DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION 2017-18

SUBJECT: CIVIL PROCEDURE CODE

FINAL DRAFT

ON

TEMPORARY INJUNCTION

Submitted to: Submitted by:

Mr. Vipull Vinod Digvijay Singh

Assistant Professor (Law) BA.LLB(Hons) 4th Sem

Enrollment No.- 160101064

ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the
completion of this project.

My deepest thanks to Professor Mr. Vipull Vinod the guide of the project for guiding and
correcting various documents of mine with attention and care. He has taken pain to go through
the project and make necessary correction as and when needed.

I would like to thank Dr. Ram Manohar Lohiya National Law University for giving me this
opportunity to work on this project. .

Lastly, I thank my friends for their support, for their help in collecting the material and for
critically going through the project and correcting the mistakes, without whom the project would
have been a distant reality.

I also extend my heartfelt thanks to my family for supporting and guiding me.

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 TABLE OF CONTENTS

INTRODUCTION: ......................................................................................................................... 4

DEFINITION: ................................................................................................................................. 5

BARE PROVISION: ...................................................................................................................... 5

Object of temporary injunction: ...................................................................................................... 8

Who may apply? ............................................................................................................................. 9

Against whom injunction may be issued ........................................................................................ 9

Grounds: ........................................................................................................................................ 10

Principles governing grant of injunction: ..................................................................................... 10

Discretion of the Court.................................................................................................................. 15

Grant of Injunction:....................................................................................................................... 16

Inherent Power to grant injunction: .............................................................................................. 17

Ex Parte Injunction: ...................................................................................................................... 18

Legal Ground for Granting Injunction: ......................................................................................... 20

Temporary Injunction: Duration: .................................................................................................. 21

Injunction on insufficient grounds: Section 95 ............................................................................. 22

BIBLIOGRAPHY ......................................................................................................................... 23

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INTRODUCTION:

Every court is constituted for the purpose of administering justice between the parties and
therefore, must be deemed to possess 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.

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. It is an extraordinary remedy that courts utilize in special cases
where preservation of the status quo or taking some specific action is required in order to prevent
possible injustice. For example, in a custody case, an injunction may be used to prevent a party
from removing a child from the country. Injunctive relief is an equitable remedy granted when
money damages are not able to compensate the plaintiff's violation of rights if an injunction is
not granted. Failure to comply with a notice of an injunction is punishable by being held in
contempt of court.

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.

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. It is a remedy in the form of an order of the court addressed to a particular person

4
that either prohibits from doing or continuing to do a particular act (prohibitory injunction); or
orders him to carry out a certain act (mandatory injunction).1

Under India Legal System, the law relating to injunction has been provided in the Specific Relief
Act, 1963. Injunction is categorized in two form i.e. Permanent Injunction and Temporary
Injunction. Section 37 of Specific Relief Act, 1963 provides that "temporary Injunction are
such as are to continue until a specified time, or until the further order of the court, and they
may be granted at any stage of a suit." The procedure for seeking temporary injunction has
been provided under Order XXXIX of the Code of Civil Procedure, 1908. However, an
injunction being discretionary equitable relief cannot be granted when equally efficacious relief
is obtainable in any other usual mode or proceeding.2

DEFINITION:

According to order 39 of the Code of Civil Procedure, 1908 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.

Thus temporary injunction is regulated under the provisions of rules 1-5, order 39 of the Code of
Civil Procedure, 1908.

BARE PROVISION:

1. Cases in which temporary injunction may be granted

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

1
Halsbury’s Law of England(4th edition) Vol. 24, para 901.

2
www.mondaq.com/india/x/257586/Civil+Law/LAW+OF+INJUNCTION+TEMPORARY+INJUNCTION.

5
 (b) that the defendant threatens, or intends, to remove or dispose of his property with a view
to[defrauding] his creditors,

(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the
plaintiff in relation to any properly in dispute in the suit,]

the Court may be order grant a temporary injunction to restrain such act, or make such other
order for the purpose of staying and preventing the wasting, damaging, alienation, sale,
removal or dispossession of the property or dispossession of the plaintiff, or otherwise causing
injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit,
until tile disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuance of breach

(1) 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 judgement, 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 cut
of the same contract or relating to the same property or right.

(2) The Court may be order grant such injunction, on such terms as to the of the durations
injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

[***]

2A. Consequence of disobedience or breach of injunction

(1) In the case of disobedience of any injunction granted or other order made under rule 1 or
rule 2 or breach of any of the terms on which the injunction was granted or the order
made, the Court granting the injunction or making the order, or any Court to which the
suit or proceeding is transferred, may order the property of the person guilty of such
disobedience or breach to be attached, and may also order such person to be detained in

6
 the civil prison for a term not exceeding three months, unless in the meantime the Court
directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the
end of which time if the disobedience or breach continues, the property attached may be sold
and out of the proceeds, the Court may award such compensation as it thinks fit to the injured
party and shall pay the balance, if any, to the party entitled thereto.]

3. Before granting injunction, Court to direct notice to opposite party

The Court shall in all cases, except where it appears that the object of granting the injunction
would be defeated by the delay, before granting an injunction, direct notice of the application
for the same to be give to the opposite party:

[Provided that, where it is proposed to grant an injunction without giving notice of the
application to the opposite party, the Court shall record the reasons for its opinion that the
object of granting the injunction would be defeated by delay, and require the applicant-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the
order granting the injunction has been made, a copy of the application for injunction together
with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents oil which the applicant relies, and

(b) to file. on the day on which such injunction is granted or on the day immediately
following, that day, an affidavit stating that the copies aforesaid have been so delivered or
sent.]

3A. Court to dispose of application for injunction within thirty days

7
Where an injunction has been granted without giving notice to the opposite party, the Court
shall make an endeavour to finally dispose of the application within thirty days from the date on
which the injunction was granted; and where it is unable so to do, it shall record its reasons for
such inability.]

4. Order for injunction may he discharged, varied or set abide

Any order for an injunction may be discharged, or varied, or set aside by the Court, on an
application thereto by any party dissatisfied with such order :

[Provided that if in an application for temporary injunction or in any affidavit supporting such
application a party his knowingly made a false or misleading statement in relation to a material
particular and the injunction was granted without giving notice to the opposite party, the Court
shall vacate the injunction unless, for reasons to be recorded, it considers that it is riot
necessary so to do in the interests of justice :

Provided further that where an order for injunction has been passed after giving to a party an
opportunity of being heard, the order shall not be discharged, varied or set aside on the
application of that party except where such discharge, variation or setting aside has been
necessitated by a change in the circumstances, or unless the Court is satisfied that the order has
caused undue hardship to that party.]

5. Injunction to corporation binding on its officer

An injunction directed to a corporation is binding not only on the corporation itself, but also on
all members and officers of the corporation whose personal action it seeks to restrain.

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.

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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.3 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
powers.4

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. 5 It
also cannot be issued against a court or judicial officer.6 Normally, injunction can be granted
against persons within the jurisdiction of the court concerned.7

3
Polins v. Gray, (1879) 12 Ch D 438.
4
Gujrat Bottling Co. Ltd. V. Coca Cola Co., (1995) 5 SCC 545.
5
L.D Meston School Society v. Kashi NAth, AIR 1951 All 558
6
Ibid

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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;8 or;
2. where the defendants threatens, or intends to remove or dispose of his property with a view
to defrauding his creditors;9 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;10 or
4. where the defendant is about to commit a breach of contract, or other injury of any
kind;11or
5. where the court is of the opinion that the interest of justice so requires.12

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

7
P. Venketachalam v. Rajagopala Naidu, AIR 1932 Mad 705.
8
Or. 39 R. 1(a).
9
R. 1(b).
10
R. 1(c).
11
R. 2(1).
12
Ss. 94(c), 151.

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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.

(a) Prima Facie Case: The first rule is that 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.

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‘Good prima facie case’ has been explained to mean that a serious question is to be tried in the
suit and in the event of success, if the injunction be not granted the plaintiff would suffer
irreparable injury.

Case: Uttara Bank vs. Macneill & Kilburn Ltd. 33 DLR.

The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a
prima facie case in his favour of him

Explaining the ambit and the scope of the connotation ‘prima facie’ case in Martin Burn Ltd.
VS. Banerjee,.13 “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 Seema Arshad Zaheer Case14, the Hon'ble Supreme Court has indicated the salient features
of prima facie case as under:

"The discretion of the court is exercised to grant a temporary injunction only when the following
requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded,
necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the
need for protection of the plaintiff's rights is compared with or weighed against the need for
protection of the defendant's rights or likely infringement of the defendant's rights, the balance of
convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being
caused to the plaintiff if the temporary injunction is not granted. In addition, temporary
injunction being an equitable relief, the discretion to grant such relief will be exercised only
when the plaintiff's conduct is free from blame and he approaches the court with clean hands."

13
AIR 1958 SC 79.
14
Seema Arshad Zaheer & Ors. Vs, Municipal Corporation of Greater Mumbai & Ors. – (2006) 5 Scale 263

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 (b) Irreperable injury: The existence of the prima facie case does not entitle the
applicant for a temporary injunction.15 The applicant must further satisfy the court
about the second condition by showing that he will suffer irreparable injury if the
injunction as prayed is not granted, and that there is no other remedy open to him by
which he can protect himself from the consequences of apprehended injury.
“Irreparable injury” simply means that the injury must be one that cannot be
adequately compensated for in damages. The mere fact that if no injunctions was
granted the party would be open to criminal prosecution does not mean that
irreparable injury would be non issue of an injunction.

However, in Best Sellers Retail India (P) Ltd. Case16, the Hon'ble Supreme Court observed
that prima facie case alone is not sufficient to grant injunction and held that:

"Yet, the settled principle of law is that even where prima facie case is in favour of the
plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on
account of refusal of temporary injunction was not irreparable."

In the leading case of American Cyanamid Co. v. Ethicon Ltd.,17 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

15
CCE v. Dunlop India Ltd., (1985) SCC 260
16
AIR (2012 ) 6 SCC 792.
17
(1975) 1 All ER 504.

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 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.
Where both sides are exposed to irreparable injury pending trial, the court has to strike a just
balance.18

(c) 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

18
Mahadeo Savlaram Shelke v. Pune Municipal Corpn., (1995) 3 SC 33.

14
 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.

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

15
 person who approaches the court. The discretion has to be exercised on sound judicial
principles and not arbitrarily.
In Dalpat Kumar v. Prahlad Singh,19 the Supreme Court stated, “ The court while granting
or refusing to grant injunction should exercise sound judicial discretion to find the amount of
substantial mischief or injury which is likely to be caused to the parties, if the injunction is
refused, and compare it with that which is likely to be caused to the other side if the
injunction is granted. If on weighing competing possibilities or probabilities of likelihood of
injury and if the court considers that, pending the suit, the subject-matter should be
maintained in status quo, an injunction would be issued. Thus the court has to exercise its
sound judicial discretion in granting or refusing the relief of ad interim injunction pending
the suit21.

Grant of Injunction:

In Agricultural Produce Market Committee Case20, the Hon'ble Apex Court has held that "a
temporary injunction can be granted only if the person seeking injunction has a concluded
right, capable of being enforced by way 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

19
(1992) 1 SCC 719.
20
AIR 1997 SC 2674

16
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.

Inherent Power to grant injunction:

Rule 1 of Order 39, no doubt, enumerates circumstances in which a court may grant interim
injunction. It, however, nowhere provides that no temporary injunction can be granted by the
court unless the case falls within the said provision. Hence, where the case is not covered by
Order 39, interim injunction can be granted by the court in exercise of inherent powers under
Section 151 of the Code.21

Notice: Rule 3
The court shall before granting an injunction, give notice to the opposite party, except where
it appears that the object of granting the injunction would be defeated by delay. 22 But the
proviso added by the Amendment Act of 1976 lays down that when an ex parte injunction is
proposed to be given, the court has to record the reasons for coming to the conclusion that the
object of granting injunction would be defeated by delay. In such a situation the court shall
order the applicant to send the copy of the application and other documents immediately to
the opposite party. In such a case, the court shall make an endeavour to finally dispose of the
application within 30 days from the date on which the ex parte injunction was granted. Where

21
Manohar Lal Chopra v. Seth hiralal, AIR 1962 SC 527
22
R.3, Shiv Kumar v. MCD, (1993) SCC 162.

17
 the court finds it difficult to dispose of the application within the period of 30 days, reasons
are required to be recorded.23
An order of injunction may be discharged , varied or set aside by the court on an application
being made by any party dissatisfied with such order, or where such discharge, variation or
setting aside has been necessitated by change in circumstances, or where the court is satisfied
that such order has caused undue hardship to the other side.24

Ex Parte Injunction:

Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 provides for ex-parte temporary
injunction in the cases of extreme urgency. However, Rule 3 does not stipulate a separate
application for ex-parte injunction rather such an application should be a part of an application
for a bi-parte temporary injunction and in such application an urgency shall be shown by the
applicant so as to warrant the passing of an ex-parte injunction/order. However, such an order
has to be temporary. The essential safeguards in this regard are briefly stated as under:

 The matter should be urgent and overwhelming.

 The other elements for the grant of temporary injunction order as explained in the Gujarat
Bottling case shall be existing.
 The court shall record reasons for the grant of exparte order.
 It is the duty of the applicant to serve a notice to the other party after the order has been
passed and such notice shall be coupled with a copy of the application, the plaint, the
affidavit and any other document which were filed in support of the application. Upon
serving such notice, the applicant shall on the same day of the order or on the next day
file an affidavit of his having served such a notice.
 Under Order XXXIX Rule 3A of the Code of Civil Procedure, 1908, it is a mandate for
the Court that after passing such an ex-parte order, it shall continue with the bi-parte
proceedings and shall dispose of the application within 30 days. However, the said 30
days period is not the upper limit for ex-parte orders i.e. the ex-parte order will not get

23
R. 3-A.
24
R. 4.

18
 automatically vacated upon the lapse of 30 days rather it can further be extended beyond
30 days in extreme cases.

The Hon'ble Supreme Court in Morgan Stanley Case25, inter alia observed the under mentioned
guidelines for grant of temporary injunction besides others:

 Where irreparable or extremely serious injury will be caused to the applicant, ex-parte
order can be passed;
 The court shall examine the time when the plaintiff got notice of the act complained;
 If the plaintiff has acquiesced to the conduct of the respondent then ex-parte temporary
injunction shall not be passed;
 The applicant shall be acting in utmost good faith; and
 Such an order shall be for a temporary period.

Recording of reasons: When the court purposes to grant ex parte injunction without issuing
notice to the opposite party, proviso to Rule 3 enjoins the court to record reasons. The
requirement of recording reasons is not a mere formality but a mandatory requirement.

Imposition of conditions: Even when the court is satisfied with the case of the applicant, and is
inclined to grant interim relief, it must consider the interest of the other side. The party at whose
instance interim order is passed, should be made accountable for the consequences of such order.
In appropriate cases, the applicant may be asked to furnish security for any increase in cost as a
result of delay or damage suffered due to such interim relief. “ Stay order or Injunction order, if
issued, must be moulded to provide for restitution.”

25
(1994) SCC 225.

19
Doctrine of Precedent: Interim orders have no precedential value and an applicant cannot
claim grant of interim relief on the ground that in similar matters interim relief has been
granted by the court.26 Judicial comity, however, requires that in similar matters, similar
interim orders should normally be made.27

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.

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

26
Empires Industries Ltd v.UOI (1985) 3 SCC 314.
27
Ibid.

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 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.

Temporary Injunction: Duration:

Temporary injunction granted by the court pendete lite (till the disposal of the suit) comes to
an end when the suit is finally decided. If the suit is dismissed, injunction is vacated. But even
if the suit is decreed, temporary injunction comes to an end. If the suit is for permanent
injunction, temporary injunction granted by the court is made perpetual or permanent as a part
of decree passed by the court.28
Status Quo: “Status Quo” means “existing condition” or “existing state of things” at any
given point of time. The relief of status quo is as good as an injunction. Hence, principles
relating to grant of injunction apply to grant of status quo also.29

Mandatory Injunction: In appropriate cases, temporary mandatory injunction can be granted

by a court but such relief can be granted only in exceptional and compelling circumstances
where injury complained of is immediate and is likely to cause serious prejudice to the
applicant which cannot be compensated in terms of money. In other words, mandatory
injunction at an interlocutory stage can be granted in rarest of rare cases.30

Non- Compliance with the Interim Order: An order passed by a competent court- interim
or final- has to be obeyed without any reservation. If the party against whom such order is
passed feels that it is not according to law, he can take appropriate steps to get it vacated,
modified or set aside. He, however, cannot refuse to obey such order. Intentional
disobedience of the direction of the court would constitute contempt of court.

28
Gangappa v. Boregowda, AIR 1955 Mys 91
29
Ibid.
30
Dorab Cowasji v. Coomi Sorab Warden, 1990 SCC 117.

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 Appeal: An order granting or refusing to grant injunction is subject to appeal.31 Where ex
parte relief is granted by the court and the application is not decided within thirty days, the
aggrieved party may prefer an appeal against such an order.

Revision: An order granting or refusing an injunction is a “case decided” within the meaning
of Section 115 of the Code and hence a revision lies against such an order.32

Breach of injunction: Rule 2-A

Section 94(c) and Rule 2-A of Order 39 provides for the consequences resulting from a
disobedience or breach of an order of injunction issued by the court. The penalty may be
either arrest of the opponent or attachment of his property or both. However, the detention in
civil prison shall not exceed three months and the attachment of property shall not remain in
force for more than one year.33 If the breach continues, the property attached may be sold and,
out of the proceeds, the court may award such compensation as it thinks fit to the injured
party.34

Injunction on insufficient grounds: Section 95

Where in any suit in which an order of temporary injunction has been obtained by the plaintiff
on insufficient grounds, or where the suit of the plaintiff fails and it appears to the court that
there was no reasonable or probable ground for instituting it, on application being made by
the defendant, the court may order the plaintiff to pay such amount, not exceeding fifty
thousand rupees, as it deems to be a reasonable compensation to the defendant for the expense
or injury including injury to the reputation caused to him.35
.

31
Or. 43 R. 1(r).
32
Ishardass Devi chand v. R. B. prakash Chand, AIR 1969 SC 398.
33
R. 2-A(1).
34
R. 2-A(2).
35
Section 95.

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 BIBLIOGRAPHY

Statutes Referred:
1. Code of Civil Procedure, 1908.
Books Referred:

1. C.K. TAKWANI, CIVIL PROCEDURE (5TH ED. (2ND REP.), 2005).

2. S. PAUL ET AL, MULLA’S THE CODE OF CIVIL PROCEDURE, 1908: VOL. II (16TH ED.,
2002).

3. Y. RAMA RAO, PRACTICAL GUIDE TO THE CODE OF CIVIL PROCEDURE CODE, (4TH ED.,
2004).

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