed identical views. He says:
As a remedy for preventing wrongs and preserving rights, the injunction has been regarded as more flexible and adjustable to circumstances than any other process known to law. The correctness of the estimate is seen in the readiness with which injunctions yield to the convenience of the parties, the case with which damages are substituted in their place when justice and public interest so require, the facility with which a preventive and a mandatory injunction are made to co-operate so that by single exercise of equitable power an injury is both restrained and repaired, and the facility with which injunctive relief can be applied to new conditions and adjusted to the changing emergencies of modern enterprise.

In this connection it may be declared that as writ of injunction may be said to be a process capable of more modification than any other in the law, it is so malleable that it may be moulded to suit the various circumstances and occasions presented to a Court of Equity. It is an instrument in its hands capable of various applications for the purpose of dispensing complete justice between the parties.

It may be special, preliminary, temporary or contracted, in short it is adopted, and is used by Courts of Equity, as a process for preventing wrong between, and preserving the rights of parties in controversy between, where, too, if a party cannot at once comply with an injunction without being put to great expense or grievous annoyance, the Court may order that the injunction do not commence until after a certain stated period. Injunction should not be denied on the ground of its novelty in application, if the exigencies of the situation required it and if it does not militate against statutory provision. The Courts should act according to justice, equity and good conscience, when there is no specific rule applicable to the circumstance of the case."

Temporary Injunction

So far as the grant of temporary injunctions Is concerned, it used to be a small step during the progress of the suit or proceeding towards the preservation of its subject matter which could be property or any other right has now gained enormous importance and sometimes it becomes even more important than the final result of the suit or proceedings with the change of the time.

The society in general and Judiciary in particular is passing through a very trying time where the moral values are at their lowest ebb and there does not appear any prospect of coming them up in near future. The dilemma of the Judicial Court or Tribunal is that initially it has to treat the truth and falsehood at par and has to give the same treatment, protection and hearing until it concludes its investigation to find out which is right or wrong, false or true.

This process takes a long time during which by some interim measure the subject matter of the dispute between the parties has to be preserved, and it is this anxiety for preservation of the property on the part of the Judicial Court, which is misused and abused by the side which has come before the Court with a wrong or false case or a doubtful case which had been filed only to take a chance.

This category of the unscrupulous litigant once succeeds in obtaining the interim injunction in their favour, they try to prolong proceedings and cause irreparable damage and harm not only to their opposite side but also to the reputation and faith of the public on Courts. Hence, it is high time that the Courts at all levels should be very cautious, alert and vigilant while granting temporary injunction during progress of the suit or proceeding.

Section 37 (1) of the Specific Relief Act, 1963, deals with the temporary injunctions which are such as are to continue until a specified time or until further orders of the Court and they may be granted at any stage of the suit or proceedings and are regulated by the Code of Civil Procedure, 1908. Section 94 (c) and (e) of Code of Civil Procedure, 1908 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 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 falls and it appears to the Court that there was no reasonable or probable ground for instituting the same.

The 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. Further a proviso was added in Rule 3 which provided that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by the delay and require the applicant to serve the copy of the order of injunction along with copy of the application, affidavit, plaint and other documents relied on by him.

Further, he has also been required to file on the same day on which the injunction is granted, an affidavit stating that the requirements contained in Proviso (a) have been complied with. Rule 3 (e) further contains a very important provision which requires the Court to make an endeavour to finally dispose of the application within 30 days from the date on which the Injunction was granted and where it is unable to do so it shall record its reasons for such inability.

Thus by introducing the aforesaid amendment an attempt was made to minimise the hardship and harassment caused by the injunction orders passed ex-parte. Identical provisions were included in Article 226 of the Constitution of India by substituting Clause (3) thereof which provides that if an interim order is passed ex-parte and the party concerned makes an application to the High Court for vacation of such order, the High Court has to dispose of the application within a period of two weeks and if the application is not so disposed of, the interim order, on the expiry of that period shall stand vacated.

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 he 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, 1963. It is well settled that no interim injunction would be issued if final relief cannot be granted.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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