An injunction is a court’s order that requires a person to do or abstain from doing an act that is necessary and the absence of which would be contrary to good faith and good conscience.
The object of injunction is to preserve the ends of justice and of subject matter.
Kinds of Injunction
By type of nature, injunctions are two kinds:
i) Prohibitory Injunctions: Prohibitory Injunction is an order of the court prohibiting a person from doing an act.
ii) Mandatory Injunctions: Mandatory Injunction is an order of the court directing a person to do an act.
By time duration, Injunctions are two kinds.
i) Temporary Injunction: Temporary Injunction is an Injunction which continues for specified time or until further orders.
ii) Permanent or Perpetual Injunction: Permanent Injunction is an injunction which continues forever.
The English proverb, “Prevention is better than cure” is very much suitable, in one way for law of injunctions. Prohibitory injunction deals with prevention whereas mandatory injunction deals with cure. There are A and B, two persons and they have house-sites side by side. B attempted to trespass the site of A. Then, A files suit and prevents B from trespass. If B trespassed the site of A and got constructed a wall in the site of A, A has to file suit for mandatory injunction for removal of the said wall besides recovery of possession and declaration of title if necessary. If B is properly prevented by prohibitory injunction at earlier point of time, A has no necessity to go for mandatory injunction. So, prohibitory injunction deals with preventive measure whereas mandatory injunction deals with curative measure.
Temporary injunction or interim injunction restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further orders of the court. It is regulated by the provisions of Order 39 of the Code of Civil Procedure, 1908 and may be granted at any stage of the suit. It remains in force till disposal of the suit or until it is revoked and ad interim temporary injunction remains in force till disposal of the petition for temporary injunction or until it is revoked .The provisions of temporary injunction as well as ad interim temporary injunction is contained in Order 39 of the Civil Procedure Code.
Grounds for granting Temporary Injunction
The grounds for grant of temporary injunction is given under O 39 Rule 1 of CPC which are as follows:
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 defrauding his creditors,
(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit
Principle Governing Injunction
The case of Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC 719 lays down the principle governing injunction which are as follows:
- Whether the plaintiff has a prima facie case?
- Whether the balance of convenience is in favour of the plaintiff?
- Whether the plaintiff would suffer an irreparable damage, if the injunction is not granted?
Temporary Injunction can be temporary prohibitory injunction or temporary permanent injunction. Generally speaking temporary injunctions are temporary prohibitory.
Temporary Prohibitory Injunction
Generally the injunction issued under O 39 is in nature of temporary prohibitory nature because a person is restrained from wasting, damaging or alienating the property of subject.
Temporary Mandatory Injunction
Temporary Mandatory Injunction or ad interim mandatory injunction is granted in a very rare circumstance. Law relating to interim reliefs defines a mandatory injunction or direction to mean an order permitting a person or organisation to carry out a specific act.
Halsbury state the following, in his 4th Edn., on mandatory injunctions. It is stated:
- Mandatory injunctions on interlocutory[interim] applications.—A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.
In case of Nandan Pictures Ltd. v. Art Pictures Ltd., AIR 1956 Cal 428 at pp. 429-30, para 4. Chakravartti, J.23 very succinctly laid down the law on mandatory injunctions. He said:
“4… it is only in very rare cases that a mandatory injunction is granted on an interlocutory application and instances where such an injunction is granted by means of an “ad interim” order pending the decision of the application itself are almost unknown. I do not wish to say, because it is not necessary for the purposes of this case to say so, that in no circumstances will the court have any jurisdiction to issue an ad interim injunction of a mandatory character pending the disposal of an application for an injunction. Injunctions are a form of equitable relief and they have to be adjusted in aid of equity and justice to the facts of each particular case. No court, therefore, ought to lay down absolute propositions when such are not necessary and forge fetters for itself. At the same time, I may point out what the accepted principles have been and what has been, according to the reported cases, the practice of the courts. It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted.”
This view had been accepted by the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden. It held:
- 16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
Perpetual Injunction or permanent Injunction is an injunction which continues forever.
Essential features of Perpetual Injunction:
- Prohibitory direction forever.
- Such direction is by court in a decree on merits.
- Such direction must refrain the defendant from doing an act.
- Such act should be contrary to the right or interest of the plaintiff
Object of perpetual injunction:
The object of perpetual injunction is to restrain an action or interference of some kind to protect the right of a person. In other words, it is a protection for the future and not punishment for the past transaction. It aims to protect future damage and it does not punish the wrongdoer. The object of perpetual injunction is preventive, but not punitive.
Grant of perpetual injunction
How perpetual is granted and what is the nature of perpetual are explained in section 37 of Specific Relief Act. When perpetual can be granted is very important question. Section 38 of Specific Relief Act answers for this question.
Section 38: Perpetual Injunction when granted:
(1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s rights or enjoyment of property, the court may grant perpetual injunction in the following cases namely,
(a) Where the defendant is trustee of the property for the plaintiff,
(b) Where there exists no standard for ascertaining the actual damage caused or likely to be caused by the invasion,
(c) Where the invasion is such that compensation in money would not afford adequate relief,
(d) Where the injunction is necessary to prevent multiplicity of the judicial proceedings.
Rights and duties are foundation for perpetual injunction.
They arise out of contracts and torts. Section 38(1) and (2) SRA deal with granting of injunction in cases arising out of contracts. Section 38(3) deals with granting of injunction in cases arising out of torts.
Perpetual injunction in case of breach of obligation:
The plaintiff claiming perpetual injunction has to establish breach of an obligation existing in his favour or infringement of his legal right. Where the plaintiff fails to prove breach of obligation existing in his favour, he cannot get perpetual injunction. The plaintiff must establish his right and he must establish actual or threatened invasion of said right by the defendant against whom he wishes to claim injunction. Breach of obligation gives raise cause of action for the relief of injunction.
Perpetual injunction in case of invasion or threatened invasion of legal right:
The court can grant the relief of injunction in case of invasion or threatened invasion of rights of plaintiff. Before granting injunction, court must find the existence of such right and its invasion or threatened invasion. Unless there is actual invasion or threatened invasion to the right, injunction cannot be granted. The court is competent to grant perpetual injunction in case of invasion or threatened invasion of right of a person in the circumstances enumerated under clauses (a) to (e) of Section 38 of Specific Relief Act. Court cannot grant injunction in every case of violation of the right of the plaintiff and court shall look into the circumstances and real necessity. The plaintiff shall make out clear case for obtaining injunction. Mere apprehension is not sufficient to grant injunction.
Other Kinds of Injunction
- Anton Pillar Injunction
The Anton Piller order is a form of discovery preservation granted on ex parte application. It can comprise of an injunction to restrain infringement, permission to enter defendant’s premises to inspect documents and remove originals or copies of the originals, permission to remove allegedly infringing goods, and an injunction to restrain defendant from disclosing contents of the injunction to third parties for a specified period.
In Anton Piller KG v Manufacturing Process, Lord Denning and Lord Ormrod laid down both substantive standards for granting the order and service requirements accompanying the order.
In India, Ashok Kr Ganguly J in case of Bucyrus Europe Ltd v Vulcan Industries Engineering Co Pvt Ltd, observed that an Anton Piller order can be passed in the following situations:
(a) Where the plaintiff has an extremely strong prima facie case,
(b) Where the actual or potential damage to the plaintiff is very serious,
(c) Where it was clear that the defendant possessed vital evidence, and
(d) There was a real possibility that the defendant might destroy or dispose of such material so as to defeat the ends of justice,
(e) The purpose of Anton Piller order is the preservation of evidences.
- Mareva Injunction
Mareva Injunction is a type of temporary injunction granted against the defendant. It is like a ‘freezing order’. In this type of injunction, the Court freezes the property of the defendant so that he does not sell the property or run away. It can be issued even if the person is outside the jurisdiction of the court. Mareva injunctions cannot merely be used to put pressure on the defendant as, it will lead to abuse of power. It is generally given to the plaintiff without hearing the defendant (ex parte) This injunction does not make the plaintiff the owner of the property.
This injunction was first applied in England in the case of Mareva Compania Naviera S.A. v. International Bulk Carriers S.A. It was introduced as the other remedies were not enough to deal with cases where the defendants were determined to run away.Indian Courts have sourced this power from section 151 CPC.
‘Ashok Kumar’ or a ‘John Doe’ Injunction
It is an order in a suit brought against unknown and unnamed defendants, to counter the possibility that someone, somewhere, may possibly be infringing upon the rights of the plaintiff. Ashok Kumar orders have become the go-to tool for overzealous plaintiffs seeking copyright protection from the Court in respect of online infringement, by claiming the difficulties in identifying the infringing parties.