Thursday, August 19, 2010

Injunction


TEMPORARY INJUNCTION

Every court is constituted for the purpose of administering justice between the parties and therefore, must be deemed to process all such powers as may be necessary to do full and complete justice to the parties before it.
   It is a well stated principle of law that an interim relief can always be granted in the aid of and as ancillary to the main relief available to the party on final determination of his rights in a suit or any other proceeding therefore, a court undoubtedly processes the power to grant interim relief during the pendency of the suit.

Case: State of Orissa vs. Madan Gopal, AIR (1952)
 An injunction is a judicial process whereby a party is required to do or to refrain from doing any particular act.
      
     Temporary injunction is mode of granting preventive relief by the court at its discretion. A temporary injunction is also known as interim injunction.

Definition: According to order 39 of the CPC any order made temporarily prohibiting the defendant not to alienate, or to change or to damage the property in dispute during the pendency of the suit is called temporary injunction.

According to section 53 of the S. R. Act, temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period of a suit and are regulated by the Code of Civil Procedure, 1908.
     
       Thus temporary injunction is regulated under the provisions of rules 1-5, order 39 of the Code of Civil Procedure, 1908.



Object of temporary injunction

      The purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated.
The underlying object of granting temporary injunction is to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit.

When and how a temporary injunction is granted

Grounds:
According to Order 39 Rules 1& 2 of the CPC
Temporary injunction may be granted by the Court in the following cases—
a)                          where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or;
b)                          where the defendants threatens, or intends to remove or dispose of his property with a view to defrauding his creditors; or
c)                           where the defendants threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property  in dispute in the suit; or
d)                          where the defendant is about to commit a breach of contract, or other injury of any kind; or
e)                           Where the court is of the opinion that the interest of justice so requires.

Principle
          The power to grant temporary injunction is in the discretion of the Court. This discretion however should be exercised reasonably, judiciously and on sound legal principles.
          Before granting a temporary injunction, the court must consider the following principles:--
(i)  When an application is made for it

(ii) When the court is satisfied about the following aspects; namely-
(a)  prima facie case
(b) irreparable loss
(c)  balance of convenience; and

   (iii) After the notice has been given to the opposite (Rule 3, Order 39)

Prima facie case: At first the court must consider whether the plaintiff makes out of a prima facie case in support of his claim.

The existence of a prima facie case in favour of the plaintiff is necessary before a temporary injunction can be granted to him. ‘Good prima facie case’ has been explained to mean that a serious question is to be tried in the suit and in the event of success, if the injunction be not granted the plaintiff would suffer irreparable injury.
Case: Uttara Bank vs. Macneill & Kilburn Ltd. 33 DLR.

. The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favour of him.

     Explaining the ambit and the scope of the connotation ‘prima facie’ case in Martin Burn Ltd. VS. Banerjee 1958.

A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.

Irreparable injury: “Irreparable injury” means that the injury must be one that cannot be adequately compensated for in damages. The mere fact that if no injunctions was granted the party would be open to criminal prosecution does not mean that irreparable injury would be non issue of an injunction.

          The existence of a prima facie case is not itself sufficient. The applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury. PLD 1960 Dhaka, 153 (DB)

Balance of inconvenience: The court should issue an injunction where the balance of convenience is in favour of the plaintiff and not where the balance is in favour of the opposite party. The meaning of “balance of convenience” in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs. The inconvenience caused to the plaintiff would be granted than that which would be caused to the defendants if an injunction is grated but the suit is ultimately dismissed. Although it is called “balance of convenience” it is really the “balance of inconvenience”, and it is for the plaintiffs to show that the inconvenience caused to them would be granted than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other wards the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.

In granting a temporary injunction the Court should consider,
          Firstly- The plaintiff makes out a prima facie case;

          Secondly- That the plaintiff will suffer irreparable loss if the injunction prayed for is not granted; and

          Thirdly- The balance of convenience lies in favour of the plaintiff.

          Case: MT. AymumNessa vs. md. Obaidul haque, 35 DLR

          Temporary injunction should be refused in the absence of the above mentioned three principles.



PERPETUAL INJUNCTION


Perpetual Injunction:
According to Section 53 of the S.R Act, a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is hereby perpetually enjoined from assertion of a right, or from the commission of an act which would be contrary to the rights of the plaintiff.

Perpetual Injunction when granted
 According to Section 54 of the S.R. Act, subject to the other provisions contained in, or referred to by this chapter, a perpetual injunction may be granted to prevent the breach of obligation existing in favour of the applicant, whether expressly or by implication.

When such obligation arises from contract the court shall be guided by the rules and provisions contained in the chapter II of this Act.
i) Contracts which may specifically be enforced; and
ii) Contracts which can not specifically be enforced.

When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunctions in the following cases:-
a)     Where the defendant is trustee of the property for the plaintiff.
Illustration:
          A trustee threatens a breach of trust. His co-trustees if any should and the beneficial owner may sue for an injunction to prevent the breach.

b)    where the exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
Illustration:
          In the course of A’s employment as a vakil, certain papers belonging to his client, B come into his possession. A threatens to make this papers public, or to communicate there contents to a stranger. B may sue for an injunction to restrain A from so doing.

c)     where the invasion is such that pecuniary compensation would not afford adequate relief;
Illustration:
          A, is B’s medical advisor. He demands money for which B declines to pay. A then threatens to make known effect of B’s communications to him as a patient. This is contrary to A’s duty and B may sue for an injunction to restrain him from so doing.

d)    where it is provable that pecuniary compensation can not be got for the invasion;
Illustration:
          A, the owner of certain houses in Dhaka becomes insolvent. B buys them from the official assigned and enters into possession. A persists in trespassing on and damaging the houses and B is thereby compelled, at considerable expenses to employ men to protect the possession. B may sue for an injunction to restrain further acts of trespass.
e)     Where the injunction is necessary to prevent a multiplicity of judicial proceedings.
Illustration: A pollutes the air with smoke so as to interfere materially with the physically comfort of B and C, who carry on business in a neighboring house. B and C may sue for an injunction to restrain the pollution.

Explanation:
For the purpose of the section a trade mark is property.

 Relevant case of this section-M/S. Hossain Ahmed vs M/S HD Hossain & Brothers, 32 DLR

          In the absence of the above mentioned ground perpetual injunction will not be granted.


Mandatory Injunction:
According to section 55 of the S. R. Act--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 the performance of the requisite act.

Illustration: A, by new buildings, obstructs lights to the access and use of which B has acquired a right under the Limitation act, 1908. B may obtained an injunction, not only to restrain A from going on with the buildings, but also to pull down so much of them as obstructs B’s light.
          Case: Abdul Bakir vs. Sirajul Islam, 20 DLR 


Lecturer _ Mosume Madam.



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