Injunction + interim order notes.Power point

Cpc
Code of civil procedure

1. Injunctions EM- CPC

2. General:- An injunction is a judicial remedy by which a person is ordered to refrain from doing a certain act or to do a particular act. Law relating to injunction is contained in Section 36-42 of the Specific Relief Act and Order 39 (R 1-5) and Section 151 CPC. Specific Relief Act supplements the Civil Procedure Code and provides for Perpetual and mandatory injunctions. And CPC provides for interim and temporary injunction.

3. Types of Injunctions Perpetual and Temporary Mandatory and Restrictive Ad-interim and interim

4. Perpetual injunctions:- Meaning- It is an injunction granted by the judgment which finally disposes of the Suit. Section 37 of the Specific Relief Act, provides that a perpetual injunction can only be granted by a decree made at the hearing and upon the merits of the suit. Section 38 of Specific Relief Act provides the circumstances when a perpetual injunction may be granted. When the defendant invades or threatens to invade the plaintiff rights or enjoyment of property Where the invasion is such that compensation of money would not afford adequate relief. (san disk) Where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion. (factory-pollution)

5. Mandatory Injunction- Section 39 of Sp. Relief Act Mandatory injunction- The object of mandatory injunction is to restore things to the original condition and not to create new state of things. It is an exceptional remedy, one which is to be applied with greatest safeguard, for the prevention of waste. Section 39:- 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. E.g.- A has a right to enter or exit through the door of his room. Now B erects a wall of bricks in front of the door of A’s room. Due to this the right of entry or exit through the door for A is infringed. The court can restrain B permanently from further erecting the wall. This is perpetual injunction. the court may also require B to demolish the wall which has already been erected by him. It is a positive action on part of B.

6. Interim orders Interim means ‘ for the time being’; ‘in the meantime’; provisional or temporary. Thus, interim orders are those orders passed by a Court during the pendency of a suit/proceeding which do not determine the substantive rights and liabilities of the parties in respect of the subject matter of the suit/proceedings. After the suit is instituted by the Plaintiff and before it is finally disposed of- the Court may pass such interlocutory orders as may appear just and convenient. EXAMPLES- 1. Temporary injunctions under Order 39 . Arrest before judgment- Order 38 .Attachment before judgment- Order 38 . Receiver- Order 40 . Adjournments

7. Stay and Injunction Ad-interim and interim injunction. Meaning:- Ad-interim Injunction- injunction is granted without finally deciding an application for injunction and operates till the disposal of the application. E.g.: KR’s demolition case- BHC Interim injunction- it is granted while finally deciding main application and operates till the disposal of the suit or for a specific period.

8. 1. Who may apply? Either party 2. Against whom? Always and only against a party to the suit. Not against a third party. 3. When is it granted? Triple Tests satisfied. Prima Facie case; Balance of convenience; Irreparable injury. And, Yes, grant of injunction is a DISCRETIONARY RELIEF.

9. Gujarat Bottling Co. Ltd. V. Coca Cola (1995) 5 SCC 545 Wander V. Antox (1990) Supp SCC 727

10. Prima facie case: The Court must be satisfied that there is a bonafide dispute raised by the applicant. That there is an arguable case for trial which needs investigation and a decision on merits. The burden is on the applicant that he has a prima facie case in his favour.

11. Irreparable injury Irreparable injury does not mean there should be no possibility of repairing the injury. But it means that the injury must be a material one. An injury will be regarded as irreparable where there exists no specific/ fixed pecuniary standards for measuring damages.

12. Balance of Convenience The Court must be satisfied that the comparative mischief, hardship, inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused the opposite party by granting it. The Court while exercising in granting or refusing injunction should exercise sound judicial discretion and should attempt to weigh substantial mischief/injury likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the O.P. if the injunction is granted. E.g.: Veet and Gillette Ad.

13. Order 39 (Rule 1)- Cases in which T.I may be granted Where in any suit, it is proved by affidavit or otherwise- a. That any property which is in dispute in a suit, is in danger of being wasted/damaged/alienated by any party to the suit or wrongfully sold in execution of a decree. b. That the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors. (Partnership firm into a company) c. That the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. ( Inbasagaran case- facts)

14. Order 39- Rule 2 Injunction to restrain repetition or continuance of breach. The plaintiff may at any time- after the commencement of the suit- and before or after the judgment: - Apply to the court for a temp. injunction to restrain the defendant from committing the breach of contract; or injury complained of; or any breach of contract of a like kind arising out of the same contract or relating to the same property or right.

15. Duration of the TI granted under Order 39 (1) and (2) Until the disposal of the suit. Or, Specified time/ until further orders.

16. Consequence of disobedience or breach of injunction- 2A Property of the person guilty of such disobedience be attached. And, detainment in civil prison for a term not exceeding 3 months. No attachment order should remain in force for more than 1 year. However, if breach continues, the property attached may be sold and out of the proceeds the court may order such compensation as it thinks fit to the injured party.

17. Procedure to be followed- In peculiar situation. When an application for Temporary injunction is filed under Order 39, the court shall give notice to the other side. However, if the court feels that the object of granting the injunction would be defeated by delay, the court may not issue notice but may grant an ex-parte ad-interim injunction. When an ex-parte ad-interim injunction is granted, the Court shall record reasons as to why notice was not issued and shall require the applicant to do the following:- a. Send the order by registered post or by hand, asap along with the copy of the Application and plaint and affidavit.

18. Time limit for peculiar situation Time limit- Where an injunction is granted without giving notice to the opposite party, the court shall make an endeavour to finally dispose of the application within 30 days from the date on which such injunction is granted ( Rule 3A )

19. Injunction order may be varied/discharged/set aside- Rule 4 The aggrieved party ( party against whom injunction is ordered) may make an application under Order 39, Rule 4 for vacation of the said injunction. 1 st Situation: where TI granted without giving notice to the other side If an application for TI has been allowed in such a case and such application or accompanying affidavit, a party has knowingly made a false misleading statement- the court shall vacate such an injunction order.

20. Situation 2: When TI is granted after hearing both the parties; Such an injunction shall not be vacated until there is a changed situation or change in circumstance, or If the injunction causes undue hardship on the party.

21. Options before the aggrieved party:- Either to file an application to vacate the injunction- same judge, or Appeal under Section 104 read with Order 43- WHICH shall lie to the appellate court.

22. Attachment before judgment- Order 38( Rule 5-13) A. Object of Rule 5 :- The object of attachment before judgment is to prevent any attempt on the part of the defendant to defeat the realisation of the decree that may be passed against him. B. Conditions precedent of such attachment :- 38 (5) (1) Where at any stage of a suit, the Court is satisfied that the defendant:- With an intention to obstruct/ delay the execution of any decree that may be passed against him is :- about to dispose of the whole or any part of his property, or is about to remove the whole/any part of his property from the local limits of the jurisdiction of the court.

23. C. Consequences:- 38(5)(1 and 3) The court may direct the defendant:- Either to furnish security of such sum as the court may think fit. Or to produce and place at the disposal of the court, the said property or the value of the said property, as and when required. Or, to appear and show cause why he should not furnish security. The court may also direct the conditional attachment of the whole property or any portion thereof. Note:- if an order of attachment is made without complying with 38(5)(1), such attachment shall be void.

24. When is this attachment ordered? – Rule 6 Only when the defendant fails to show cause as to why he should not furnish security, or When he fails to furnish such security, within the time fixed by the court. Then, the court may order that the property specified be attached.

25. Can the attachment be revoked? Rule 6 and 9 Yes, once the defendant shows such cause or furnishes the required security, then the Court shall order that the attachment be withdrawn or the court may make such order as it thinks fit. When a property has been attached and then the suit is ultimately dismissed, then such attachment shall be withdrawn. (rule 9)

26. Not applicable:- Nothing in this Order shall authorize the plaintiff to apply for the attachment of any agricultural produce. Nor shall the court order attachment of agricultural produce. Small Causes Court do not have the power to order attachment of any immovable property.

27. General Principles Order of attachment shall be sparingly used. It is an extra ordinary remedy. The court shall look at the conduct of the parties. For e.g. if after the suit is filed, the defendant starts to dispose of his properties, then an inference may be drawn regarding his intention. When a property is attached, and later, a decree is subsequently passed in favour of the plaintiff. Then, it is not necessary for the plaintiff to apply for fresh attachment. Once an order of attachment is passed- It is appealable + revision also lies.

28. Receiver- Order 40 Meaning : No defined in Code. It means an impartial person appointed by Court to collect and receive rents, profits as well as who manages, preserves, protects the property etc. while the suit/proceedings are pending. Read Rule 1 . Who is appointed as a receiver? Independent/impartial person.

29. Remuneration- Rule 2 The court fixes the remuneration of such receiver. Duties:- Submit accounts; pay amount due from him; responsible for any loss occasioned to the property by his wilful default or gross negligence; execute documents Enforcement of his duties:- The court may direct his property to be attached and may sell his property and the proceeds are then used to make good any amount found to be due or any loss occasioned by him.

30. Cardinal principles:- Order appointing a receiver is appealable plus a revision also lies. Appointment of a receiver is a discretionary power of court. A receiver should not be appointed unless there is a strong prima facie case in favour of the plaintiff. Generally, a receiver is appointed in cases where the property is not in anybody’s possession. Then it will be in common interest of all the parties to appoint a receiver.