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Wednesday 1 January 2014

Some more insights on suit of Injunction & provision of it's jurisdiction

LAW OF INJUNCTIONS

Justice R. R. K. Trivedi

Judge,

Allahabad High Court

The law of injunction in India has its origin in the Equity Jurisprudence of England

from which we have inherited the present administration of law. England too in its turn

borrowed it from the Roman Law wherein it was known as Interdict. The Roman Interdi

cts

were divided in three parts, prohibitory, restitutory and exhibitory. The prohibitory Interdict

corresponds to injunction. The injunction as a chancery remedy developed at the time of

Henry, the Vlth. The Chancellor set aside a certain bond by the plai

ntiff as one not binding

on him. The Court of Common Pleas, however, gave a decree with bond. Chancellor

thereupon devised the remedy of injunction by which he prohibited execution of the decree of

Common Law Court. This exercise of power by issuing injunc

tion by the Chancery Court was

viewed with jealousy by the Common Law Court and it became a source of conflict between

the two jurisdictions. This conflict rose to the climax between the Lord Justice Coke and Lord

Chancellor Ellesmere in 1816. A decree was

obtained from Lord Coke by practising gross

fraud. The Chancellor thereupon by an injunction perpetually enjoined the decree

holder

from proceeding to execute his judgment. The validity of this procedure of issuing injunction

was seriously questioned. The

matter was referred to Bacon, the then Attorney General and

other counsel, who finally settled the question in favour of Chancellor. The jurisdiction to

issue injunctions was thus affirmed and the remedy which is termed as the strong arm of the

Courts of

equity has contributed a lot to consolidate the position of the judiciary in

dispensing justice between the litigant parties.

From the aforesaid historical background it is manifest that the origin of the power to

grant injunction is from equity, hence th

e exercise of the discretion by the Courts is to be

governed mainly by equitable considerations. In our country in Criminal matters Sections

133, 142 and 144 of the Code of Criminal Procedure deal with grant of injunction. In Civil

matters the law relating

to grant of injunction is contained in Chapter VII of Part III of the

Specific Relief Act, 1963. Sections 36 to 42 deal with the grant of injunction. It has been

termed as a prever1tive relief which is granted at the discretion of the Court by injunction

which may be temporary or perpetual. Section 37(1) of the Specific Relief Act, 1963 deals

with the temporary injunctions which are such as are to continue until a specified time, or

until further orders of the Court, and they may be granted at any stage of

the suit or

proceedings and are regulated by the Code of Civil Procedure. From the aforesaid it is clear

that there can be permanent injunction which is granted as a final relief in the suit and there

can be temporary injunction which may be passed at any

situation of the suit or proceedings

for preservation of the property. Both have to be discussed separately.

Permanent Injunction:

As is clear from Section 37 (2) of Specific Relief Act, 1963 (hereinafter referred to as

the Act), a perpetual injunction

can only be granted by the decree made at the hearing and

upon the merit 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 right of the

plaintiff. Sec

tion 38 of the Act further provides the circumstances where the perpetual

injunction may be granted in favour of the plaintiff to prevent the breach of an obligation

4YFPMWLIH MR -RWXMXYXI W .SYVREP 1EVGL

existing in his favour, whether expressly or by implication. In contractual matters when s

uch

obligation arises, the Court has to seek guidance by the rules and provisions contained in

Chapter II of the Act dealing with specific performance of contracts. Sub

Section (3) of

Section 38 in clauses (a), (b), (c) and (d) further illustrates the cir

cumstances where a

perpetual injunction may be granted by the Court. The mandatory injunctions are

contemplated under Section 39 of the Act where it is necessary to prevent the breach of an

obligation and the erring party may be compelled to perform certai

n acts. Section 40 provides

for granting damages in lieu of or in addition to injunction. Section 41 provides

circumstances where the injunction should be refused. Section 42 provides for grant of

injunction to perform a negative agreement. It was made cle

ar at the beginning that the Law

of Injunction is vast and expansive jurisdiction and It forcefully illustrates the power of

equity in spite of the fetters of codification to march with the times and adjust the beneficial

remedies to altered social conditi

ons and the progressive needs of the humanity. The first

Specific Relief Act was codified in the year 1877 which was replaced by the Specific Relief

Act of 1963 (Act No.47 of 1963). In spite of the codification the law of injunction continued

to expand and

it fulfilled the needs of the society in different shapes

and forms. The

codification of the law has never proved a fetter. In this context, a Civil Court should never

have any hesitation in granting injunction to new circumstances and situations. Our s

ociety is

a progressive society, our country is a developing country and with the growth of the industry

one may be called upon to administer law of injunction to various kinds of new situations

which were wholly unknown to this field earlier. The essentia

l test should, however, remain

equity. In this context the views expressed by the Courts and Jurists may be gainfully quoted

here :

"It is the duty of a Court of Equity," said Lord Cot ten hem in Taylor v. Selmon, (and

the same is true of all Courts and i

nstitutions),

"to

adopt its practice and course of

proceedings, as far as possible, to the existing state of society and to apply its jurisdiction to

all those new cases which from the progress daily made in the affairs of men must continually

arise and no

t from too strict an adherence to forms and rules established under very different

circumstances decline to administer justice and to enforce rights for which there is no other

remedy."

Similarly, the view expressed by the great jurist Shri Banerjee in Ta

gore Law

Lectures as far back as in 1906 may be remembered by us as a good guide even today in this

field of law. Banerjee said: ‘Since an obligation includes every duty enforceable by law this

form of specific relief, it would appear, is applicable to all

cases where one person can

enforce a duty against another, or to use the correlative term, where one person is vested with

a right which empowers him to constrain the other to adopt a particular line of conduct, or to

do or abstain from doing a particular

act. This right mayor may not arise out of a contract,

and the remedy of injunction, by which preventive relief is granted by a Court, may be held

to be available throughout the whole range of the law, But the jurisdiction is carefully defined

in part Ill

, Specific Relief Act, and to some extent circumscribed. It still remains, however, a

vast and expansive jurisdiction, and forcibly illustrates the power of equity, in spite of the

fetters of codification, to march with the times and adjust the beneficial

remedies to altered

social conditions and the progressive needs of humanity.'

Mr. H.C. Joyce also in his Law of Injunctions has expressed identical views. He says,

‘As a remedy for preventing wrongs and preserving rights, the injunction has been regarded

s more flexible and adjustable to circumstances than any other process known to law. The

correctness of the estimate is seen in the readiness with which injunctions yield to the

convenience of the parties, the case with which damages are substituted in the

ir place when

justice and public interest so require, the facility with which a preventive and a mandatory

injunction are made to co

operate so that by single exercise of equitable power an injury is

both restrained and repaired, and the facility with whic

h injunctive relief can be applied to

new conditions and adjusted to the changing emergencies of modern enterprise. In this

connection it may be declared that as writ of injunction my be said to be a process capable of

more modification than any other in t

he law, it is so malleable that it may be moulded to suit

the various circumstances and occasions presented to a Court of Equity. It is an instrument in

its hands capable of various applications for the purpose of dispensing complete justice

between the pa

rties. It may be special, preliminary, temporary or contracted, in short it is

adopted, and is used by Courts of Equity, as a process for preventing wrong between, and

preserving the rights of parties in controversy between them...so, where, too, if a part

y cannot

at once comply with an injunction without being put to great expense or grievous annoyance,

the Court may order that the injunction do not commence until after a certain stated period.

Injunction should not be denied on the ground of its novelty i

n application, if the exigencies

of the situation required it and if it does not militate against statutory provision. The Courts

should act according to justice, equity and good conscience, when there is no specific rule

applicable to the circumstance of

the case."

Once the aforesaid basics of this equity jurisdiction become clear, there may not be

any difficulty in its application to various situations

One may be called upon to grant

injunction in various kinds of disputes which may be commercial non

commercial, marital,

non

marital, encroachment over civil rights etc. The list of these situations cannot be given

here. A civil dispute calling for a preventive relief may come before one in any shape and

then one may be guided by principles of equity, ju

stice and good conscience in granting

relief. The hesitation should not be there when equitable consideration demand and justify it.

Temporary Injunction:

So far as the grant of temporary injunctions Is concerned, it used to be a small step

during the pr

ogress of the suit or proceeding towards the preservation of its subject matter

which could be property or any other right has now gained enormous importance and

sometimes it becomes even more important than the final result of the suit or proceedings

with

the change of the time. The society in general and Judiciary in particular is passing

through a very trying time where the moral values are at their lowest ebb and there does not

appear any prospect of coming them up in near future. The dilemma of the Jud

icial Court or

Tribunal is that initially it has to treat the truth and falsehood at par and has to give the same

treatment, protection and hearing until it concludes its investigation to find out which is right

or wrong, false or true. This process takes

a long time during which by some interim measure

the subject matter of the dispute between the parties has to be preserved, and it is this anxiety

for preservation of the property on the part of the Judicial Court, which is misused and

abused by the side w

hich has come before the Court with a wrong or false case or a doubtful

case which had been filed only to take a chance. This category of the unscrupulous litigant

once succeeds in obtaining the interim injunction in their favour, they try to prolong

proce

edings and cause irreparable damage and harm not only to their opposite side but also to

the reputation and faith of the public on Courts. Hence, it is high time that the Courts at all

levels should be very cautious, alert and vigilant while granting tempo

rary injunction during

progress of the suit or proceeding

Section 37(1) of the Specific Relief Act, 1963, deals with the temporary injunctions

which are such as are to continue until a specified time or until further orders of the Court and

they may be g

ranted at any stage of the suit or proceedings and are regulated by the Code of

Civil Procedure

Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the

Court may in order to prevent the ends of justice from being defeated, gr

ant a temporary

injunction or make such other interlocutory order as may appear to the Court to be just and

convenient. Section 95 further provides that where in any suit a temporary injunction is

granted and it appears to the Court that there were no suff

icient grounds, or the suit of the

plaintiff falls and it appears to the Court that there was no reasonable or probable ground for

instituting the same. The Court may on application of the defendant award reasonable

compensation which may be to the extent

of the pecuniary Jurisdiction of the Court trying the

suit. The procedure with regard to the grant of temporary injunction and interlocutory orders

has been provided in Order 39 of C.P.C., as far as this State is concerned, drastic changes

were brought abo

ut by amending the provisions contained in Order 39 by U.P. Act No. 57 of

1976. In Sub

Rule (2) of Rule 2 of Order 39, a proviso was inserted by which power of the

Court to grant injunction was taken away in certain matters. Further a proviso was added in

Rule 3 which provided that where it is proposed to grant an injunction without giving notice

of the application to the opposite party, the Court shall record the reasons for its opinion that

the object of granting the injunction would be defeated by the de

lay and require the applicant

to serve the copy of the order of injunction along with copy of the application, affidavit,

plaint and other documents relied on by him. Further, he has also been required to file on the

same day on which the injunction is gra

nted, an affidavit stating that the requirements

contained in Proviso (a) have been complied with. Rule 3(e) further contains a very important

provision which requires the Court to make an endeavour to finally dispose of the application

within 30 days from

the date on which the Injunction was granted and where it is unable to do

so it shall record its reasons for such inability. Thus by introducing the aforesaid amendment

an attempt was made to minimise the hardship and harassment caused by the injunction

rders passed exparte.

Identical provisions were included in Article 226 of the Constitution by substituting

Clause (3) thereof which provides that if an interim order is passed exparte and the party

concerned makes an application to the High Court for vac

ation of such order, the High Court

has to dispose of the application within a period of two weeks and if the application is not so

disposed of, the interim order, on the expiry of that period shall stand vacated, There are

other local laws also, where the

power of the Court or the Tribunal in granting the injunction

or stay orders has either been taken away or has been regulated by providing stringent

conditions to prevent hardship loss or harassment to the opposite party. It is not necessary to

mention a

catalogue of such local laws and Central Acts as one come across such laws every

day. However, it is a different matter altogether as to how far these legislative measures have

succeeded to achieve the object to minimise the hardship to the opposite party

and to prevent

the abuse of the injunction or interlocutory orders passed by the Courts during suits.

In my opinion, the aforesaid legislative efforts have not been able to achieve their

object. The effect of the amendments made in the provisions containe

d in Order 39 C. P. C.

may be mentioned which instead of remedying the situation has created further problems and

complicated the Issue. The first price has to be paid by the High Court itself, which has been

run over by a large number of writ petitions fi

led before it for those causes which were

normally being agitated by filing suits in civil court. The situation in High Courts has become

so grim and difficult that the pendency of the cases has crossed five lakhs and the time taken

in deciding the writ pe

titions is now more than ten to fifteen years. No body could have

contemplated this state of affairs at the time the amendments were brought about by U.P. Act

No.57 of 1976. The second price, which has been paid by the Bar. Is that the filing of the

origin

al suit in every district has declined to such an extent that the growth and progress of

the Civil Bar has stopped. Now the position in District Courts as well as in High Court is that

it Is difficult to find out a good civil lawyer. The growth of civil la

w has also come to a

standstill which Is a matter of great concern. The loss of trust shown by the legislature in

subordinate judiciary by taking away the power of granting injunction in the matters

enumerated In the Proviso to Sub

Rule (2) of Rule 2 of Or

der 39 has in fact rendered a dis

service of bigger magnitude than remedying the situation for which it was enacted. It will be

better for the State, the High Court and the Judiciary as a whole and also to the Bar, if this

proviso is deleted from Order 39,

at the earliest.

Now, coming to the role of the Presiding Officer of the Court while granting order of

injunction or other interlocutory order, it should always be kept in mind that its origin is from

equitable jurisdiction and before passing the order t

he claim must be tested on all principles

of equity. The normal requirements that the applicant praying for the injunction should have a

good prima facie case, chance of suffering irreparable injury and balance of convenience is in

his favour and other pri

nciples connected with the matter, the Court should have extra

cautious approach in testing the prima facie case with a certain amount of extra rigour to

avoid the abuse of the process of the Court. As already mentioned earlier, we are passing

through a di

fficult time with the population explosion, the pressure on the property has

Increased to its maximum and it is likely to go further. In these days the grabbing of the

private and Government property has become the fashion of the day. Documents are being

anufactured and manipulated and on basis of such documents orders are obtained. The

modus oprendi in such cases is that property grabbers manufacture false documents, then file

a suit or proceeding and obtain orders. Knowing well that the suit will take it

s own time, they

succeed in their object. I came across a case which may be quoted here as example and which

may also be reminder to all of us that knowingly or unknowingly Injunction or interlocutory

orders may not be passed In such matters.

A writ petition was filed for quashing F.I.R. lodged against the petitioner under

Sections 420/ 467/468/471 I.P.C. The facts of the case were that the petitioner fined a suit

with the allegation that P.W.D. Rest House has been leased out in his favour by t

he Executive

Engineer on a rent of Rs. 500/

per month for a period of 90 years which was decreed in his

favour, as no body put In appearance for contest. Petitioner occupied the bungalow and

rennovated it by investing huge amount. However, when the author

ities tried to dispossess

him he filed writ petition in the High Court and In view of the decree passed In his favour a

Division Bench of the High Court issued a mandamus in his favour directing the authorities

not to dispossess petitioner except In accord

ance with law from the property In dispute. The

F.I.R. was lodged thereafter by the district authorities for prosecuting the petitioner, which

was challenged In Court. One can very well imagine when this property shall be restored to

the Government. Where

lay the failure, it is a matter for consideration.

Hon'ble Supreme Court in a recent case has laid down that property

grabbers, tax

evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the

court

process a convenient lever

to retain the Illegal gains indefinitely. A bench comprising

Mr. Justice Kuldip Singh and Mr. Justice P .B. Sawant noted while imposing Rs. 11,000/

costs on a litigant, Mr. Jagannath. He had played fraud to secure an order in his favour from

the High Cou

rt.

“Frauds avoid all judicial acts, acclesiastical or temporal, “the court recalled the

observation made over three centuries ago by the then chief Justice of England, Lord Edward

Coke. Any decree or judgment obtained by playing fraud on the court is “a

nullity and nonest

in the eyes of law" the apex court ruled while setting asi~e the High court's verdict In favour

of Mr. Jagannath.

FOR Provision of Jurisdiction Matter Kindly read the following judgements to clear the clear the doubts:

CIVIL APPEAL NO.1004 of 201 3 - Supreme Court of India

dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL ...

Ramji Gupta & Anr. vs Gopi Krishan Agrawal (D) & Ors. on 11 April ...

indiankanoon.org/doc/83295596/‎

Apr 11, 2013 - CIVIL APPELLATE JURISDICTION ... This appeal has been preferred against the judgment and order ... Janki Bibi (Ist) daughter of Har Dayal, was married to one Durga ... B. Gopi Krishan filed a Regular Suit No.45 of 1956 against Smt. ... 1995 before the Civil Court, Kanpur, seeking permanent injunction, ...