Injunction is a form of Relief available in law, whereby a Party to the proceeding is prevented from doing certain acts which it is under an obligation not to do; or it is called upon to do certain acts, which it is under an obligation to do. This right to claim Injunctive Relief may arise out of contract or may arise out of statutory obligations or may arise under common law.
The Injunctive Relief may be in the nature of perpetual Injunctions, temporary Injunctions and mandatory Injunction. As the names suggest, in perpetual Injunctions, the adversary is Ordered to perpetually restrain from doing something; in temporary Injunctions, the adversary is temporarily restrained from doing certain acts, till the final decision of the matter before the Court. Mandatory Injunction would imply such reliefs, requiring some positive actions from the adversary, which comprises its obligations, either under the law or under the contract, and which the courts are capable of enforcing against the adversary.
These Injunctive Reliefs are substantially claimed in cases of property disputes relating to unlawful or forcible dispossession, specific performance of contracts relating to sale of immovable properties, etc; and in cases of abatement of nuisance over the subject property.
Under the law, broadly, three distinct actions lie in respect of an immovable property, namely – (a) When a cloud is raised over a person’s title and he does not have a possession, a Suit for declaration and possession, with or without a consequential injunction is the remedy; (b) Where a person claims title or interest, but he is out of possession, he has to sue for possession and consequential injunction, may be alongwith declaration to his title or interest; (c) Where there is merely an interference with a person’s lawful possession or where there is a threat of dispossession, or where there is a frustration or interference in the free and full enjoyment of the property, it is sufficient to sue for an Injunction simpliciter.
The law also protects the possession of a person who has obtained the same under the contract of sale, but for certain reasons, his title over the subject property remained to be perfected by formal registered conveyance; and perpetual Injunction Suit can be filed by such person to protect his possession against the title holder or against any person claiming through that title holder. [S.53-A Transfer of Property Act, 1882; AIR 2002 SC 960; AIR 2004 Bom 378, Full Bench; AIR 1996 SC 910]
An Injunction Suit may also be filed, so as to restrain or prevent public authorities / officials, from acting illegally, unlawfully, or so as to compel performance of obligations under the law. Mandatory injunction may be sought against Public Authorities, etc., to make a reasoned reply to Notice issued to them u/s 80 of CPC, or under any other law, as the case may be.
Whereas the law protects the possession of even a trespasser, and enjoins that he can be evicted only by following the procedure prescribed under the law, the Courts may order the eviction, at the stage of completion of pleadings and before evidences are led, if the Court is satisfied that the concerned party has failed in his pleadings, showing even prima facie rights to occupy the subject property, and his adversary has able to establish their rights over the subject property. [AIR 1989 SC 2097; AIR 2012 SC 1727]
To claim perpetual Injunction over any property, or temporary Injunction pending the grant of perpetual Injunction, it must clearly be shown that the Plaintiff is in settled possession; and has clear right, title or interest duly recognized under the law, to occupy the subject property. Unless this is shown, no person can claim Injunction. [AIR 2016 CC 1080]
In our country where litigation takes number of years in adjudicating contesting rights of the parties, the Injunctive relief in the nature of temporary Injunctions pending the litigation, becomes critical for the Plaintiff, who knocks the doors of Courts of law to protect his possession over the property; or to protect itself from the illegal action of the public authority.
To claim Orders of temporary Injunction, the law obliges the Plaintiff to make out a strong prima facie case in his favour; coupled with satisfaction of two aspects, balance of conveniences and irreparable injury to his rights. Prima facie case would mean a case where, considering the pleadings as true, and considering the supporting documentary material before it as genuine, the Court is satisfied about the rights and relief claimed by the Plaintiff.
The balance of convenience parameter envisage a test where the Court would weigh the inconvenience that would cause to contesting parties if order of temporary Injunction is passed, and the Plaintiff has to argue that Defendant would be less inconvenienced, and Plaintiff would be seriously inconvenienced;
and the test of irreparable injury contemplates a case where the Plaintiff would argue that if the order of temporary Injunction is not granted, the nature of injury which would be caused, could not be compensated in money terms, or the nature of injury would be such which cannot be reversed. [AIR 1970 MANI 37; AIR 1993 SC 276; AIR 2010 SC 296; 2014 (1) MhLJ 738; AIR 1993 SC 276; AIR 1999 SC 2171; (2007) 5 Andh LD 248]
In the exercise of powers of granting temporary injunctions, the Court may grant certain important reliefs, such as -
a) To maintain status quo over the subject matter / property;
b) May appoint a Court Receiver, that is, in the legal sense, the Court taking over the custody of the property, through an independent third person, who will act as per directions of the Court. [AIR 2015 SC 1394; AIR 1971 AP 380]
c) To conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
d) May appoint officer of the Court so as to carry out local investigation of the Suit property, for the purpose of clarify any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits;
e) May appoint officer of the Court for taking Accounts;
f) In exceptional cases, may order the restoration of possession of the subject property to the Plaintiff; [AIR 1990 SC 867]
g) The Civil Courts in the exercise of their inherent powers preserved u/s 151 of CPC, 1908, may also grant any suitable relief, as the peculiar facts of the case warrants. These inherent powers can also be exercised to secure implementation of Interim Orders. [AIR 1962 SC 527; AIR 2016 CC 1972]
h) In Money claims Suits, on satisfaction of existence of certain circumstances as spelled out in Order 38 Rule 5 of CPC, 1908, the Court may direct the Defendant, to (i) furnish security to produce any property belonging to him and to place the same at the disposal of the Court; or (ii) order the attachment of his property; or, (iii) furnish the bank guarantee for the Suit amount; or (iv) deposit the Suit amount in the Court. (2006) 4 CHN 381; (2008) 2 SCC 302.
The law provides for following consequences for the breach of Interim Injunction Orders -
a. The Court may order the property of the person guilty of such disobedience or breach, to be attached; The Court may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release. [AIR 2011 CC 3330]
b. The Court may dismiss the Suit if the breach is alleged to have been committed by the Plaintiff; or may strike out the defense of the Defendant, if the breach is alleged to have been committed by the Defendant. [2011 (3) AIR Bom R 392] (For Maharashtra Only).
c. The aggrieved person may initiate Contempt of Court proceedings against such person. [AIR 2015 SC 3699; (2015) 10 SCC 609]
Cases in which Injunction cannot be granted – Section 41 Specific Relief Act, 1963
(a) A person cannot be restrained from prosecuting a judicial proceeding. Yet Injunction can be granted restraining a person from prosecuting a judicial proceeding where it is necessary to prevent multiplicity of proceedings;
(b) A person cannot be restrained from instituting or prosecuting any proceeding in a Court higher to that of Court;
(c) Appealing to Legislative body;
(d) From instituting or prosecuting any proceeding in a criminal matter;
(e) Continuing breach in which the Plaintiff has acquiesced;
(f) If nuisance is alleged, a vague nuisance;
(g) If not specifically enforceable;
(h) Equally efficacious relief can be obtained by any other usual mode of proceeding, except in breach of trust – includes such situations where a wrong relief is claimed, wherein the appropriate relief could have been claimed; Like for example – case of Plaintiff seeking prayer of mandatory injunction of handing over of possession of Suit property, instead of asking for possession of property, as a Relief. Islam Ahmed versus Maqsood Ahmed (2007) 8 ADJ 2396; AIR 2013 All 35. This clause also deal with cases where jurisdiction of civil Courts are otherwise excluded – AIR 1976 SC 2621; AIR 2006 (NOC) 15 16 MP.
(i) Unclean hands of the Plaintiff;
(j) Locus of the Plaintiffs.
(k) Cannot be against a person who is not a party to the Suit. [(2009) 11 SCC 229]
Sandeep Jalan
Advocate.
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