Every Sufferer Is A Saviour..

Tuesday, 31 December 2013

Know How to file civil suit of Injunction......

Under which section we can file Civil suit of Injunction:

Central Government Act
The Specific Relief Act, 1963

ACT NO. 47 OF 1963 An Act to define and amend the law relating to certain kinds of specific relief.

[ 13th December, 1963.]

37. Temporary and perpetual injunctions.-
(1) Temporary injunctions 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, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908 ).
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. CHAP PERPETUAL INJUNCTIONS CHAPTER VIII PERPETUAL INJUNCTIONS
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 right to, or enjoyment of, property, the court may grant a 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 a multiplicity of judicial proceedings.
39. Mandatory injunctions.- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
40. Damages in lieu of, or in addition to, injunction.-
(1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.
(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint: Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.
(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.
41. Injunction when refused.- An injunction cannot be granted-
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the
injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
42. Injunction to perform negative agreement.- Notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement: Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.
43. [ Amendment of Act 10 of 1940 .] Rep. by Act 56 of 1974 , s. 2 and Sch. I.
44. [ Repeal] Rep. by s. 2 and Sch. I, ibid.


Article on Temporary Injunction:

Under Indian 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.
In Agricultural Produce Market Committee Case1, 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."
The Hon'ble Apex Court through catena of judgments like landmark judgment in Gujarat Bottling Co. Ltd. Case2, held that the Court needs to follow certain guidelines while considering an application for grant of temporary injunction, some of which are briefly stated hereunder:
  • The applicant seeking relief of temporary injunction shall have to establish a prima facie case in his favour. For this purpose, the Court will not examine the merits of the case rather only the basic facts on which it is established that the applicant has a prima facie case to contest. Thereafter the applicant also has to establish that the allegations / averments made in the application on which the temporary injunction is sought are plausible.
  • The court will also examine the conduct of the applicant and such conduct needs to be examined even at the stage where the application for setting aside an order under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 is filed.
  • The court has to examine the balance of convenience i.e. the balance of comparative loss caused to the applicant and the respondent in the case of not passing the order.
  • The court will first of all will examine what is the extent of loss that would be caused to the applicant if the order is not passed and also whether it is reparable by monetary compensation i.e. by payment of cost. Then it will examine the loss suffered by respondent if the order is passed and thereupon it has to see which loss will be greater and irreparable. The party who would suffer greater loss would be said to be having balance of convenience in his favour and accordingly, the court will pass or refuse to pass the order.
  • The court has the power also to ask the party to deposit security for compensation or to give an undertaking for the payment of the compensation, if ordered.
It is to be understood that relief of temporary injunction cannot be sought for some right which would arise in future. Similarly, an injunction cannot be obtained to restrain a party from filing a suit. In Seema Arshad Zaheer Case3, 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."
However, in Best Sellers Retail India (P) Ltd. Case4, 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."
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 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 Case5, 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.


In view of the aforesaid, it can be concluded that grant of temporary injunction cannot be claimed by the party as a matter of right nor can be denied by the Court arbitrarily. However, the discretion to be exercised by the Court is guided by the principles mentioned hereinabove and depends on the facts and circumstances of each case. The party seeking relief not only has to establish prima facie case but also the irreparable loss that would be caused in case of denial to grant relief and that the balance of convenience lies in his favour. Thus rational behind the provision of Order XXXIX of the Code of Civil Procedure, 1908 as laid down by Hon'ble Supreme Court in the case of M. Gurudas and Ors.6, can be summarized as "While considering an application for injunction, the Court would pass an order thereupon having regard to prima facie, balance of convenience and irreparable injury".
1 Agricultural Produce Market Committee Vs. Girdharbhai Ramjibhai Chhaniyara – AIR 1997 SC 2674
2 Gujarat Bottling Co. Ltd. Vs. Coca Cola Co. – AIR 1995 SC 2372
3 Seema Arshad Zaheer & Ors. Vs, Municipal Corporation of Greater Mumbai & Ors. – (2006) 5 Scale 263
4 Best Sellers Retail India (P) Ltd. vs. Aditya Nirla Nuvo Ltd. – (2012 ) 6 SCC 792
5 Morgan Stanley Mutual Fund Vs. Kartick Das – (1994) 4 SCC 225
6 M. Gurudas and Ors. Vs. Rasaranjan and Ors. – AIR 2006 SC 3275
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: http://www.mondaq.com/india/x/257586/Civil+Law/LAW+OF+INJUNCTION+TEMPORARY+INJUNCTION

Few recent Case Laws:


Feb 5, 2013 - SUBJECT : CODE OF CRIMINAL PROCEDURE. CS(OS) ... decree of permanent injunction has been sought by the plaintiff so as to restrain the ... 28.9.2011 the defendant no.1 had abused the wife of the plaintiff with filthy ... owned by her parents-in-law and parents-in-law have no obligation to provide a ...


Pooja Jain vs Akhil Jain on 9 April, 2013 - Indian Kanoon

Apr 9, 2013 - Plaintiff filed suit for permanent injunction restraining the defendant from ... 1 and 2 of the Code of Civil Procedure cannot be exercised in favour of the plaintiff. 7. .... Thereafter, the wife lodged an FIR on 5.9.2012 against her husband. ... used to run away to his parents' house after picking up fight with her.

Unknown vs Parul Nahar & Anr on 5 February, 2013 - Indian Kanoon

Feb 5, 2013 - The Code Of Civil Procedure (Amendment) Act, 1956 ... the defendant no.1, her parents, agents, representatives, assignees, associates etc. from ... In prayer Para (b) instead of claiming permanent injunction the plaintiff has ... It is also the case of the plaintiff that he and his wife are living on the ground floor ...

 Searched and compiled 
 by ESIS


Friday, 27 December 2013



Best Article On Mutual consent Divorce (MCD)

Love is divine but freedom is not define: "All sufferers in Marital Life"

It's All about to end the dead Marriage by mutual consent.

"Divorce is probably of nearly the same date as marriage. I believe, however, that marriage is some weeks the more ancient."
- Voltaire, French philosopher (1694-1778)

Let Voltaire's wit help us relax our facial muscles with a smile, a grin or a loud laugh (you pick) before we talk about a difficult issue.

Unless you live in the west, where at times divorce terms are laid down before the marriage is solemnised, no one plans for it. Nonetheless, cases of divorce are fast rising even in countries such as India, where marriage is considered a sacred alliance for life.

"There is a definite and alarming increase in the rate of divorce in India, especially in Mumbai, Delhi, Bangalore and Pune. In Delhi, less than five judges handled divorce cases in 2005. Now, more than 15 judges handle such cases. The courts looking after divorce matters are extremely burdened with work," says Osama Suhail, associate partner, ANZ Lawz, a New Delhi-based law firm.

What should be done if marriage counsellors too fail to convince the husband and wife to patch up? To start afresh, many choose to settle through a mutual-consent divorce.

"Many couples realise that mutual divorce is the best option. This makes divorce less stressful by saving time, effort and money. By avoiding long litigation, couples can move on with their lives just after six months of filing for divorce," says Siddhartha Shah of Siddhartha Shah & Associates, a Mumbai-based law firm which specialises in divorce.

Divorce, an unexpected milestone
in a person's life, has a huge impact on the finances of those involved. "In mutual divorce, the husband and wife settle the financial separation aspects on terms that are acceptable to both. The mode and details of the settlement are in their own hands. A divorce settlement can include any or no asset and money. In the court, the partners just have to reaffirm the agreement," says Suhail.

Discuss Finances

Financial matters should not be muddled with the emotional aspects of separation . As a first step, even before discussing the financial aspects, understand your cash flow.

"Once you have decided to go for divorce, start preparing your household budget based on monthly income and expenses, including on child care and debt servicing," says Punit Gupta, regional business head (West), Fullerton Securities and Wealth Advisors.

"Knowing your expenses will help you start the process of reaching an amicable separation and clear your mind on what is the claim you want to make on your spouse for alimony and which assets you'll be able to maintain," says Gupta.

The next step is to sit across the table with your spouse and take account of all savings and assets.

"Before splitting your savings and assets, it is important to list them-be it house, car, retirement plans, life insurance policies, investments, cash, loans to others and household goods such as television and refrigerator," says Nitin Vyakaranam, founder and chief executive, ArthaYantra, a personal finance advisory company based in Hyderabad.

Then, jot down the market value of these assets and savings. To value your assets, you can seek help from a financial planner or a consultant. The division of assets and savings is based on the contribution made by each spouse if they fail to reach an agreement on how to divide them.

"Not just the assets, the liabilities should also be assessed. Existing loans should be looked at and decision taken on the basis of the contribution made by each. This is because a decision has to be taken if one person is willing to transfer the loan in his/her name or the asset is to be sold and earnings divided," says Vyakaranam of ArthaYantra.

Dividing Assets

Once you have listed the assets and liabilities along with their current worth , it is time to divide them. Though the law has provisions for husband's rights over the wife's property if he is unable to maintain himself, in India the husband is considered as the default breadwinner.

"One needs to see if the spouse is financially independent. If both are working, the husband might not have to pay for the wife's routine expenses. If the wife is not working, the husband might have to support her by paying a fixed sum periodically or making a one-time payment," says Sumit Vaid, founder, Ffreedom Financial Planners.

While dividing the assets, you must take into account the role played by each spouse. This is because one of you might be taking care of all the expenses while the other was contributing to the savings kitty.

"If the assets are skewed towards one partner, the same should be considered," says Vaid of Ffreedom Financial.

If the wife is not employed or does not earn enough to support self, she is entitled to alimony. This is true even when she earns but her income is not enough to support the same living standard as that of her husband.

"A wife, whether married or getting divorced, who is dependent on her husband is entitled to a maintenance amount. Her financial rights depend on the family's financial status and living standard, plus the husband's assets and liabilities," says Shah of Siddhartha Shah & Associates.

Child Care

Things become more complicated if the couple has children. For, in such a case, the priority of the settlement is to protect their interests. Irrespective of who gets the custody of children, both would ideally want to arrange for their welfare. Spouses can agree to a lumpsum payment or a staggered payment to the person who will get the custody of the child, either at different stages of his/her educational life or a monthly amount with incremental increase to factor in the rising cost of living.

A female
live-in partner has rights similar to a wedded wife if the couple has shared a relationship similar to marriage. If this condition is satisfied, she has the right to maintenance and residence.

"To secure the children's future, investments can be made in their name, and any/both parents can be the guardian. These will be transferred to the children after they attain adulthood," says Bimal Gandhi, chairman, Ameriprise India, a financial planning firm.

While planning for this, take into account the investments already made for children's education, health care and other expenses. If the parent who will take care of the children needs financial support, make sure the agreement mentions how the expenses will be shared.

"The partner who has to contribute to the children's expenses can do so through a lump-sum payout that can take care of all future expenses. Inflation, too, needs to be considered as education (and other) costs are going up at a very fast pace," says Vaid of Ffreedom Financial Planners.

A trust can also be set up. Trusts ensure distribution of income and assets according to the wishes of the settler (the parents). The assets are managed by the trustees for the benefit of the transferee (the children in this case) in accordance with the laid-down terms and conditions.

"In the event of a matrimonial discord, an irrevocable trust (a trust which exists until its mandate has been fulfilled) can be set up with the child as the beneficiary. The trustee can be a trustworthy law firm (or relatives) that can ensure that the benefits of the assets are passed on to the child," says Gandhi of Ameriprise.


After arriving at an understanding on how to share assets, liabilities and parental responsibilities, put everything in black and white. You will have to inform the court about the settlement while applying for divorce.

"You will have to prepare a separation agreement, which will serve as the framework for the divorce settlement. It should tackle all important issues related to separation such as alimony, child custody and splitting of assets and debts. Ensure that it is drafted and worded in such a manner that it gives both partners fair and equal rights," says Gupta of Fullerton Securities and Wealth Advisors.

In case you decide to share any liability or asset in the future, the agreement should mention it in detail, preferably with remedies in case one partner does not honour the agreement.

Before arriving at the agreement on financial aspects of separation, you must start the groundwork by updating the records of all financial assets. Retain the bills of assets held in your name. Keep photocopies of bills of assets held jointly if you do not have the originals.

Gupta makes another important point. "Get access to your partner's tax returns for the last eight years (in case any bank transaction has occurred between the two of you). It will help you answer any tax query raised by the authorities later," he says.

Moving On

The matrimonial discord should not affect your financial future. You must take steps to repair the damage it may cause to your financial plan.

"If you had a plan prior to the divorce, there are chances that you already know how much money you have earned and how much you have spent. Rewrite the plan on the basis of this," says Nirmal Rewaria, senior vice president, Edelweiss Financial Planning.

In the wake of changed responsibilities and risk profile, it makes sense to redefine financial goals at this stage. "Review longterm goals as some of them will not be valid now," says Gupta.

"Don't miss the goals you are already working on. Don't let them go under the emotional baggage of separation," he says.

If you have to pay alimony or meet children's expenses, you should make these priority and start saving for them immediately. A good option would be to open a separate account and set up an automatic debit from your savings account. This will ensure you don't default on alimony or childcare payments, which can trigger legal action against you.

Also, don't forget to change the will, if you have one. And, if your spouse was the nominee in your insurance policies, savings accounts, provident fund, etc, apply for a change.

Staying Clean

Keeping your finances and books in order while being married can help you understand your monetary situation better as well as limit the damage in case there is a marital discord by keeping money out of the arguments.

"Couples should write shared household expenses together and discuss how each expense will be taken care of. Once there is an agreement, revisit the monthly budget periodically to ensure that all the bases remain covered," says Gandhi of Ameriprise India.

You can choose to have joint accounts for savings and investments or opt for individual savings and investments. Joint accounts offer the comfort of assets and money being accessible to your spouse without any hassle even in your absence. As a middle path, you can choose to have individual as well as joint savings accounts and assets.

"Many couples settle on a compromise where they share an account for basic joint expenses and maintain separate accounts for personal expenses. The basic idea is to work out something that both are comfortable with," says Rewaria.

Irrespective of the ownership of investments and bank accounts, it is important to have a transparent record of money spent on collective household expenses and invested in common assets.

"In case both work, it is advisable to take a joint loan while buying a home or a car. This helps in saving tax. This makes division also easier," says Vyakaranam.

All joint and individual debts should be kept separate so that an agreement can prevent creditors coming after the other partner in the event of separation. "This will help the couple achieve their collective as well as personal goals while retaining individual financial freedom. In the event of separation, both shall have lien on personal investments and can distribute the joint investments amicably or as per the pre-nuptial agreement, if any," says Gandhi.

All said, marriages are based on trust and mutual understanding. Communicate your fears and concerns to your spouse to avoid any misunderstanding at a later stage.

Financial advice given by Ameriprise India

courtsey: http://businesstoday.intoday.in/story/how-to-plan-your-finances-when-getting-a-divorce/1/192717.html