Temporary and Perpetual Injunctions – Section 37 | Specific Relief Act



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As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of ex parte injunction are:

(a) Whether irreparable or serious mischief will ensue to the plain­tiff;

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(b) Whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) The Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented:

(d) The Court will consider whether the plaintiff had acquiesced for some time and in such circumstances it will not grant ex parte injunction.

(e) The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) Even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.”

2. Alternative remedy:

Where alternative remedy is available, tempo­rary injunction cannot be granted in such a case.

3. Binding effect of:

An order even though interim in nature is bind­ing till it is set aside by a competent Court and it cannot be ignored on the ground that the Court which passed the order had no jurisdiction to pass the same.

4. Disobedience of order:

A party proceeded against under order XXXIX, Rule 2 (3) C.P.C. for disobedience of an order of injunction cannot be held to have wilfully disobeyed the order provided two conditions are satisfied:

1. That the order was ambiguous and was reasonably capable of more than one interpretation;

2. That the party being proceeded against in fact did not intend to disobey the order but conducted himself in accordance with his interpretation of the order.

5. Electricity bill:

While granting stay of electricity bill, normally at least half of the amount should be directed to be deposited.

6. Grant of injunction:

Where the Company generated electricity and fed to GRID Corporation and the Corporation had to supply electricity to the plant of the Company in terms of agreement and the Company failed to pay the dues and notice was given, grant of injunction by which the GRID Cor­poration was required to maintain back up power to constituents of Com­pany but for supply the latter was not required to make any payment ….the power consumed, it was held to be not proper and Company was permitted to make payments in instalments.

7. Informa pauperis:

Their Lordships of the Supreme Court while con­sidering the aspect in relation to Order I, Rule 10 C.P.C. held:

“An application to sue informa pauperis is but a method prescribed by the code for institution of a suit by a pauper without payment of fee prescribed by the Court Fee Act. If the claim made by the appli­cant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit com­mences from the moment an application for permission to sue informa pauperis as required by Order XXXIII of the Code of Civil Procedure is presented and Order I, Rule 10 of Code of Civil Procedure would be as much applicable in such a suit as in a suit in which Court fee had been duly paid.”

8. Inherent jurisdiction:

The Court has inherent jurisdiction to grant temporary injunction even in circumstances which are not covered by the provisions of Order XXXIX, C.P.C. in the interests of justice.

9. Injunction against Bank guarantee:

An injunction against enforce­ment for Bank guarantee should not be ordinarily granted unless specific plea of fraud in execution of contract of guarantee or irretrievable injustice is likely to occur special equity being in favour of plaintiff.

10. Injunction:

Plaintiff can invoke the provisions of Order XXXIX, Rule 2 C.P.C. even after judgment since the words “or other kind of injury” cover such case.

Rule 3-A of Order XXXIX, does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal 1 merely because it was not restricted to a period of thirty days or less. Rule 3-A of Order XXXIX casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First is that the Court is obliged to give him notice before passing the order.

It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can bypass such a rule in which cases the Legislature mandates on the Court to have adequate reasons for such by-passing and to record those reasons in writing.

If that hump is also by-passed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. In a case where the mandate of Order XXXIX, Rule 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant ox vacation of a temporary injunc­tion, against the order remaining in force. In such appeal, if preferred, the appellate Court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate Court in complying with the provi­sions of Rule 3-A.

Suit for permanent and mandatory injunction was filed by agent of kerosene/L.D.O. Seeking relief that I.B.P. Company be restrained from ter­minating his agency. Suit liable to be dismissed because it was found that Government had decided to withdraw that scheme under which plaintiff was appointed agent.

11. Interference:

An irrevocable letter of credit has a definite implica­tion. It is a mechanism of great importance in international trade. Any inter­ference with that mechanism is bound to have serious repercussions on the international trade of this country. Except under very exceptional cir­cumstances, the Courts should not interfere with that mechanism.

It is the well-known principle that the letter of credit is independent of and unqualified by the contract of sale or underlying transaction. The au­tonomy of an irrevocable letter of credit is entitled to protection. As a rule Courts refrain from interfering with that autonomy.

12. Interim relief:

In this case the appellant filed a suit for specific performance of the agreement and also filed two applications for interim relief. By the first, he sought an interim injunction restraining the defendants-respondents from proceeding with the production of the film and from transferring and/or assigning the rights of the appellant under the agreement to any other person. By the second application, he sought to restrain the respondents from carrying on with the production or exhibition of the picture without the participation and/or involvement of the appellant as one of the producers.

However, before these interim reliefs could be obtained, the respon­dents completed the production of the film. Therefore, when the applica­tions for interim relief came on for hearing, the appellant confined his claim only to a three-second display, in the “credit-titles” of the serial, of his name as a “co-producer”. This relief was not granted to him by the learned single Judge on the original side and an appeal by him to a Division Bench was also unsuccessful.

The appellant has frankly stated before the High Court as well as before this Court that he was net interested in pursuing the claim for specific per­formance or damages if only the respondents would make a public ac­knowledgment (if not that he was a co-producer) at least that he had played a part in making the film possible. He has assured that, if this relief is granted to him, he would even be prepared to withdraw the suit itself.

There is no doubt that, whether there was a concluded contract as claimed by the appellant or not, the appellant did play some part in making the film possible arid that the respondents are acting unreasonably in deny­ing him the benefit of the limited acknowledgement he is entitled to have.

Therefore, restricting the scope of the interim relief it is directed, in the interests of justice, that in case the film is proposed to be, or is, exhibited either on the Ò. V. or in any other medium in India, it shall not be so exhibited by the respondent or their agents unless it carries, in its title shots, an acknowledgement of the services rendered by the appellant to the produc­ers in some appropriate language.

13. Issuance of:

An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well settled that in such a case the party must have knowledge of the injunction order before it could be penalized for disobeying it and it is equally well settled that the injunc­tion order not being addressed to the Court, if the Court proceeds in contra­vention of the injunction order the proceedings are not nullity. In the case of a stay order as it is addressed to the Court and prohibits it from proceed­ing further, as soon as the Court has knowledge of the order it is bound to obey it and if it does not, it acts illegally and all .proceedings taken after the knowledge of the order would be a nullity.

14. Jurisdiction of Court:

Where the Court issued interim injunction but subsequently it was found that it had no jurisdiction to entertain suit, person disobeying such injunction can be punished under Rule 2-A of Or­der XXXIX, C.P.C.

15. Lawful possession:

The Supreme Court while holding that a ten­ant on the expiry of the lease cannot be said to continue in “lawful posses­sion” of the property if such a possession is not-otherwise statutorily protected, however, observed:

“…Section 6 of the Specific Relief Act does not offer such protec­tion, but only, as stated earlier, forbids forcible dispossession, even with the best of title.”

16. Letter of credit:

The Court usually’ refrain from granting injunc­tion to restrain the performance of the contractual obligations arising out of a letter of credit or a Bank guarantee between one Bank and another and hence there cannot be any justification in granting temporary injunction to restrain performance of contractual obligations arising out of a letter of credit of Bank guarantee since the effect of such an order will be virtually restraining a transaction between a banker and a banker.

17. Mandatory injunction:

Where the plaintiffs filed a suit for the re­liefs of permanent injunction and mandatory injunction the dispute interse between the three plaintiffs was held to be immaterial to view of the amend­ment and further, it was held that so far as defendants were concerned the question of title of plaintiffs inter se was not at all relevant.

18. Necessity of:

Recording of satisfaction of the Court is essential before granting temporary injunction.

19. Perpetual injunction:

Where suit for perpetual injunction for re­straining ‘A’ from interfering with possession of was filed by auction- purchaser, order issuing injunction held not erroneous.

20. Power of Court:

Where a Court is empowered by state to issue an injunction against any defendant, even if the defendant be a state the pro­vision would be frustrated and the power rendered ineffective and unmean­ing if the machinery for enforcement specially enacted did not extend to everyone against whom the order of injunction is directed and from the critical examination of the phraseology of Order XXXIX, Rule 2 (3), the obligation on the part of the state to obey the injunction and be proceeded against for disobedience if it should take place would appear to follow by necessary implication.

21. Power to Grant:

It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from Order XXXIX, Rule 1. In fact, they said rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order XLIII, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the ex parte order for any relief.

22. Relief of declaration and injunction:

The relief of declaration and injunction under the provisions of the Specific Relief Act is purely discre­tionary and the plaintiff cannot claim it as of right. The relief has to be granted by the Court according to sound legal principles and ex debito justitiae.

The Court has to administer justice between the parties and can­not convert itself into an instrument of injustice or an engine of oppression. While exercising its discretionary powers the Court must keep in mind the well-settled principles of justice and fair play and should exercise the dis­cretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum.

23. Suit for injunction:

Where principle of possessory title and prin­ciple of injunction to protect long continuous possession was ignored by Appellate Judge, Appellate Judgment was held vitiated.

24. Sustainability of:

Where the trial Court and the appellate Court concurrently held that appellant was in possession of the property High Court reversing the findings of the Courts below was held to be unsustainable.

25. Temporary injunction:

An interim relief can be granted only in aid of the relief prayed for in the suit.

26. Word “leave”—Meaning of:

According to the plain meaning, the word ‘leave’ in relation to an employee, should be construed to mean where he “voluntarily” leaves i.e., of his own volition and does not include a case of dismissal. The word ‘leave’ appears to connote voluntary action, and is synonymous with the word ‘quit’. It does not refer to the expulsion of an employee by the act of his employer without his consent and against his remonstrance. That is a meaning in consonance with justice and fair play. It is also the ordinary plain meaning of the word ‘leave’—”to depart from, quit, relinquish, to quit the service of a person.

27. Words “any may also”—Interpretation of:

In a case before Su­preme Court it was observed that:

“The words “any may also” in Rule 2-A cannot be interpreted in the context as denoting to a step which is permissible only as additional to attachment of property of the opposite party. If those words are interpreted like that it may lead to an anomalous situation. If the person who defies the injunction order has no property at all the Court becomes totally powerless to deal with such a disobedient party. He would be immuned from all consequences even from any open defiance of a Court order. No interpretation shall be allowed to bring about such a sterile or anomalous situation. It is open to the Court to attach the property of the disobeying party and at the same time the Court can order him to be detained in civil Prison also if the Court deems it necessary. Similarly the Court which or­ders the person to be detained in civil Prison can also attach the property of that person. Both steps can be resorted to or one of them alone need be chosen. It is left to the Court to decide on consideration of the fact situation in each case.”

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