Temporary Injunctions and Interim Orders

Rule 2(1): in any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether or not compensation is claimed, the plaintiff may at any time after the commencement of the suit, and either before or after judgment, apply for a temporary injunction to restrain the defendant from committing the breach or injury complained of, or any breach or injury of a like kind arising out of the same contract or relating to the same property or right.

Rule 2(2): the Court may grant such an injunction on such terms as to the duration of the injunction, keeping an account, giving security or otherwise as it thinks fit.

Note the words "or after judgment" in Rule 2(1). An injunction under this rule is not confined to the period before decree.

The three things the applicant must show

The Code sets out the occasions on which an injunction may be granted. It does not set out the test, which has been settled by practice, and every answer on this topic is expected to give it.

One, a prima facie case. The plaintiff must show a serious question to be tried and a case that is not frivolous. He does not have to prove he will win.

Two, the balance of convenience. The court weighs the inconvenience to the plaintiff if the injunction is refused against the inconvenience to the defendant if it is granted, and asks which is greater.

Three, irreparable injury. The plaintiff must show that if the injunction is refused he will suffer harm which cannot adequately be compensated in money. Where damages are an adequate remedy, an injunction is ordinarily refused.

All three must be satisfied. A strong prima facie case does not carry an application where damages would fully compensate.

Notice before granting, and the ex parte injunction: Rules 3 and 3A

Rule 3: the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application to be given to the opposite party.

So notice is the rule and an ex parte injunction is the exception. The proviso then makes the exception expensive.

The proviso to Rule 3: where it is proposed to grant an injunction without notice, the Court shall record the reasons for its opinion that the object would be defeated by delay, and shall require the applicant:

(a) to deliver to the opposite party, or send by speed post with registration, immediately after the order is made, a copy of the application together with (i) a copy of the affidavit in support, (ii) a copy of the plaint, and (iii) copies of the documents relied on; and (b) to file, on the day the injunction is granted or the day immediately following, an affidavit stating that those copies have been so delivered or sent.

Rule 3A: where an injunction has been granted without notice, the Court shall make an endeavour to finally dispose of the application within thirty days from the date the injunction was granted; and where it is unable to do so, it shall record its reasons for that inability.

Read Rules 3 and 3A together and the design is clear. An ex parte injunction is permitted, but the court must justify it in writing, the applicant must put the whole case into the other side's hands at once, and the matter must come back within thirty days.

Disobedience: Rule 2A

Rule 2A(1): in the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2, or breach of any of the terms on which it was granted, the Court granting it, or any Court to which the suit is transferred, may order the property of the person guilty of the disobedience or breach to be attached, and may also order him to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

Rule 2A(2): no attachment under this rule shall remain in force for more than one year, at the end of which, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit to the injured party and shall pay the balance to the party entitled.

Learn the two figures: three months of detention, and one year of attachment before sale.

Discharge, variation and other interim orders

Rule 4: any order for an injunction may be discharged, varied or set aside by the Court on application made by any party dissatisfied with it. The proviso adds that where an injunction was obtained on knowingly false or misleading statements in the application, and the injunction was granted without notice, the Court shall vacate the injunction unless, for reasons to be recorded, it considers it not necessary so to do in the interests of justice.

Rule 5: an injunction directed to a corporation is binding not only on the corporation itself but also on all members and officers whose personal action it seeks to restrain.

Order XXXIX also contains the other interim orders the syllabus refers to.

Rule 6: the Court may, on the application of any party, order the sale of any movable property which is the subject matter of the suit, or attached before judgment, and which is subject to speedy and natural decay or which for any other just and sufficient cause it may be desirable to have sold at once.

Rule 7: the Court may, on the application of any party, make an order for the detention, preservation or inspection of any property which is the subject matter of the suit; and for that purpose authorise any person to enter upon or into any land or building in the possession of any other party, and authorise samples to be taken or observations made or experiments tried.

Rule 8 requires notice of such an application to the opposite party, except where the object would be defeated by delay. Rule 9 deals with a party in possession of immovable property who is out of possession by dispossession. Rule 10 allows the Court to order money or other thing capable of delivery, which is admitted by a party to be held by him as a trustee for another or which belongs to another, to be deposited in Court or delivered to that other on such terms as it thinks fit.

Compensation for a wrongful injunction: section 95

Section 95 is the safeguard for the defendant, and it is often left out of answers.

Where in any suit an arrest or attachment has been effected, or a temporary injunction granted, and it appears to the Court that there were no sufficient grounds for it, or the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable ground for instituting it, the defendant may apply to the Court, and the Court may order the plaintiff to pay such amount as it deems a reasonable compensation to the defendant for the expense or injury, including injury to reputation, caused by the arrest, attachment or injunction.

The section limits the amount to the pecuniary jurisdiction of the Court, and provides that an order determining such an application shall bar any suit for compensation in respect of that arrest, attachment or injunction.

So a plaintiff who obtains an injunction he was not entitled to does not simply lose it; he may be ordered to pay for the harm it did.

A worked example

Uma sues Vivek claiming a plot of land is hers, and learns that he is about to build on it.

Can she obtain an injunction? Yes, under Order XXXIX Rule 1(a), if she proves by affidavit or otherwise that the property in dispute is in danger of being damaged or alienated by a party to the suit. She must also satisfy the three-part test: a prima facie case, the balance of convenience in her favour, and irreparable injury if it is refused, meaning harm that money cannot repair.

She wants it today, without notice. Rule 3 makes notice the rule, so the Court must find that the object would be defeated by delay and must record its reasons. It must also require her to send Vivek immediately a copy of the application, her affidavit, the plaint and her documents, by speed post with registration, and to file an affidavit the same day or the next saying she has done so.

How long does that ex parte order stand? Under Rule 3A the Court must endeavour to dispose of the application finally within thirty days, recording reasons if it cannot.

Vivek builds anyway. Rule 2A: the Court may attach his property and may detain him in civil prison for up to three months. If the breach continues, the attachment cannot run beyond one year, after which the property may be sold and compensation awarded to Uma out of the proceeds.

Vivek says Uma got the order by concealing that she had sold the plot to him. The proviso to Rule 4: where an injunction was obtained on knowingly false or misleading statements and was granted without notice, the Court shall vacate it unless for reasons recorded it considers that not necessary in the interests of justice.

Uma's suit is eventually dismissed. Section 95: if the Court finds there were no sufficient grounds for the injunction, or that there was no reasonable or probable ground for the suit, Vivek may apply and the Court may order Uma to pay reasonable compensation for the expense or injury, including injury to reputation. That order bars any separate suit for the same compensation.

Change the facts. Suppose the dispute is over a consignment of fruit rather than land. Rule 6 allows the Court to order the sale of movable property subject to speedy and natural decay.

And another. Suppose Uma needs an engineer to inspect the site. Rule 7 allows an order for the detention, preservation or inspection of the property, authorising a person to enter upon the land and take samples or make observations.

What it does not mean

A temporary injunction is not a finding that the plaintiff is right. It only preserves the position until the suit is decided.

A prima facie case alone is not enough. The balance of convenience and irreparable injury must also be shown, and where damages are an adequate remedy an injunction is ordinarily refused.

An ex parte injunction is not the normal course. Rule 3 requires notice unless the object would be defeated by delay, and then only with recorded reasons, immediate service of the papers, and an affidavit of that service.

Disobedience is not merely contempt in the abstract. Rule 2A provides attachment and up to three months in civil prison.

A wrongly obtained injunction is not free. Section 95 allows the defendant compensation, and that order bars a separate suit.

Quick revision

Section 94(c) enables it; Order XXXIX contains it; section 95 is the counterweight.

Rule 1, three grounds: property in dispute in danger of being wasted, damaged or alienated, or wrongfully sold in execution; the defendant threatening to remove or dispose of his property to defraud creditors; the defendant threatening to dispossess the plaintiff or cause him injury in relation to property in dispute. Proved by affidavit or otherwise, and the injunction runs until the disposal of the suit or further orders.

Rule 2: injunction to restrain a breach of contract or other injury, applied for at any time after the commencement of the suit, before or after judgment, on terms as to duration, accounts or security.

The test, settled by practice: prima facie case, balance of convenience, irreparable injury.

Rule 3: notice is the rule; an ex parte injunction requires recorded reasons, immediate delivery or speed post of the application, affidavit, plaint and documents, and an affidavit of that service filed the same day or the next. Rule 3A: dispose of it within thirty days, or record why not.

Rule 2A: disobedience means attachment of property and detention up to three months; attachment not beyond one year, after which sale and compensation out of the proceeds.

Rule 4: discharge, variation or setting aside; and an injunction obtained without notice on knowingly false or misleading statements shall be vacated unless reasons are recorded.

Other interim orders: sale of perishables, Rule 6; detention, preservation or inspection, with power to enter land and take samples, Rule 7; deposit of money or things held as trustee, Rule 10.

Section 95: compensation to the defendant where there were no sufficient grounds for the injunction, or the suit fails and there was no reasonable or probable ground for it; the order bars a separate suit.

Test yourself

1. In what cases may a temporary injunction be granted? Under Order XXXIX Rule 1, where it is proved by affidavit or otherwise that property in dispute in the suit is in danger of being wasted, damaged or alienated by a party or wrongfully sold in execution; that the defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors; or that the defendant threatens to dispossess the plaintiff or otherwise cause him injury in relation to property in dispute in the suit.

2. What must an applicant show? A prima facie case, that the balance of convenience lies in his favour, and that he will suffer irreparable injury which cannot be adequately compensated in money if the injunction is refused. All three must be established.

3. Must notice be given before an injunction is granted? Yes, in all cases except where it appears that the object of granting the injunction would be defeated by the delay. Where the Court proceeds without notice it must record its reasons, require the applicant to deliver or send by speed post with registration a copy of the application, the supporting affidavit, the plaint and the documents relied on immediately, and require an affidavit of that delivery to be filed the same day or the day following.

4. How long may an ex parte injunction continue before the application is decided? The Court shall endeavour to dispose of the application finally within thirty days from the date on which the injunction was granted, and where it is unable to do so it shall record its reasons: Order XXXIX Rule 3A.

5. What is the consequence of disobeying an injunction? Under Order XXXIX Rule 2A the Court may order the property of the person guilty of the disobedience or breach to be attached and may order him to be detained in civil prison for a term not exceeding three months. No such attachment shall remain in force for more than one year, at the end of which, if the breach continues, the property may be sold and compensation awarded to the injured party out of the proceeds.

6. What is the remedy of a defendant against whom an injunction was wrongly obtained? Under section 95 he may apply to the Court, which may order the plaintiff to pay such amount as it deems reasonable compensation for the expense or injury, including injury to reputation, where it appears that there were no sufficient grounds for the injunction, or that the suit failed and there was no reasonable or probable ground for instituting it. Such an order bars any suit for compensation in respect of that injunction.

7. Name two interim orders under Order XXXIX other than an injunction. An order under Rule 6 for the sale of movable property which is the subject matter of the suit or attached before judgment and which is subject to speedy and natural decay; and an order under Rule 7 for the detention, preservation or inspection of property, authorising entry upon land or into a building and the taking of samples or making of observations.