Introduction
An
injunction is an equitable remedy in the form of a court order that requires a
party to do, or to refrain from doing, certain acts. A party that fails to
comply with an injunction faces criminal or civil penalties and may have to pay
damages or accept sanctions. In some cases, breaches of injunctions are
considered serious criminal offenses that merit arrest and possible prison
sentences.
Emergency
injunctions that are in effect only a short time are called temporary restraining
orders. Courts can also issue preliminary injunctions to take effect
immediately and effective until a decision is made on a permanent injunction,
which can stay in effect indefinitely or until certain conditions are met. Every
court is constituted for the purpose of administering justice among particles
and there’re, must be deemed to possess all such powers as may be necessary to
do full and complete justices to the parties before it.
It
is a well settled principle of law that interim relief can always be granted in
the aid of and as ancillary to the main relief available to the party on final
determination of his rights in a suit or any other proceeding. Therefore, a
court undoubtedly possesses the power to grant interim relief during the
pendency of the suit. Temporary injunctions are thus injunctions issued during
the pendency of proceedings.
Definition
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 particular person that either prohibits him
from doing ‘or continuing to do a particular act (prohibitory injunction); or
orders him to carry out a certain act (mandatory injunction).
Object
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. In other words, the object of making an order regarding
interim relief is to evolve a workable formula to the extent called for by the
demands of the situation, keeping in mind the pros and cons of the matter and striking
a delicate balance between two conflicting interests, i.e., injury and
prejudice, likely to be caused to the plaintiff if the relief is refused; and
injury and prejudice likely to be caused to the defendant if the relief is
granted. The court in the exercise of sound judicial discretion can grant or
refuse to grant interim relief.
The
underlying object of granting temporary injunction is to maintain and preserve
status quo at the time of institution of the proceedings and to prevent any
change in it until the final determination of the suit. It is in the nature of
protective relief granted in favour of a party to prevent future possible
injury.
The
need for such protection, however, has to be judged against the corresponding
need of the defendant to be protected against injury resulting from exercising
his own legal rights. The court must weigh one need against another and
determine where the balance of convenience lies and may pass an appropriate
order in exercise of its discretionary power.
Kinds of Injunction &
Relevant Matter
Types
Injunctions
are of three kinds: (i) temporary; (ii) permanent and (iii) mendatory. A
permanent Injunction restrain a party forever from doing the specified act and
can be granted only on merits at the conclusion of the trial after hearing the
both party to the suit. It is governed by the Sections 52 to 57 of the Specific
Relief Act, 1877. A temporary or interim injunction on the other hand restrains
a party temporarily from doing the specified act and can be granted only until
the disposal of the suit or until the further order of the Court. Regulated by
the provision of the Order 39 of the Code of Civil Procedure, 1908 and may be
granted at any stage of the suit.
Injunctions
are also (i) preventive, prohibitive or restrictive, i.e. when they prevent,
prohibit or restrain someone from doing something; or (ii) mandatory, i.e. when
they compel, command or order some person to do something.
Perpetual Injunction
According
to Section 53 of the S.R Act, a perpetual injunction can only be granted by the
decree made at the hearing and upon the merits of the suit; the defendant is
hereby perpetually enjoined from assertion of a right, or from the commission
of an act which would be contrary to the rights of the plaintiff.
Application of the
principles of perpetual injunction
Injunction
is a specific relief which is of two kinds – (i) perpetual injunction which is
dealt with in ss.54 to 57 of the Specific Relief Act and (ii) temporary
injunction dealt with under Or 39 of CPC. The principles governing the grant of
perpetual injunction are applicable in respect of passing of orders of
temporary injunctionand if in a suit a decree of perpetual injunction cannot be
granted, no temporary injunction should ordinarily be granted under this Order
in that suit.Thus where a building contractor whose services had been
terminated is not entitled to a decree of specific performance of his contract
of employment as it is one based on personal skill, no temporary injunction can
be issued in such a case. In view of the provision of s.56 (d) of the Specific
Relief Act, no injunction can be issued when it will have the effect of
interfering with the public duties of any department of the Government.5 An applicant will not be granted temporary
injunction if he has no personal interest in the matter as required by s.56 (k)
of the Specific Relief Act.However, the power of the court to grant temporary
injunction is not limited to cases where perpetual injunction can be granted.
On the other hand, the court will not issue temporary injunction merely because
ultimately a decree for perpetual injunction can be granted as for issue of
temporary injunction there is the further question of irreparable loss and balance
of convenience.
Perpetual Injunction when
granted
According
to Section 54 of the S.R. Act, subject to the other provisions contained in, or
referred to by this chapter, a perpetual injunction may be granted to prevent
the breach of obligation existing in favour of the applicant, whether expressly
or by implication.
Relevant case of this section-M/S. Hossain
Ahmed vs M/S HD Hossain & Brothers, 32 DLR
In
the absence of the above mentioned ground perpetual injunction will not be
granted.
Mandatory Injunction
According
to section 55 of the S. R. Act–when, to prevent the breach of an obligation, it
is necessary to compel the performance of certain acts which the court is
capable of enforcing, the court may in its discretion grant an injunction to
prevent the breach complained of, and also to compel the performance of the
requisite act.
Temporary Injunction
Every
court is constituted for the purpose of administering justice between the
parties and therefore, must be deemed to process all such powers as may be
necessary to do full and complete justice to the parties before it. It is a
well stated principle of law that an interim relief can always be granted in
the aid of and as ancillary to the main relief available to the party on final
determination of his rights in a suit or any other proceeding therefore, a
court undoubtedly processes the power to grant interim relief during the
pendency of the suit.
Case: State of Orissa vs.
Madan Gopal, AIR (1952)
An
injunction is a judicial process whereby a party is required to do or to
refrain from doing any particular act. Temporary injunction is mode of granting
preventive relief by the court at its discretion. A temporary injunction is
also known as interim injunction.
Definition of Temporary
Injunction
According
to order 39 of the CPC any order made temporarily prohibiting the
defendant not to alienate, or to change or to damage the property in dispute
during the pendency of the suit is called temporary injunction.
According
to section 53 of the S. R. Act, temporary injunctions are such as are to
continue until a specified time, or until the further order of the Court. They
may be granted at any period of a suit and are regulated by the Code of Civil
Procedure, 1908.
Thus
temporary injunction is regulated under the provisions of rules 1-5, order 39
of the Code of Civil Procedure, 1908.
Object of temporary
injunction
The
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
underlying object of granting temporary injunction is to maintain and preserve
status quo at the time of institution of the proceedings and to prevent any
change in it until the final determination of the suit.
When
and how a temporary injunction is granted
Grounds:
According
to Order 39 Rules 1& 2 of the CPC –
Temporary
injunction may be granted by the Court in the following cases-
1. where 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 or;
2. where the defendants threatens, or intends to
remove or dispose of his property with a view to defrauding his creditors; or
3. where the defendants threatens to dispossess the
plaintiff or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit; or
4. where the defendant is about to commit a breach
of contract, or other injury of any kind; or
5. where the court is of the opinion that the
interest of justice so requires.
Who may apply:
The
relief of temporary injunction is generally prayed for by the plaintiff. But in
an appropriate case the defendant may also pray for and obtain an order of
temporary injunction against the plaintiff. Thus in the plaintiffs suit for
specific performance of contract of a transfer, on the prayer of the defendant,
the plaintiff may be restrained from raising structure on the suit land by
temporary injunction. The defendant can apply for temporary injunction against
the plaintiff only if the relief claimed by the defendant arises out of the
plaintiff’s cause of action or is incidental thereto. Thus, injunction
restraining the plaintiff from parting with possession of vacant portion of the
disputed premises to the purchaser until the disposal of the appeal may be
granted.
It
is not the plaintiff alone who can apply for an interim injunction. A defendant
also may make an application for grant of an injunction against the plaintiff.
Against whom injunction may
be issued
An
injunction may be issued only against a party and not against a stranger or a
third party. It also cannot be issued against a court or judicial officer.
Normally, injunction can be granted against persons within the jurisdiction of
the court concerned.
Nature of the relief
The
relief of temporary injunction is an equitable relief and it is not granted
where the pan applying for temporary injunction does not come with clean hands.
A dishonest litigant loses his remedy when he is guilty of misrepresentation or
concealment of material facts. Temporary injunction shall not be granted in
favour of a person in unauthorised possession. But where the applicant has been
in possession of the property in suit for sometime and claims title on the
basis of some documents, the question whether he is a trespasser will be
decided at the trial.Injunction will not be granted in support of illegal or
unauthorized act. The court may also refuse temporary injunction on the ground
of delay, laches or acquiescence.
The
court is to take into consideration the effect of issuing temporary injunction
on
third
Thus where the plaintiff is a regular supplier of hospital goods to the
Government, but its registration was not renewed on account of failure of the
plaintiff to comply with certain formality as a result of which the Government
invited open tenders and tenders from certain other suppliers were offered and
the plaintiff filed a suit and obtained interim injunction restraining the
Government from accepting other tenders, the High Court set aside the order of
injunction holding that the interest of other suppliers who submitted tenders
for supplying goods cannot suffer for no fault of their own and by granting
injunction the court cannot put the other intending suppliers to great
inconvenience.
Discretion of the Court
According
to section 22 of S.R. Act, the jurisdiction to decree specific performance is
discretionary, and the Court is not bound to grant such relief merely because
it is lawful to do so; but the discretion of the Court is not arbitrary but
sound and reasonable, guided by judicial principles and capable of correction
by a Court of appeal.
The
grant of temporary injunction is discretionary with the court and a party
cannot get the relief as a matter of course. It shall not be granted merely
because it is lawful to do so. It is a power of extraordinary nature and the
court is to exercise the power with caution and great circumspection. Where the
trial court as also the appellate court did not grant injunction and in the
revision filed three months after the order of the appellate court the High
Court Division granted interim injunction ex pane the Appellate Division held
it to be not a proper exercise of the discretion. The court shall grant the
relief only when it is satisfied that the applicant will suffer irreparable
loss or injury if the other party is not restrained as prayed for. The court
should always be willing to extend its hands to protect a citizen who is being
wronged or is being deprived of any property without due course of law, but at
the same time the judicial proceedings cannot be used to protect or perpetuate
a wrong committed by a person who approaches the court. The same consideration
applies when the other party applies for vacating the interim relief granted by
the court.The discretion has to be exercised on sound judicial principles and
not arbitrarily. Where the court did not take into consideration material
points involved in a case, the discretion has not been properly exercised.The
appellate court’s interference with the exercise of such discretion is also
governed by equitable principles and the appellate court will not interfere
unless it is found that the trial court has exercised the discretion
arbitrarily or fancifully. Where temporary injunction was granted by the courts
below, the order cannot be disturbed in revision without taking into
consideration the findings of fact on the basis of which it was passed. Where
the appellate court set aside the order of the trial court omitting to consider
the material points, the trial court’s order was restored When on consideration
of the materials on record discretion was exercised in favour of granting
injunction, it was not interfered in revision and the Appellate Division
refused to grant leave. The Appellate Division is reluctant to interfere with
an interlocutory order passed by the courts below.
Grant of Injunction
Grant of injunction on
terms
The
court has power to impose reasonable terms as a condition when granting
injunction.’ Thus it may call upon the plaintiff to undertake that he will
abide by any order which the court may make as to damages. If the plaintiff is a
foreign firm and do not cam; on business in this country, the court may
reasonably put on terms.”
Against whom injunction can
be granted.
An
injunction can be issued only against party to the suit and not against a
stranger or against a court. In a proper case an injunction may be issued even
against a person outside the jurisdiction of the court. No injunction will
ordinarily be issued against government officer’s bona fide exercising rights
or alleged rights in the course of their duty, or against public bodies under
similar circumstances.
Against
whom an order of injunction is binding
Ordinarily,
an order of injunction binds the parties to the suit. It is also binding on the
agent or servant of the defendant.’ Persons who were not party to the suit nor
were named in the injunction order cannot be proceeded against for violation of
the order of injunction. But a person who is aware of an order of injunction is
bound to obey even though he was not a party to the suit when it affects the
result of the earlier order. Thus when the Appellate Division passed an order
for maintenance of status quo in respect of composition of the Board of
Directors of a bank and when a copy of the order was sent to Bangladesh Bank by
that bank, Bangladesh Bank was bound to honour the order of the Appellate
Division.
Principle of Granting
Injunction
Principles governing grant
of injunction
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.
Generally, before granting the injunction, the court must be satisfied about
the following aspect.
A
relief of temporary injunction cannot be granted just for the mere asking of it
after filing of a suit without adverting to the principles governing the grant
of temporary injunction. Before an order of temporary injunction may be passed,
the court must be satisfied that the applicant has a prima facie and arguable
case to go into trial that the applicant shall suffer irreparable injury or
loss unless the injunction is granted and that the balance of inconvenience is
in favour of the applicant. Where the applicant fails to make out a prima facie
case, the question of irreparable injury and balance of inconvenience does not
arise and non-consideration of the points of irreparable loss and balance of
inconvenience is not material.
In
the case of a temporary injunction, the applicant must show (a) a prima facie
case in support of the right claimed; (b) an actual or threatened violation of
that right; (c) productive of irreparable or at least serious damage; (d) his
conduct must be such as not to disentitle him to assistance but it should be
fair and honest and in particular there must be no acquiescence or delay; (e)
there must be a greater convenience in granting than refusing the injunction, and
(f) equally efficacious relief must not be obtainable by any other usual mode
or proceeding.
Prima facie case
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 neither 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. (Emphasis supplied) In other words, 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.
Explaining
the ambit and scope of the connotation “prima facie” case, in Martin Burn Ltd. v. Banerjee, the Supreme Court
observed, 42 DLR.
“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. While determining whether a prima facie case had been made out
the relevant consideration is whether on the evidence led it was possible to
arrive at the conclusion in question and not whether that was the only
conclusion which could be arrived at on that evidence. It may be that the
tribunal considering this question may itself have arrived at a different
conclusion. It has, however, not to substitute its own judgment for the
judgment in question. It has only got to consider whether the view taken is a
possible view on the evidence on the record.
In
order to get an order of temporary injunction, the applicant must make out a
prima facie case in support of the right claimed by him. The existence of a
prima facie right and infraction of such right is a condition precedent to the
grant of temporary injunction. The burden is on the applicant to satisfy the
court by leading evidence or otherwise that he has a prima facie case in his
favour. The case must be established with sufficient material or proved by
affidavit. The view that to establish a prima facie case it is not necessary to
file documents or papers and it can be spelt out in the plaint is not correct.
Where the impugned order of ad interim injunction does not show that there is a
prima facie case in favour of the plaintiffs, the order suffers from
non-application of judicial mind. In explaining what is meant by prima facie
case, the High Court Division observed that it is a well-established principle
of law that in order to get an order of temporary injunction, the plaintiff has
to show that he has a good prima facie case meaning thereby that a serious
question of law is to be tried in the suit. The court must be satisfied that
there is a bonafide dispute raised by the applicant, that here is a strong case
for trial which needs investigation and a decision on merits and that on the
facts before the court there is a probability of the applicant being entitled
to the relief claimed by him. A plaintiff in possession of the suit land has a
prima facie case for injunction and the validity of the claim of title will
have to be gone into in trial. Where license is cancelled without giving any
opportunity of hearing, a prima facie case is made out. A prima facie case
should not be confused with a case proved to the hilt. “Prima facie case is not
to be confused with prima facie title which has to be established on evidence
at the trial. A prima facie case alone is a substantial question raised, bona
fide, which needs investigation and a decision on merits.” It is no part of the
court’s function at that stage to try to resolve conflict of evidence, nor to
decide complicated question of fact and of law which called for detailed
arguments and mature consideration. These are matters to be dealt with at the
time of trial. The court is not required to enter into the merit of the case as
is necessary for passing a decree after hearing the evidence. The applicant has
to show that a fair and arguable case exists in his favour. While determining
whether a prima facie case had been made out, the relevant consideration is
whether on the evidence or materials brought before the court it is possible to
arrive at a conclusion in question and not whether that is the only conclusion
which could be arrived at on that evidence or materials.An applicant is not
required to make out a clear legal title, but to satisfy the court that he has
a fair question to raise as to the existence of the legal right which he sets
up, and that there are substantial grounds for doubting try existence of the
alleged legal right, the exercise of which he seeks to prevent. In Mizanur Rahman v. Serajuddin, 37 DLR the High Court Division observed that ordinarily
the acts which are sought to be restrained by injunction are those which are
prima facie illegal or with respect to the legality of which there appears to
be reasonable doubt in the mind of the court. The court further observed that
the right that the plaintiffs want to assert in support of their claim must be
a legal right and the injury that they allege must be a legal injury. However,
the Appellate Division observed that the expression ‘legal injury’ should be
avoided for a clearer expression; in order to get temporary injunction the
applicant must claim a legal right and allege an injury which is not ordinarily
reparable by monetary compensation. Plaintiffs who applied for lease of a
vested property cannot obtain temporary injunction to restrain lease of the
vested property to a third party. Temporary injunction or ad interim injunction
cannot be granted where the plaintiff has no subsisting interest in the suit
property. Where the lease for a short period expires, the lessee cannot have
any subsisting right in the suit property and have no prima facie case for
injunction. A plaintiff not being in possession for a long time or a plaintiff
claiming through a lease from Shebait who had no authority to lease out has no
prima facie case for injunction. Where a plaintiff seeks injunction restraining
dispossession, he must produce some evidence of possession by him.
Temporary
injunction cannot be granted when it would lead to interference with and
ultimately frustrate an order of the court passed under s.9 of the Specific
Relief Act.
Irreparable loss or 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.
In
the leading case of American Cyanamid Co. v.
Ethicon Ltd., 27 DLR the House of Lords has
rightly pronounced the principle thus:
“The
governing principle is that the court should first consider whether, if the
plaintiff were to succeed at the trial in establishing his right to a permanent
injunction, he would be adequately compensated by an award of damages for the
loss he would have sustained as a result of the defendant continuing to do what
was sought to be enjoined between the time of the application and the time of
the trial. If damages in the measure recoverable at common law would be
adequate remedy and the defendant would be in financial position to pay them,
no interlocutory injunction should normally be granted, however strong the
plaintiffs claim appeared to be at that stage. If, on the other hand, damages
would not provide an adequate remedy for the plaintiff in the event of his
succeeding at the trial, the court should then consider whether, on the
contrary hypothesis that the defendant were to succeed at the trial in
establishing his right to do that which was sought to be enjoined, he would be
adequately compensated under the plaintiff’s undertaking as to damages for the
loss he would have sustained by being prevented from doing so between the time
of the application and the time of the trial. If damages in the measure
recoverable under such an undertaking would be an adequate remedy and the
plaintiff would be in a financial position to pay them, there would be no
reason upon this ground to refuse an interlocutory injunction.”
An
applicant is not entitled to an order of temporary injunction merely by making
out a prima facie case. He must also show that he shall suffer irreparable loss
or injury not commensurable in monetary terms unless the other party is
restrained. The court must be satisfied that refusal to issue injunction would
result in an irreparable loss or injury and he needs be protected from the
consequence of the loss or injury. When a threatened injury is one of pecuniary
loss and may be compensated in monetary terms, the court will be slow to grant
temporary injunction. The expression ‘irreparable injury’ does not mean that there
should be no possibility of repairing the injury; it only means that the injury
must be a material one which cannot be adequately remedied or compensated by
damages. It does not mean an injury which is not physically capable of being
remedied but one which cannot adequately be remedied by damages. The applicant
is to show that the injury is such that the court would not be able to put him
status quo. Where damages can furnish adequate remedy, an injunction should be
refused.” In a suit for specific performance an order restraining alienation of
immovable property is unnecessary in view of the safeguard of s.52 of the
Transfer of Property Act, but an injunction may appropriately issue in such a
suit where it is shown that damages for breach of the contract would not be an
adequate remedy. Availability of adequate remedy in money terms is an
impediment in obtaining order of temporary injunction, but injunction against a
newspaper restraining it from publishing or continuing to publish defamation
cannot be refused on the ground that loss of reputation can be adequate
compensated by damages.
Balance of inconvenience
The
applicant must show a clear necessity for affording protection to his alleged
right, which would otherwise be seriously impaired. Before granting temporary
injunction, the court must also be satisfied that the balance of inconvenience
is in favour of the applicant. It means that the court is to 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 other party by granting it. Temporary
injunction likely to cause mischief cannot be granted when it is clear that
grant of temporary injunction will tell upon the internal management of an
educational institution. In matters of service the court has also to keep in
view the difficulties and problems that are likely to be created in the matter
of administration in a particular office or organisation before allowing the
prayer for temporary injunction. The court while exercising the discretion
should be guided by the sound judicial principles and should attempt to weigh
substantial mischief or injury likely to be caused to the applicant, if the
injunction is refused and compare it with that which is likely to be caused to
the opposite party if the injunction is granted. On weighing the conflicting
probabilities, the court will grant the relief if in its opinion the balance of
inconvenience is in favour of the applicant, e.g. if the mischief to the
applicant is greater than the mischief to the opposite party. The balance of
inconvenience rule has no place where the applicant’s right is doubtful or
where he can be compensated in money terms. No injunction will be issued when
on consideration of the balance of inconvenience it is found that it would be
oppressive to the defendant to issue the injunction. The principle of balance
of inconvenience applies when the scales are evenly balanced.
No
injunction should be granted which will interfere with development work with
aid. In a case where national interest outweighs personal interest/gain or
profit or in other words, where national loss because of an order of injunction
would outweigh the individual loss, the prayer for injunction is certainly
merit less.
Legal Ground for Granting
Injunction
When injunction cannot be
granted
When
the allegations made in the application are vague or indefinite, no injunction
can issue. Equally, no injunction should issue in respect of a property
description of which is vague and not specific. In order to get an order of
injunction, the property in dispute should be clearly identified with specific
area and demarcation. In a suit for declaration of title and partition, the
decree holder cannot be restrained by injunction; the proper course would be to
pray for stay of further proceedings if the decree is put into execution. No
injunction can be granted in matters covered by a provision made in a special
enactment.
Injunction
cannot be granted when it interferes with performance of public duties. As
earlier stated, temporary injunction is to be refused where no relief of
permanent injunction can be granted.Temporary injunction is not to be granted
when the order would be infructuous as the act sought to be restrained has
already been done.No injunction is to be passed when the suit is prima facie
barred by limitation as in such case the plaintiff cannot have a. prima facie
case. The jurisdiction of granting injunction being an equitable jurisdiction,
no injunction should be granted at the instance of the party who has not come
with clean hand. The power of granting injunction should not be exercised when
other equally efficacious remedy is available.
Injunction in suit barred
by res judicata
No
interim injunction can be granted when the suit is found prima facie barred by
res judicata. However, in some decisions contrary view was taken laying down
that at the interlocutory stage the court is only to consider whether triable
issues have been raised by the plaintiff and whether there are substantial
questions which need be investigated.It is submitted that where there is no
doubt about the application of res judicata it cannot be said that the
applicant has a prima facie case. On the other hand, when an applicant’s
possession had been found in a previous litigation, he may be entitled to an
order of injunction on the strength of the previous finding. Similarly, when in
a previous litigation A has been found to be the true owner of the disputed
property and not B, B cannot obtain an order temporary injunction against A. In
view of the earlier decision in writ petition that the plaintiff had no title,
his claim for temporary injunction in respect of the suit land is not maintainable.
Question of maintainability
of suit in an application for temporary injunction
It
has been held that the court is not required to look into maintainability of
suit at the time of hearing injunction matter; it is to be decided after filing
of the written statement and framing issue on the point. In another case, the
same view has been taken that maintainability of a suit should not be gone into
at the interlocutory stage particularly when there will be necessity of
evidence at the trial of the suit for correctly deciding the issue. It is
submitted that the principle is too broadly stated. It is true that the
question of maintainability will have to be deferred when further evidence is
required to decide the issue, but there may be cases where on the very face of
it the suit is not maintainable and there cannot be any question of issuing
temporary injunction. A plaintiff cannot have a prima facie case where the suit
is ex facie not maintainable.
Effect of admission
In
deciding an application for temporary injunction admission made by a party in
an earlier proceeding may be taken in its face value and if such admission
demolishes the case of the applicant, temporary injunction cannot be granted.
Where the plaintiff has on his own showing made a transfer of the land before
completion of his own settlement, he having parted with the land cannot get an
order of temporary injunction to protect his alleged possession.
Pro-habitation for Granting
Injunction
Situations in which
temporary injunction can be granted
An
order of temporary injunction under this Order can be granted where (i) the
property in dispute is in danger of being wasted, damaged, alienated or
wrongfully sold in execution of a decree, (ii) the defendant threatens or
intends to remove the property to defraud his creditors, (iii) the defendant is
about to commit a breach of contractor other injury of any kind ‘ or where the
court is of the opinion that the interest of justice so requires.
Property in dispute
The
property in respect of which an order of injunction can be passed must be the
property which is directly in dispute in the suit and no other property, nor
where the property in dispute is indirectly affected. In order to obtain an
order of injunction relating to an immovable property, it must be distinctively
specified so that it can be clearly identified. To obtain injunction the
applicant must have subsisting interest in the property in dispute.Where the
defendant is in possession of the suit property claiming title, he can be
allowed to change the nature and character of the property if it does not
diminish the value of the property and he can make construction on the property
at his own risk and he cannot be restrained. One cannot get an injunction to
restrain a man who is alleged to be a debtor from parting with his property.
Injunction in specific
performance suit
Contract
of sale does not create any title to the vendee and hence a transferee under a
sale deed cannot be restrained from enjoying possession of the property at the
instance of a person claiming to have a previous agreement of sale in his
favour. Defendant in a suit for specific performance may be restrained from
transferring the suit property and making construction thereon by a third party
during the pendency of the suit. However, it has been held that in a suit for
specific performance an order of injunction restraining alienation is
unnecessary as s.52 of the Transfer of Property Act is an adequate safeguard.
Favour
by making the construction and the court would not in equity order demolition
of the construction. The Appellate Division subsequently distinguished those
cases and held that a cosharer cannot be permitted to go on making construction
where he is possessing land in excess of his share. In Hashem Ali v. Begum Nurjahan, 9 MLR the Appellate Division held that the principle
that in urban area no cosharer should be restrained by injunction from making
construction is not applicable where the very right to construct is based on a
deed which is tainted with fraud. Where a co-owner inducted a tenant in the
premises without the consent of the other co-owner and the tenant runs a
workshop without permission and license from Municipal Corporation, the court
may restrain the tenant from running a workshop in the premises.
Where
the stranger purchaser files a suit for permanent injunction in respect of an
ejmali property and sought temporary injunction, it was held that if temporary
injunction results in giving possession of a part of an ejmali property held by
the members of the same family to a stranger, then it should not be granted
without first specifying the land; a stranger transferee cannot be put in joint
possession of an ejmali property with the family members as such procedure
would be inconvenient and lead to breach of peace. A purchaser-plaintiff has no
right to put a restraint by way of injunction upon other cosharers in specific
possession to enjoy their share the way they think best.
Waste,
damage, alienation: An injunction can be granted if there is a real danger of
the subject-matter of the suit being wasted, damaged or alienated by any party
to the suit.But a mere allegation is not sufficient; there must be proof of
actual or reasonably apprehended danger of such waste, damage or alienation.
The question as to what constitutes sufficient danger depends upon facts and
circumstances of each case. It is necessary to show some overt act towards
alienation of the property such as negotiation or offer for sale should be
alleged and proved.’
Wrongful sale of property-
in execution of decree
An
injunction may issue to restrain a party when the property in suit is in anger
of being wrongfully sold in execution of a decree. Thus no injunction can issue
restraining execution of a decree of eviction as in cannot be said that the
property is in danger of being wrongfully sold in execution of the decree.”
Where a part)- obtains a decree in execution of which the property was being
sold, the judgment-debtor cannot get an injunction in a suit filed by him for
declaration that the decree was not binding on him as the decree-holder has a
right to execute the decree until the decree is set aside.” But where A obtains
a decree against B and attaches or otherwise proceeds against a property
belonging to C and C thereafter files a suit for declaration of his right
thereto and prays for temporary injunction, an injunction may issue as this is
a case of wrongful sale of the property in execution of a decree. A decree
which prima facie appears to be illegal or void can be construed as causing
injury and the court can issue injunction restraining its execution. In
granting injunction restraining sale in execution, the court should exercise
its discretion cautiously and wisely and see that the machinery of the court is
not used for fraudulent purpose. A court is not debarred from passing the order
of injunction restraining a party from executing a decree merely because the
decree is of a court of superior grade.
Removal of property
to defraud creditors
An
injunction can be granted to restrain a threatened disposal of movable or
immovable property in fraud of creditors. It can be granted even in a suit for
money where the court is satisfied that the defendant threatens or intends to
remove or dispose of his property which is wholly outside the scope of the
suit. The plaintiff, of course, will have to prove by definite evidence the
threat or intention to remove or dispose of the property to defraud the
creditors.
Elective offices
The
court should always be cautious and slow in interfering with the functioning of
elective institutions and should be watchful not to allow abuse of the process
of the court by persons who want to nullify the result of an election with the
aid of an interim order of the court.
Breach of contract
Pending
a suit, the court can issue an injunction restraining the commission of any act
which will involve a breach of the contract. But no injunction can issue when
the breach of contract has already been committed. In order to obtain the
injunction order, the applicant must satisfy the court that he has a completed
contract under which he has acquired a right. An injunction cannot be granted
where the contract is not enforceable or when it is illegal. It is an important
qualification that a party is not entitled to an order of injunction
restraining breach of a contract when he is not going to suffer an irreparable
loss, or in other words, is not going to suffer a loss which cannot be
compensated in monetary terms. Explanation to s.12 of the Specific Relief Act
proclaims that unless the contrary is proved, the court shall presume that the
breach of contract to transfer immovable property cannot be adequately relieved
by compensation in money. Hence, temporary injunction restraining the breach of
such a contract can be passed. No injunction can be issued to restrain breach
of a contract which cannot be specifically enforced. Thus a contract of
personal service not being specifically enforceable, no injunction can issue to
restrain the employer from terminating the service of the employee. In the same
way no injunction can issue in respect of a revocable license or a contract of
agency. However, breach of a negative covenant, express or implied, in a
contract of sale of goods can be restrained by injunction.
Where
parties have agreed that a suit relating to certain matter should be brought in
a particular court within the country, an injunction may issue to restrain
filing the suit in any other court.
Tender and auction
In
a suit by the highest bidder for declaration that acceptance of the tender of
the bidder quoting lesser amount was illegal and for permanent injunction, the
lower court passed an order for maintenance of status quo which was treated to
be an order of injunction and the Appellate Division held that the highest
bidder had no actionable right to be entitled to an order of injunction. The
Appellate Division observed, “Had it been the case that the tender was accepted
in violation of a condition which has been mentioned in the tender form, then
an argument could be advanced for seeking the protection of the inchoate right
of the tenderer.” But in Umme Kawsar v. Shams Corporation the court held that
the above observation “did not decide any point, but merely refers to the
possibility of raising an argument for protecting such right of a tenderer if
he has only been able to prove that some conditions laid down in the tender
notice has been violated prior to accepting the same.” In the subsequent case
of Mozher Sowdagar v. Zahirul Alam 10 DLR the Appellate Division upheld that order of the
High Court Division setting aside the order of temporary injunction stating,
“Even if it were the highest offer, he by that offer did not acquire any right
t purchase the vessel, as his offer was not accepted by the Corporation which
reserved full power to reject offer, and no agreement was concluded with him.”
But there has been shift from this position and the Appellate Division upheld
the declaration of illegality by the High Court Division at the instance of a
tenderer when another tenderer’s bid was held responsive in violation of the
tender terms. In similar situation, a tenderer may seek invalidity of the
action of the authority inviting tender on the ground of violation of tender
terms and press for an order of temporary injunction.
Exception of the General
Rule
Under
Specific Relief Act there are some exception of the general rule, those are as
follows-
Employer and employee
In
matters of employment where the rule of master and servant is applicable the
master has the general right to terminate the services of his employee unless
the latter can show that the contract contained a term under which the master
gave up his right. Even though the applicant may have an arguable case, the
employer having the inherent right to dispense with the services of the
employee no injunction can issue. The relationship being essentially a
contractual one, the remedy of the employee is by way of a suit for damages in
case of wrongful termination. As such no injunction can be issued forcing the
employer to keep the employee in service. There is, however, an exception to
the rule where there is a negative covenant within the meaning of s.57 of the
Specific Relief Act in which case the court can grant temporary injunction in
an appropriate case.
Suspension
from service is not a punishment but is incidental to disciplinary proceedings
which is discretionary with the departmental authority and no pre-hearing is
necessary and no mandatory or temporary injunction restraining the employer
from enforcing the order of suspension can be granted. When a disciplinary
proceeding has been initiated legally or illegally, the plaintiff may face the
proceeding raising objection there; initiation of the proceeding cannot by
itself be a ground for passing an order of injunction
Suit between partners
In
normal circumstances and in the absence of any other complicating factors, a
mere assertion by a partner to exercise his rights under the deed of
partnership or even the enjoyment of his right as partner cannot be looked upon
as a threatened injury necessitating temporary injunction. But when the
defendant partners persisted in conducting themselves so wantonly as to render
it impossible for the partnership business to be carried on in proper manner
and the action on their part is injurious to business, injunction restraining
them from interfering with management and conduct of partnership cannot be
refused to the plaintiff partner simply because he has not prayed for dissolution
of partnership. To stop a running business by injunction a strong case is
required to be made.”
Bank transactions
No
prohibitory order can be passed by a court to interfere with normal banking
transactions and with the contract obligation of the bank where the only
dispute is as to the performance of the contract and the dispute can be
resolved by a suit for damages. When money is deposited with a bank, its
withdrawal is governed by the terms of the contract and the bank is bound to
comply with the conditions of the contract and no injunction can issue
preventing operation of the bank account.
It
is fairly well settled that the courts are reluctant to interfere with
international business transactions which have been entered into by the parties
through performance guarantee or letter of guarantee.Bank guarantee or letter
of credit is given by a banker at the instance of one of the parties to, and
pursuant to the terms of, the main contract. Generally speaking, no injunction
can be issued to restrain the bank from making payment under an unconditional
bank guarantee or an irrevocable letter of credit. There is a distinction
between the terms of the bank guarantee or letter of credit and the terms of
the underlying contract between two parties with which the banker is not
concerned. Once the conditions of the bank guarantee or the letter of credit
are fulfilled, the bank has nothing to do with the performance or
non-performance of the underlying contract. A bank issuing a bank guarantee or
letter of credit is not concerned with the underlying contract between the
buyer and seller or between employer and the contractor; the bank guarantee or
letter of credit constitutes an independent contract between the bank and the
party in whose favour it is issued. Where the State Trading Corporation entered
into agreement with a foreign buyer to sell goods which the Corporation was to
obtain from a local supplier for which the local supplier furnished a bank
guarantee, but the contract failed because of the default of the local
supplier, the enforcement of the bank guarantee cannot be stopped by
injunction. The general rule is subject to the exception that such bank
guarantee or letter of credit can be stopped by injunction on the bank only in
case of fraud of which the bank has clear notice or when there is special
equity justifying such injunction. But no injunction can be granted in
international business transaction merely on allegation of fraud.Banks cannot
be made to act as policeman to police upon any kind of fraud in international
transaction; no re-imbursement should be stopped by any court when an
authorised or negotiating bank makes any payment to a third party on the basis
of papers appearing to be correct. Where the beneficiary of the bank guarantee
or letter of credit has perpetrated fraud when the bank guarantee is sought to
be invoked despite the contractor withdrew his bid before acceptance, there
results no formation of contract and injunction can be issued to restrain the
bank from making payment under the bank guarantee.Where the buyer did not take
steps to add confirmation to the letter of credit as required by the contract
of purchase and the buyer en cashed the bank guarantee furnished as performance
bond, mandatory injunction was issued for return of the amount of the guarantee
to the bank which issued it. Cases involving allegations of misrepresentation
or suppression of material facts or violation of the terms of the guarantee
cannot be treated differently and as such where there are allegations of such
nature the court would not hesitate to grant injunction. Where the plaintiff
received part of contracted goods and the balance was not supplied and the
documents were negotiated beyond the stipulated time, the plaintiff is entitled
to injunction restraining payment under the letter of credit for the portion
not supplied.
The
question arises whether the issuing bank is liable to make payment when the
issuing bank comes to know about the fraud after it accepted the draft in a
case where the letter of credit provided for deferred payment and in the
meanwhile the negotiating bank made payment to the beneficiary of the letter of
credit on acceptance of the draft by the issuing bank. In Korea Exchange Bank v. Gemini Garments the negotiating bank made payment on discrepant
documents and then sent it to the issuing bank which accepted the draft, but
the fraud perpetrated by the beneficiary of the letter of credit was found out
and the High Court Division after examining a number of cases from local as
well as foreign jurisdictions found that the negotiating bank was a collecting
bank and it having made payment before the acceptance by the issuing bank could
not be treated as holder in due course and the issuing bank could not be compelled
to make payment to the negotiating bank. The High Court Division further found
that the beneficiary having been found to be a bankrupt, Korea Exchange Bank
would have no right to payment since its principal forfeited its right to such
payment and such payment would result in irretrievable injustice. Where the
bank has no notice of the fraud perpetrated by the drawer of the bill of
exchange, payment to the holder in due course of the bill of exchange under a
letter of credit cannot be restrained by injunction.
Banker’s
letter of indemnity stands in the same position with bank guarantee or letter
of credit. The court should not interfere in a transaction between a bank and a
beneficiary of a letter of indemnity by grant of injunction at the instance of
the other party restraining the beneficiary from enforcing the liability under
the letter of indemnity executed by the banker which was absolute and upon a
demand being made by the beneficiary, the bank becomes liable to honour the
same regardless of any controversy between the parties.
Some other Relevant
Provision of Injunction
Injunction in suit for
declaration only
A
temporary injunction can be granted even in a suit for mere declaration. The
jurisdiction of the court to issue temporary injunction in a suit for mere
declaration can no longer be doubted although such injunction may not be
strictly grounded under Or.39 r. 2. However, it should not be granted where the
plaintiff being successful in the declaratory suit will have to bring another
suit for enforcing his right which he seeks to keep undisturbed by the
injunction. In some cases it has been held that an injunction should not be
granted in a suit for declaration where there was no claim for consequential
relief of permanent injunction. The Appellate Division explained the position
stating as follows-
“the
principle is generally applicable to case where in a suit for title relating to
immovable property is filed, and consequential relief ought to have been made,
but has not been made, and an injunction has been sought for; normally this
rule is to be observed, but it cannot be taken as an absolute rule, because if
the suit is otherwise maintainable, and if it is found that the defendant
without being in possession, wants to disturb the possession, the Court cannot
be powerless to grant temporary injunction in an appropriate case.”
Where
the plaintiff auction purchased a tannery and upon a dispute relating to
reduction of the price filed a suit for declaration of his entitlement to a
remission of the price on account of failure of the government to deliver the
full quantum of land, temporary injunction in prohibitive and mandatory form
relating to possession was refused as the suit was declaratory one and not in
respect of possession.
Inherent power of the court
As
temporary injunctions are granted to protect the interest of the applicant till
his rights are finally adjudicated upon, the court has inherent jurisdiction to
grant interim injunction even when the case does not fall within the terms of rule
l and 2. Thus where in a dispute the well-being and economy of several villages
appear to be involved and are likely to be in jeopardy if a proposed khal is
allowed to be excavated or water is allowed to be bailed out, temporary
injunction may be granted to restrain such acts and the mere plea that the
impugned order affected lands outside the suit plots would not invalidate the
order.Injunction restraining the defendant from interfering with possession of
the plaintiff who was sued for specific performance can be granted when the
agreement sought to be enforced recites delivery of possession to the
plaintiff. The court can in exercise of its inherent jurisdiction issue
temporary injunction restraining execution of a decree alleged to have been
obtained by fraud or pass an order of mandatory injunction to restore status
quo ante Where in partition suit , the Subordinate Judge while keeping the
matter of temporary injunction pending passed an order permitting opposite
party to make construction of a multi-storied building in exercise of inherent
power, the High Court Division found the exercise of the power to be fanciful.
Appointment of receiver
In
a case it was held that a receiver cannot be appointed in an application for
injunction as the words “make such other order” do cover such case. However, in
other cases, it has been held that there is nothing in the rules prohibiting
such appointment and a receiver may be appointed if the circumstances of the
case so require. The latter view seems to be correct. Thus where temporary
injunction was passed by the trial court resulting in a void, the High Court
Division approved the order of the appellate court appointing a receiver. Where
the question of possession of a land in dispute is doubtful the proper course
is to appoint a receiver till the disposal of the question pending before the
civil court.
According to order
XL, rule 1 of CPC, where it appears to the court to be just and convenient, the
court may be order-
a)
appoint a receiver of any property, whether before or after decree;
b)
remove any person form possession or custody of the property.
c)
commit the same to the possession, custody or management of the receiver; and
d)
confer upon the receiver all such power, as to bringing and defending suits and
for the realization, management, protection, preservation and improvement of
the property, the collection of the rents and profits, and the execution of
documents as the owner himself has, or such of those powers as the Court thinks
fit.
Injunction When Refused
& Procedure of Injunction
Statutory bar against
issuance of injunction
An injunction cannot be
granted
a)
to stay a judicial proceeding pending at the institution of the suit in which
the injunction is sought, unless such restraint is necessary to prevent a
multiplicity of proceedings;
b)
to stay proceedings in a Court not subordinate to that from which the
injunction is sought;
c)
to restraint persons from applying to any
legislative body;
d)
to interfere with the public duties of any department of the Government,
or with the sovereign acts of Foreign Government;
e)
to stay proceedings in any criminal matter;
f)
to prevent the breach of a contract the performance of which would not be
specifically enforced;
g)
to prevent, on the ground of nuisance, an act of which it is not reasonably
clear that it will be a nuisance;
h)
to prevent a continuing breach in which the applicant has acquiesced;
i)
when equally efficacious relief can certainly be obtained by any other
usual mode of proceeding except in
case of breach of trust;
j)
when the conduct of the applicant on his agents has been such as to disentitle
him to the assistance of the Court;
k)
Where the applicant has no personal interest in the matter.
Where
a statute prohibits entertainment of a suit, application or other legal
proceeding for an order of injunction, no temporary injunction can be issued.
Successive applications
If
an application for temporary injunction has been rejected, another application
for injunction on the same grounds will not be entertained, though the
principle of res judicata is not applicable in respect of applications for
injunction, as it amounts to abuse of the process of the court. But where the
application for injunction has been dismissed for default, there is no legal
hurdle in the way of renewing the application. However, if the fresh application
for injunction is made on the facts and circumstances which are different from
those which existed earlier and relied on, the subsequent application may be
considered by the court in the light of the changed circumstances.
Restitution
Apart
from punishing a party for violation of the order of injunction, the court can
pass order for restoration of the status quo ante. A sale held in execution of
a decree in violation of an order injunction restraining the execution of
decree may be set aside under inherent power. When the defendant has, in
violation of the order of injunction, dispossessed the plaintiff from the suit
property during the pendency of the suit, the court has the authority and duty
to restore possession to the plaintiff by evicting the defendant in exercise of
inherent power.
Appeal and revision
An
appeal lies from an order granting or refusing temporary injunction. Appeal
will lie against an order refusing temporary injunction without issuing notice
under order-3 of CPC an revision against such order is not maintainable. But no
appeal lies from an order merely issuing notice to show cause. However, an
appeal shall lie when with the order to show cause, an order of ad-interim
injunction is passed as it will be an order under rule 1 or 2 of CPC. But in Abdul Jalil v. AB Siddique 21 DLR the Appellate Division deprecated the procedure
of filing appeal against interim injunction and the decision suggests that
instead of filing appeal or application under r.4, the aggrieved party should
file written objection and have the matter of temporary injunction heard.
Question arises whether an appeal lie when the court ordered issuance of notice
to show cause, but refused to grant ad-interim temporary injunction. As because
the matter of granting injunction remains open, no appeal should lie, but the
aggrieved party may file revision against the refusal to grant ad-interim
temporary injunction. An appeal being maintainable against an order passed
under r. l and 2, an order passed under r.2 (3) punishing or refusing to punish
violation of injunction is appealable.
No
appeal shall lie when the court grants temporary injunction in exercise of
power under s.151 of CPC and in such case the
aggrieved party may file a revision.
Where
a revision is filed bona fide when the impugned order is appealable, the
revisional application is treated as a memorandum of miscellaneous appeal. But
where the appeal lies before the District Judge against an order granting or
refusing temporary injunction.
Disobedience to an order of
injunction
A
party bound by the order of injunction may be proceeded against under r.2(3)
for violation of the order of injunction. No one can be guilty of disobedience
of an order of injunction except the person to whom it is directed.1 Hence a person not party to the proceedings at
the stage of passing the order of Injunction and confirming of status quo
cannot be punished under r.2(3). A person who claims under a party bound by the
order of injunction may be proceeded against for violation of the order of
injunction. Where employee or agent of the person against whom the injunction
is issued commits breach of injunction, the principal be liable; merely because
the offending act has been done by the employee or agent of the party
injuncted, it cannot be a defence for committing breach of the order of
injunction. State is a person and is liable to be proceeded against for
disobedience of the order injunction.’ The officers of the government may be
proceeded against for disobedience even though they may not be parties to the
suit.’ A party restrained by injunction may be liable for contempt when in
violation of the order of injunction he delivered paddy to the mill on the
order of the procurement officer as the order of the court must prevail over
any executive order. A person who has been restrained by an order of injunction
cannot disobey the order by asserting that he has got a new capacity different
from the one in which he was restrained. An injunction is essentially a
disability against him and the fact that his capacity is changed is no
justification for his disobedience.
Nature of the proceeding
and procedure
A
person is liable for violation of order of injunction when he has notice of the
order. It is not always safe to rely upon the report of service on record to
hold that notice has been served, particularly when the report itself discloses
that service was by affixation. In such circumstance, the serving peon should
at least be called. Before punishing a person for disobedience, he must be
given opportunity to prove that he did not receive notice before the act of
violation. However, when the order of injunction was passed in presence of the
lawyers of both sides, the order of injunction must be presumed to have been
communicated to the party affected thereby and it is no excuse for that party
to say that the order was not communicated to him personally.
Proceeding
for violation of an order of injunction partakes of a quasi-criminal nature and
the court in such proceeding should frame issue disclosing material particulars
constituting the offence so that the person charged may be put on his guard as
to his defence. Proof of violation by production of evidence is necessary and
the person proceeded against should also be given an opportunity to prove the
contrary. Where the court passed an order to maintain status quo with respect
to certain property without making the ad interim order of injunction absolute,
it is the duty of the court to come to a positive finding regarding possession
in respect that property before punishing any one for disobedience of the order
passed by the court.Before ordering demolition of any construction, the court
should record a finding that the construction was set up and to the extent
after passing of the order of injunction.
When a person cannot be
punished
A
person may not be liable to be punished if he has acted in good faith and
without any intention to violate the order of injunction. A party cannot be
held to have willfully disobeyed the order of injunction if it is seen that the
order was ambiguous and reasonably capable of two interpretations and the party
did not intend to disobey the order, but conducted himself in accordance with
his interpretation of the order. The question whether the party has understood
the order in a particular manner and has acted accordance with such an
interpretation is basically one of fact and if the materials before the court
do not support such a state of affairs, the court cannot attribute an innocent
intention based on presumptions, for the only reason, that ingenuity of the
counsel can discover equivocation in the order which is sought to be enforced.
A party restrained by an order from disturbing possession of the plaintiff
cannot take the stand that he has been in possession from before the order of
injunction which implies a judicial finding that he was not in possession.
Where an injunction is operative, a party cannot disobey it on the strength of
an order under s.145 of the Code of Civil Procedure; he is required to bring
the order of the Criminal Court to the notice of the Civil Court for reconsideration
of the order of injunction, but so long as the order of injunction is
operative, the finding of the Criminal Court is of no consequence. An
injunction, although subsequently discharged because the plaintiffs case
failed, must be obeyed while it lasts. However, where an act has already been
done before the injunction order has been issued; there can be no punishment
for disobedience.
Which court can punish
The
court which passed the order of injunction has the power to punish disobedience
of the order. Question arises whether a court to which the suit is transferred
after the order of injunction was passed can exercise the power under sub-rule
(3) of r.2. Referring to s.150 of the Code, the Appellate Division held that
the transferee court which is in of the suit can exercise that power. The
Appellate Court has the same power to order punishment as the original court.
Punishment for disobedience
For
disobedience of an injunction order the court may order arrest of the party in
violation or attach his property. The court is not bound in the first instance
to attach the property and then order imprisonment. InAzizul Haq v. Anwara
Khanum, 22 DLR the defendant was
sentenced to imprisonment for five days, but the High Court Division modified
the punishment on the prayer of the defendant to fine of Tk.500/-. It is
submitted that the law has prescribed the punishment keeping in view the
requirement of undoing the wrong which cannot be achieved by changing the
punishment to one of fine and the legislature advisedly specifying the
punishment, the court ought not to have awarded a punishment not sanctioned by
the relevant law. Any willful violation or disregard of the order of the court
is a matter of serious concern for the society and the wrong-doers must be
adequately punished in accordance with law, otherwise the dignity of the court
and majesty of the law will be seriously impaired.
Case Study Relating
Injunction
Case Study No
10
October 2003
The
Defendant’s claim that he is the owner of the land will not be a valid defence
to the suit that has been filed against him under s.9 of SRA 1877.
In
fact, it is irrelevant as to who the owner of the land is for the purposes of a
suit under s.9. What is important is who was in possession at the time of the
dispossession. Even though the person in possession is not the true owner of
the property, he may not be dispossessed by the real owner without due recourse
to the law.
The
Defendant’s claim of ownership will not prevent my client from repossessing the
property. The Defendant can however file a suit according to the first proviso
to s.9 to establish his title to the property and recover his possession
thereof. In this respect, a suit may be filed by the Defendant pursuant to ss.
8 and 42 of SRA 1877.
Rationale
of s.9 is to prevent the owner of land from taking the law into his own hands.
Now,
add own points including case law as to why it does not matter for the purposes
of s.9 even if the real owner of land wanted to dispossess the person in
possession who does not have title to the land.
10
October 2003
The
Court cannot compel specific performance of the contract requiring Rina to sing
at the private law college in Dhaka. This is because s.21(b) of SRA 1877
provides that a Court will not specifically enforce a contract which runs into
very minute and numerous details or which is very much dependant on the
personal qualifications or volition of any of the parties.
In
this case, the contract for singing at the private law college in Dhaka
depended totally on the personal skills/qualification and/or volition of the
parties and accordingly cannot be enforced (s.21(b) SRA 1877).
However,
on the basis of s.57 of SRA 1877, whilst it may not be possible to force Rina
to sing at the private law college, it may be possible to prevent her from
singing at the BTV programme.
S.57
provides that where a contract consists of an affirmative agreement to do a
certain act and a negative agreement, express or implied, not to do a certain
act, the circumstance that the Court is unable to compel specific performance
of the affirmative agreement will not preclude it from granting an injunction
to perform the negative agreement (provided that the applicant, the college in
this case, has not failed to perform the contract so far as it is binding on
it).
Now,
it can be said that there was an implied term in the contract between Rina and
the LawCollege that during the period of the contract, Rina would not sing for
any other organisation.
Accordingly,
on the basis of s.57, it is possible for the Court to grant an injunction to
prevent Rina from singing at the BTV programme.
Also,
under s.65 of the Contract Act 1872, when an agreement is void, the person who
has received any advance under such agreement is bound to restore it or
compensate the person from whom he received it. So, Tk. 25,000 has to be
returned to the college.
In
the Court of the Joint District Judge, Dhaka
Title
Suit No……/2005
In
the matter of:
The
Principal
DhakaLawCollege
Address
……………………..Plaintiff
Versus
1.
Rina Brown
Daughter
of Salim Brown
Address
2.
BTV
Address
…………………Defendant
and
In
the matter of:
An
application for an injunction under s.57 of Specific Relief Act 1877
The
humble petition of the Plaintiff above-mentioned most respectfully
Sheweth:
That the Plaintiff is the
Principal of Dhaka Law College
That
a contract was entered into between the 1st Defendant and the
law college whereby the 1st Defendant offered to sing for a
Charity Show for 1 week in aid of the college. That the show was scheduled to
be held on 1st November 2003 in relation to which the 1st Defendant
received an advance of Tk. 25,000 from the college.
That
on the 5th October 2003, the Plaintiff received a letter from
the 1st Defendant that she would not be able to perform at the
Charity Show as she was scheduled to sing at BTV’s special sponsorship
programme on the same day.
That
the 1st Defendant intends to sing at BTV by breaking the terms
of the contract with the Plaintiff.
That
the Plaintiff has made extensive preparations and undergone huge expenses in
relation to the show to be held on 1st November 2003. That if
the 1st Defendant fails to perform at the college on the day,
then the Plaintiff is going to suffer irreparable loss.
That
it is in the interests of justice that an injunction be granted preventing Rina
from singing at the BTV programme on the 1st November 2003.
Wherefore
it is humbly prayed that your honour would graciously be pleased to grant an
injunction preventing the 1st Defendant from singing at the BTV
programme on the 1stNovember 2003 and make such other orders at it
considers fit and proper.
and
For
this act of kindness, the Plaintiff as in duty bound shall ever pray.
Verification
That
the statements made above are true to the best of my knowledge and are matters
of record in witness whereof I have signed this verification on this 10th day
of October 2003 sitting in the chamber of my Advocate.
……………….
(Signature)
Recommendation
According
to CPC in case of procedure, the court shall in all cases, before granting an
injunction, direct notice of the application for the same to be given to the
opposite party and be satisfied that notice has been duly served, or could not
be served on account of refusal by the opposite party of receive,
otherwise.
Court
shall not, without serving reasonable notice to the government pleader
and giving him or any pleader authorized by him in that behalf an opportunity
of being heard, pass ex party any order of ad interim or temporary injunction
under any of the aforesaid rules of this order at the instance of a private
party against the government or any statutory public authority.
Above
the discussion, it is clear that there have major discrimination between
government and general public. Because, in case of general public giving notice
is not mandatory. But in case of government there must be giving notice. Here
in emergency case the party may be deprived even destroyed and here clearly law
is not equal for everyone. So, that provision must be amendment for betterment
of people.
Judges
must be 6 decrees in a month. But injunction order does not consider as a
decree. So they are not interested about that judgment. For end of justice this
order should be included about subjected that 6 decree.
The
procedure of injunction petition just like original case. So here a large time
is west by that process and original case is deprived. For betterment of legal
procedure here some information is very necessary.
Conclusion
Every
court is constituted for the purpose of administering justice among particles
and there’re, must be deemed to possess all such powers as may be necessary to
do full and complete justices to the parties before it.
It
is a well settled principle of law that interim relief can always be granted in
the aid of and as ancillary to the main relief available to the party on final
determination of his rights in a suit or any other proceeding. Therefore, a
court undoubtedly possesses the power to grant interim relief during the
pendency of the suit. Injunctions are thus injunctions issued during the
pendency of proceedings.
Bibliography
1. Akbar Khan Raja Said – The specific relief Act
2. Siddique AKM – The specific relief Act 1877
3. Mohammad Shaukat – The specific relief Act
4. Afroza Zerin Syeda – The specific relief Act
5. Akter Jahan Mst. Masuda–The specific relief Act and the trust Act
6. Gandhi B. M – Equity, Trusts and Specific relief
Act
7. Neogi Probir – The specific relief Act
8. Das Bosu Thakur – Equity, Trust and specific relief Act
9. Islam M. and Neogi Probir – Law of Civil Porcedure
10. Shakil Khan H. M. – Transfer of property Act
Website:
1.
http://www. /arts/law/injunction-specific-relief-act.html
