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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
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.

Conclusion

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".
Footnotes
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



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