INJUNCTION- AN EQUITABLE REMEDY

By S.Vaijayanthee

ABSTRACT

The justice system of Equity was introduced to resolve defects in the Common Law. Therefore, new remedies were incorporated in the legal system and injunction was one such legal remedy. Injunction is ordered by the Court to parties to refrain from doing, or to perform specific acts. An order of injunction should be passed with due care and caution while adhering to the guidelines provided by legislations and various judgments. There are various types of injunctions based on the status, facts and circumstances of the case. This article will deal with injunction as a legal remedy, its types, and the laws governing it.

“Equity will not suffer a wrong to be without a remedy.”

INTRODUCTION

Equity is a concept that the legal fraternity is well acquainted with. In its true sense, equity is defined as justice according to natural law or right or something that is equitable. This system of justice finds its origin in the England’s Court of Chancery and was one that made up for the defects of the common law. One such step towards resolving was the introduction of new remedies in the legal system. The main remedies introduced were injunctions, specific performance, rescission and rectification.

This article will deal with injunction as an equitable remedy in detail.

INJUNCTION

Injunction is defined as “an order by a court to one or more of the parties in a civil trial to refrain from doing, or less commonly to do, some specified act or acts.”

It is an equitable legal remedy provided by the Courts to parties who are aggrieved with an irreparable harm for which the damages cannot be monetized. Injunction is the remedy that is declared by the Court when there is no alternative remedy for the party.

PREREQUISITES FOR AN INJUNCTION SUIT

Usually,  parties to a suit, irrespective of whether it is the plaintiff or the defendant, can apply for an injunction against the other party.An injunction suit against a third party does not stand. While the granting of an injunction is being considered with the interest of the general public in mind, due care and caution is exercised by the Courts. Therefore while taking this prudent and judicial decision, the Hon’ble Supreme Court, in various judgments has laid down certain conditions to be followed. In the case of Gurudas &Ors. V. Rasarajan & Ors[1], it was held that the order of injunction should have regard to the prima facie case, balance of convenience and irreparable injury .The applicant has to make a prima facie case that there is irreparable harm and that monetary damage is not an adequate relief while applying for a suit for injunction. It was held that the basic principle with respect to grant of an order of injunction is to examine the need and right of the applicant with respect to that of the defendant’s and decide where the balance lies[2]. The balance referred to is the balance of convenience or that of comparative loss. While considering the balance, the extent of loss that would be incurred by the applicant if the order is not passed and the loss incurred by the Defendant in case the order is passed is examined.

Injunction can be granted for various cases such as prevention of pollution of public water, copyright infringement, domestic violence cases, child support etc. However, there can be no grant of an injunction order in case the agreement is with a minor.[3]

GENERAL LEGAL PROVISIONS GOVERNING INJUNCTION

Part III of the Specific Relief Act,1963 and Order XXXIX of Code of Civil Procedure,1908 provides for injunctions in civil cases while Code of Criminal Procedure,1973 provides for the grant of injunction in criminal cases.

Damages can be granted by the court in lieu or in addition to the order of injunction.[4] Section 41 of the Specific Relief Act,1963 enumerates circumstances when injunction can be refused. While Section 42 provides for a grant of injunction to perform a negative agreement.

TYPES OF INJUNCTION

 Injunction is a legal remedy and there are different types of injunctions granted by the Court depending on the status of the case, facts and circumstances.

TEMPORARY/ PRELIMINARY INJUNCTION

As per the Specific Relief Act,1963 , temporary injunction is a remedy regulated by the  Code of Civil procedure,1908(CPC) ,that may be granted at any stage of a suit and will continue until a specified time, or until further order of the court.[5]

The order of preliminary injunction, in practice, is issued at the preliminary stages or at any stage of a suit pending before the court.It is important for the applicant to establish a prima facie case in his favour. The order will be granted based on basic facts and not the merit of the case. [6] The main objective as to why an order of temporary injunction is granted as a provisional remedy is for the preservation of the subject matter that is in question before the court . A temporary injunction is granted if the party seeking an order has a concluded right, capable of being enforced by way of injunction. [7]

However, it is pertinent to note that the particular injunction does not in any way determine the merits of the case or the rights of the parties, rather it is issued when there is a need for immediate relief to prevent further injury or wrong from happening.

The Court in order to ensure that ends of justice is not defeated, may grant temporary injunction or make such other interlocutory orders as it deems just and convenient.[8] However, if in any suit a temporary injunction is issued and it appears that the institution of such a suit was based on insufficient grounds or that the applicant has failed to prove that there was no probable or reasonable grounds, the Court on application of the defendant , for the expense or injury incurred, award against the applicant a reasonable compensation to the defendant. Further, Order XXXIX provides for temporary injunctions and the procedure with respect to the grant of such remedy which was further amended by the U.P.Act No.57 of 1975 to include provisos in order to minimize and mitigate the hardships that the injured parties face when an injunction order is passed ex parte.

The apex court issued certain guidelines to be considered while granting an ex parte temporary injunction. The applicant acting in good faith, has to show that there will be an irreparable or severe injury for an ex parte order to be passed. However, in case the plaintiff has acquiesced the conduct of the defendant, an ex parte temporary injunction shall not be passed.[9]

PERMANENT/ PERPETUAL INJUNCTION

Section 37(2) of the Specific Relief Act,1963 describes perpetual injunction as a remedy that “can only be granted by the decree made  at hearing and upon the merit of the suit.” Permanent Injunction is granted as a final relief by the Court and the conditions enumerated in an injunction order remains permanent.

A permanent injunction is usually granted to a plaintiff who has filed a suit for breach of an obligation, implicit or explicit, in his favour and when an obligation is out of a contract, rules provided in Chapter II of the Specific Relief Act,1963 are invoked by the Court. 

In cases where the plaintiff’s right to enjoy his property is invaded, the court is empowered to grant permanent injunction when the defendant is the trustee of the property, the actual damage caused cannot be ascertained, monetary compensation would not amount to adequate relief and that granting of injunction is necessary to prevent multiplicity of judicial proceedings.[10]

MANDATORY INJUNCTION

Salmond defines Mandatory Injunction as “ an order requiring the defendant to do some positive act for the purpose of putting an end to a wrongful state of things created by him, or otherwise in the fulfillment of his legal obligations.”

The Specific Relief Act,1963 provides for mandatory injunction as a remedy provided by the court  at its discretion, to compel the performance of certain acts or to prevent breach of an obligation.[11]

The courts have to be very cautious in terms of granting a mandatory injunction as it has to be done only under exceptional circumstances. While in Hammad Ahmed v. Abdul Majeed [12] the apex court has stated that there is no prohibition in granting interim mandatory injunction in appropriate cases, it has also laid down guidelines for grant of interim mandatory injunctions to take proper safeguards. The plaintiff should approach the court with a strong case that shall be of a standard higher than a prima facie case. In addition to this, it should be proved that there has been an irreparable loss that cannot be compensated monetarily and that the balance of convenience is in the favour of the applicant.[13]

To re emphasize the importance of exercising caution in granting such injunction, it was held that it should not be issued on asking rather only on the basis of the strong case made by the applicant to protect his rights and not frustrate it.[14]

An interlocutory mandatory injunction is granted to restore or preserve the non-contested status that preceded the present case pending before the court until the final order is passed.

HE WHO SEEKS EQUITY MUST DO EQUITY.

Injunction is an equitable remedy that considers the rights of both parties and seeks to protect them. Therefore, the law governing injunctions, through legislations and various judgements have provided various guidelines and conditions to be followed while issuing an order for injunction to emphasize the significance of the care and caution to be exercised. The principle of ‘finality of litigation’ cannot be imposed forcefully such that it promotes fraud in the hands of dishonest litigants. There remains a high possibility that litigants misuse and defeat the purpose of injunction orders for their own personal satisfaction and law cannot be a guardian to the whims and fancies of those dishonest litigants. Therefore, an applicant seeking a grant of injunction should approach the court with clean hands in addition to proving the three prerequisites.

It is important that the party against whom an injunction is filed also respects the order and carries out the necessary conditions ordered by the Court. For,failing to adhere to an order of injunction amounts to civil contempt of court.[15]

CONCLUSION

It is pertinent to note that, in spite of all the guidelines that have been laid down,  the grant of injunctions should not be rigid. Rather, it must be flexible to the extent where it can accommodate unprecedented circumstances as it is important for law to be as dynamic as the ever evolving society. Therefore, while exercising due care and caution the courts should also be flexible enough to conduct a case on case analysis before granting or refusing an order of injunction. For, no one should be deprived of remedies for the infringement or invasion of their guaranteed rights. This will ensure that justice is delivered in its true sense and the principle of equity is upheld.


[1] AIR 2006 SC 3275.

[2] Colgate-Palmolive(India) Ltd. v. Hindustan Lever Ltd., AIR 1999 SC 3105.

[3] The Indian Contracts Act,1872 Sec.11,12.

[4] The Specific Relief Act,1963 Sec.40.

[5] The Specific Relief Act,1963 Sec. 37(1).

[6] Gujarat Bottling Co. Ltd. v. Coco Cola Co., AIR 1995 SC 2372.

[7] Agricultural Produce Market Committee v. Giridharbhai Ramjibhai Chaniyara, AIR 1997 SC 2674.

[8] Code of Civil Procedure,1908 Sec.94.

[9] Morgan Stanley Mutual Fund v. Karthick Das,(1994) 4 SCC 225.

[10] The Specific Relief Act,1963 Sec.38.

[11] The Specific Relief Act, 1963 Sec.39.

[12] Civil Appeal No.3383 of 2019.

[13] Dorab Caswaji Warden v. Coomi Sorab Warden, AIR 1990 SC 867.

[14] Samir Narain Bhojwani v. Arora Properties and Investments, Appeal(Civil), 7079 of 2018.

[15] The Contempt of Courts Act Sec.2(b).

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