Question Answer on Ad interim or Temporary Injunction

Question: 'No order of ad interim or temporary injunction without hearing the opposite party is permissible'- how shall you evaluate this proposition in the light of the Code of Civil Procedure?

Answer:

The provision of temporary injunction without the hearing of the other party:

'No order of ad interim or temporary injunction without hearing of the opposite party is permissible'- the provision has been discussed in rule 5A of order 39 of the Code of Civil Procedure. Such provision is necessary for the interest of justice. Because, if an order of injunction has been made without hearing of the other party, that prejudices the rights of the parties of the suit. The provision of rule 5A of order 39 is discussed below:

Court shall not, without serving reasonable notice to the Government Pleader and giving him or any Pleader authorised by him in that behalf an opportunity of being heard, pass ex parte 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, if such order is likely to prejudice or interfere with any measure designed to implement any development programme, or any development work or otherwise harm public interest.

The Court shall, in all cases where a private party makes an application for ad interim or temporary injunction against another private party, direct notice of the application to the opposite party, unless it appears that the object or granting the injunction would be defeated by the delay.

If any order of ad interim or temporary injunction is passed ex-parte at the instance of a private party against another private party, the Court shall hear and dispose of the matter on merit within seven days of appearance of the opposite party, unless the period is extended further at the instance of the opposite party, and any such order of ad interim or temporary injunction shall stand vacated, if the party at whose instance it was passed, prays for adjournment, or on being called upon by the Court, fails to attend hearing.

Question: A civil suit is dismissed for the absence of the plaintiff due to sickness after several days of the order of temporary injunction. Later, the suit is revived under rule 9 of order 9 of the Code of Civil Procedure. Is the order of temporary injunction enforceable? Answer with reasoning.

Answer:

According to rule 1 of order 39, an order of temporary injunction shall be effective till a fixed period or till the disposal of the case or till the court thinks fit for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property. According to section 53 of the Specific Relief Act, the temporary injunction shall be effective till a definite period or till any further order of the Court.

Question: When an order of temporary injunction can be granted? Describe the matters to be taken into account by the court in granting an order of temporary injunction.

Answer:

Temporary Injunction:

To oblige any party to do any act or to refrain from doing any act, is called temporary injunction. Ss.52-57 of the Specific Relief Act, 1877 and order 39 of the Code of Civil Procedure discusses with temporary injunction. Order 39 of the Code of Civil Procedure deals only with temporary injunction. But the Specific Relief Act deals with three kinds of injunction:

1. Temporary injunction

2. Perpetual injunction

3. Mandatory injunction

The definition of temporary injunction has been given in section 53 of the Specific Relief Act. Temporary injunction is such injunction which remains effective till further order. Temporary injunction can be granted at any stage of the suit. The decision of temporary injunction is an order.

The reasons of temporary injunction:

Section 53 of the Specific Relief Act defines temporary injunction and the provisions of how a temporary injunction can be given has been provided in order 39 of the Code of Civil Procedure. The order of temporary injunction can be given long before the disposal of the suit. Rule 1 and 2 of order 39 provides the reasons of temporary injunction. These are discussed below:

In which cases an order of temporary injunction can be granted:

According to rule 1 of order 39, where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act.

Injunction to restrain repetition of continuance of breach:

According to rule 2 of order 39- In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right and the court may order such temporary injunction, on such terms as it thinks fit.

Matters to be taken into account by the court in granting an order of temporary injunction:

Order 39 of the Civil Procedure Code does not specify what policy to adopt or what to consider in granting a temporary injunction. However, after reviewing the decisions and opinions of the High Court on this issue for many years, the following instructions are available:

1. Existence of a prima facie case:

Court shall consider whether the claim of the plaintiff is temporarily true or whether there is a prima facie case or not. It is necessary to grow the belief of the court that an important issue exists after scrutinizing the plaint and documents of the plaintiff in support of his claim for temporary injunction. In the case of Uttara Bank v. McNeil and Biswaburn Ltd. 33 DLR (AD)296, the Appellate Division was of the view that in order to obtain a temporary injunction, the applicant must prove a prima facie case. Therefore, if the plaintiff can prove the Prima Facie Case, then the issue of temporary injunction is considered in his favor.

2. Irreparable loss or inquiry:

Plaintiff's prima facie case is not sufficient to grant a court injunction. The plaintiff must further prove that there is a possibility of irreparable loss if the injunction is not imposed - a loss which cannot be compensated by money. So the loss that is usually not possible to compensate through money is considered irreparable loss.

3. Conduct of the applicant:

The court also considers the conduct of the applicant in granting or not granting the injunction.

4. Balance of convenience:

In the case of granting or not granting an injunction, the court considers that in whose favour, i.e.both the plaintiff and the defendant, the balance of convenience is. If the plaintiff is likely to suffer more if the temporary injunction is not granted than the defendant, and the defendant is likely to suffer less if the temporary injunction is granted, the injunction shall be granted in favour of the plaintiff. In an application for temporary injunction, the plaintiff must satisfy the court that if the injunction is not granted which of the difficulties shall he face.

5. Delay defeats equity:

Injunction is a form of equitable relief. Before granting an application for injunction, the court considers whether the plaintiff has an unusual delay in applying for injunction. If the plaintiff makes an unusual delay, he may not be granted injunction.

6. Subject to the provisions of the SR Act:

In case the plaintiff files a suit for permanent injunction under the provisions of the S.R. Act and his permanent injunction is of such a nature that, if the temporary injunction is not granted, the case of permanent injunction of the plaintiff becomes meaningless, then the court may consider temporary injunction on behalf of the plaintiff.

Question: Can a court can alter/set aside an order after granting an order of temporary injunction? Discuss with the relevant provisions of law.

Answer:

According to rule 4 of order 39, court can set aside the order of temporary injunction once it is granted. Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order.

Question: Describe the consequence disobedience or breach of the order of temporary injunction.

Answer:

According to rule 2(2) of order 39- the Court may by order grant such injunction, on such terms, as to the duration of the injunction, keeping an account, giving security or otherwise, as the Court thinks fit. According to rule 2(3) of order 39- in case of disobedience, or of breach of any such terms, the Court granting an injunction may order-

1. the property of the person guilty of such disobedience or breach to be attached, and

2. may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release. The order of attachment shall not last more than 1 year, and in case of continuous breach, court may order the sale of such property.

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