Injunctions and its kinds

INJUNCTIONS and its Kinds

Introduction

India observes the origin of Law of Injunction in English Jurisprudence of Equity; it is where we inherited the present administration of law. An injunction that is an authoritative warning or order is derived from French and Latin verb ‘injungere’ which means “To Join”.

An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is threatening or attempting to commit, or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action fit law.

An injunction is a preventive remedy granted to a party aggrieved by the acts of another party, and thereby refrain the wrongdoers to pursue the acts performed by them, to evade any further injury and thus considers equity.

For example, if it so happens that a person is demolishing a building you have possible claims on, you may ask the competent court to order such person to not demolish the building until the trial for the claim of the building is complete and judgment goes in his favour.

The law of injunction has been provided for by the Specific Relief Act, 1963 (hereinafter, the Act), and is also regulated by the Code of Civil Procedure, 1908 in India. Temporary injunctions have been provided under Rule 1 and 2 of Order 39 of the Code of Civil Procedure, and permanent or perpetual injunctions have been provided under the Specific Relief Act.

The difference lies between them as to permanent injunctions where the restraint is to last forever, whereas temporary injunctions, also known as, interlocutory injunctions, may be instituted, at any point of a suit, and shall persist until the court gives any further order or the suit is disposed off.

There are two kinds of temporary injunction involving ad interim and temporary injunction wherein the former comes into play when the application for temporary injunction has not been disposed off completely, but it is the immediate reaction, and the latter is granted when the application has been completely disposed off. Under Rule 1, both the plaintiff and defendants can approach the court, and exparte order cannot be given, but if given then it should be of a very small duration. To accomplish the objectives of Temporary Injunction there are few factors that need to be considered:

• There has to be a prima facie case.
• A balance of convenience has to be maintained.
• There has to be an irretrievable damage.

1.     Grant of injunction against government bodies and public officer governed by Section 80 of the Code, making it mandatory for the notices to be served prior to the injunction. Injunction in such cases may be granted to maintain a status-quo and thus to prevent the authority to perform a certain task.

2.     Protection against Nuisance: Injunction cannot be granted in every act of nuisance, nuisance should involve factors such as harm to any person physically or mentally or deteriorating the image of the person in public. Injunction in such cases is granted on the basis of equity to stop the defendants from causing the injury or annoyance.

Types of Injunctions:

Injunctions (Classification): 

1.  On the basis of Duration  a) Temporary injunctions b) . Permanent Injunctions

2. On the basis of nature of its order a) Prohibitory Injunctions b)  Mandatory Injunctions                         3. Other kinds: a) Anton Pillar Injunctions b) Mareva Injunctions c) Anti Suit Injunctions d) Jonn Doe Injunctions e) Quia timet injunctions f)  Freezing injunction

Temporary Injunction

Temporary injunctions, as the name suggests, are the injunctions that are given for a specific period of time or until the court gives further order regarding the matter in concern. They can be obtained during any stage of the trial and are regulated by the Section 37 of Specific Relief Act which provides that temporary injunctions are governed by Code of Civil Procedure (CPC), 1908. The issuance or rejection of a temporary injunction is regulated by Section 94, 95 and Order 39 of the Code

• Section 94: The section provides for supplemental proceedings, to enable the court to prevent the ends of justice from being defeated. Section 94(c) states that a court may grant temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold. Section 94(e) of the Code enables the court to make interlocutory orders as may appear to it to be just and convenient.

• Section 95: If it is found by the court that there were no sufficient grounds to grant the injunction, or the plaintiff is defeated in the suit, the court may award reasonable compensation to the defendant on his application claiming such compensation.

• Order 39 CPC, 1908:

o       Rule 1: It enlists the situations when a court may grant temporary injunction. These are:

v    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

v    the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

v    the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

·             Rule 2: It provides that an interim injunction may be granted for restraining the defendant from committing a breach of contract or other injury of any kind to the plaintiff.

·                Rule 3: It states that a court shall direct a notice of application to the opposite party, before granting the injunction to the plaintiff. However, if it seems to the court that the purpose of the injunction would be defeated by the delay, it may not provide the notice.

·                Rule 4: It provides for vacation of already granted temporary injunction.

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

It is no longer res integra that while considering an application for injunction, the Court would pass an order thereupon having regard to prima facie, balance of convenience and irreparable injury.

1. Prima Facie Case: 

Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs. R.N. Banerjee 1958 AIR 79 SC, while discussing a the meaning of the ‘prima facie’ case, the court said:

“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. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.”

Prima facie case is a must to be eligible to obtain a temporary injunction. However, it is not sufficient and temporary injunction cannot be granted if the damage that will be caused if the injunction is not given is not irreparable.

2. Irreparable Injury:

‘Irreparable injury’ means such injury that cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused.

3. Balance of Convenience:

In the case of Anwar Elahi vs Vinod Misra And Anr. 60 (1995) DLT 752, the court has clearly explained the meaning of ‘balance of convenience’. According to the court:

“Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted.”

Permanent Injunction/ Perpetual Injunction Section 36, 38-42 SRA, 1963

A permanent injunction can be granted by the court by passing a decree made at the hearing and upon the merits of the suit. Once such decree is passed, the defendant is permanently prohibited from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38 of the Act lays down the requisites of granting a perpetual injunction. Sub-section 1 of Section 38 clarifies the position of the section and lays down that a perpetual injunction may be granted to prevent any breach of an obligation already existing in favor of the applicant. Subsection 2 and 3 of Section 38 articulates the condition under which the injunction can be granted. Section 2 of the Act widely defines the term ‘obligation’. It implies that if there is no such obligation exists, then the court will not grant an injunction. Injunctions can be granted against the breach of any lawful obligation may it be contractual obligation, obligation arising out of a tort etc. According to Kerr, an authority on the subject, a plaintiff is entitled to a perpetual injunction if he successfully establishes that there exist a legal right in his favor and the fact of violation of that legal right, except in exceptional circumstances such as laches or where the interference with the plaintiff’s right is trivial. It is to be noticed that the relief under Section 38 of the Act is subject to restriction imposed by Section 41 of the Act, i.e. even if the plaintiff successfully proves the existence his legal right and the fact that his right has been violated but the case falls within the four corners of Section 41 of the Act, then the court will not grant an injunction in favor of the applicant. The discretion of the court and the right to an injunction may not be determined independently with reference to sub-section 1 of section 37, but it must be understood in light of Section 38 and 41 of the Act. Section 38 and 41 of the Act must be read together and does supplement each other. Section 38 clarifies the situations under which a perpetual injunction may be granted and Section 41 defined the circumstances under which a perpetual injunction may not be granted.

When can a permanent injunction be granted?

A permanent injunction may be granted:

a. To the plaintiff in a suit to prevent a breach of an obligation existing in his favour, whether implicit or explicit. However, in a case where such an obligation arises out of a contract, the court follows the rules as specified by Chapter II of the Act. Chapter II, under Section 9 provides that a person may claim relief in respect to a contract, by pleading in his defense, any of the ground available to him under any law relating to contracts.

b. In a case where the plaintiff invades or threatens to invade the the plaintiff’s right to, or enjoyment of, property, the court may grant a permanent injunction where:

1. The defendant is trustee of the property for the plaintiff;
2. there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
3. the invasion is such that compensation in money would not afford adequate relief;
4. the injunction is necessary to prevent a multiplicity of judicial proceedings.

Mandatory Injunction

If the court finds it necessary and within its capability, to compel the performance of an act, to prevent the breach of an obligation, it may do so granting a mandatory injunction to the plaintiff, compelling the defendant to perform the requisite acts.

Temporary mandatory injunction are granted not as a matter of rule, but in exceptional circumstances and the relief is an extra-ordinary relief. The Supreme Court in Colgate v. Hindustan Lever, noted certain specific considerations in the matter of grant of interlocutory injunction. According to the Hon’ble Court is that, primary consideration shall be non-expression of opinion as to the merits of the matter because injunction is sought at the earliest possible stage of a trial.

Damages In Lieu of, or in Addition to Injunction

If the plaintiff claims for any additional damages along with the injunction sought for, either perpetual or mandatory, or in substitution of the said injunction, the court may award him such damages, if it thinks fit. If no damages have been claimed, the court may allow the plaintiff to make the required amendments to the plaint and claim damages.

However, it is highly recommended to claim damages in the plaint before submitting it, as permission for further amendments rests solely at the discretion of the court.

The dismissal of a suit to prevent the breach of an obligation existing in favor of the plaintiff bars his right to sue for damages for such breach.

Injunction to Perform Negative Agreement

The court can grant an injunction to not do certain acts, which are prohibited by the contract to do. The court may do so even if it is unable to compel the performance of the affirmative terms of the contract, i.e. the terms that requires the defendant to do (perform) certain acts. However, it is subject to the fact, whether the plaintiff has performed the terms of the contract binding on him or not. Non performance by the plaintiff dis-entitles him from obtaining such an injunction.

Case Laws Regarding Permanent Injunction

In the case of  Jujhar Singh vs. Giani Talok Singh AIR 1987 P & H 34 where a permanent injunction was sought for by a son to prevent his father who happened to be the Karta of the Hindu Undivided Family (HUF), from selling the HUF property was set aside. It was not maintainable because the son, also a coparcener, had got the remedy of challenging the sale and getting it set-aside in a suit subsequent to the completion of the sale.

On the other hand, granting the injunction sought would allow the son to use the injunction to prevent the father from selling the property even if he is compelled to do so, due to legal necessities.

Where in the case of Cotton Corporation Of India vs. United Industrial Bank 1983 AIR 1272 SC, an injunction was sought for to restrain the defendants from presenting a winding-up petition under the Companies Act, 1956 or under the Banking Regulation Act, 1949, the court dismissed the petition as it was not competent to grant, as a relief, a temporary injunction restraining a person from instituting a proceeding in a court not subordinate to it.

The court here was of the view that if a perpetual injunction cannot be granted for the subject matter of the case under Section 41(b) of the act, ipso facto temporary injunction cannot be granted.

Grounds for Rejection of an Application for Injunction

On the following grounds, an injunction cannot be granted:

1. To restraint a person from prosecuting a pending judicial proceeding, unless it is to prevent multiplicity of the proceeding.
2. To restraint a person from instituting or prosecuting a judicial proceeding in a court, where the injunction is sought from a court subordinate to that court.
3. To restrain any person from applying to any legislative body.
4. To restrain any person from instituting or prosecuting any proceeding in a criminal matter.
5. To prevent the breach of a contract the performance of which would not be specifically enforced (Illustration: a contract between a master and servant, requiring the servant to render personal services to the master cannot be specifically enforced by the master or the servant. Hence, an injunction cannot be granted in this situation)
6. Where it is not reasonably clear that an act it nuisance, to prevent such an act on the ground of nuisance.
7. To prevent a continuing breach in which the plaintiff has acquiesced, as the general rule is that an acquiescence is an implied consent by remaining silent.
8. Where except in the case of breach of trust, equally efficacious relief can certainly be obtained by any other usual mode of proceeding.
9. When the conduct of the plaintiff or his agents has been such as to dis-entitle him to the assistance of the court.
10. When the plaintiff has no personal interest in the matter.

Some Illustrations

Ø  A lets certain land to B, and B contracts not to dig sand or gravel there out. A may sue for an injunction to restrain B from digging in violation of his contract.

Ø  A trustee threatens a breach of trust. His co-trustees if any should and the beneficial owners may sue for an injunction to prevent the breach.

Ø  The directors of a public company are about to pay a dividend out of capital or borrowed money. Any of the shareholders may sue for an injunction to restrain them.

Ø  The directors of a fire and life insurance company are about to engage in marine insurances. Any of the shareholders may sue for an injunction to restrain them.

Ø  A, an executor through misconduct or insolvency is bringing the property of the deceased into danger. The court may grant an injunction to restrain him from getting in the assets.

Ø  The owner of two adjoining houses lets one to B and afterwards lets the other to C. A and C begin to make such alterations in the house let to C as will prevent the comfortable enjoyment of the house let to B, B may sue for an injunction to restrain them from so doing.

Ø  A, B and C are partners, the partnership being determinable at will. A threatens to do an act tending to the destruction of the partnership property. B and C may, without seeking dissolution of the partnership sue for an injunction to restrain A from doing the act.

Ø  A, a Hindu widow in possession of her deceased husband’s property commits destruction of the property without any cause sufficient to justify in her so doing. The heir-expectant may sue for an injunction to restrain her.

Prohibitory Injunction (section 38)

A Prohibitory Injunction prohibits or forbids the doing of some act and is governed by section 38. Such injunction may be granted to the Plaintiff to prevent the breach of an obligation existing in his favour. For instance A, B and C are members of an Undivided Hindu Family. A cuts timber growing on the family property and threatens to destroy a part of the family house and to sell some of the family utensils. B and C may sue for an injunction to restrain A from doing the threatened act.

Mandatory Injunction (section 39)

According to section 39 when to prevent a 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 requisite acts. When the injunction compels doing of some act, it is a mandatory injunction, but when the direction is not to do something, the injunction is prohibitory.

Mareva injunction

A Mareva injunction is a type of court order used in England and the United Kingdom. It is a type of interlocutory relief designed to freeze the assets of a defendant, in appropriate circumstances, pending determination of a plaintiff's claim. Mareva injunctions are often used to prevent a defendant from transferring assets out of the Court's jurisdiction as soon as a claim is served, in order to frustrate enforcement of any ensuing judgment. The injunction is named after the 1975 UK case, Mareva Compania Naviera SA v International Bulk carriers SA 2 Lloyd's Rep 509 [1975]. A Mareva injunction can also be called a freezing injunction.

Freezing injunction

A freezing injunction is an interim injunction made by a court, which prevents the party from removing the assets out of a jurisdiction or from dealing with these assets. Assets that can be frozen include bank accounts, shares, motor vehicles and land.

Anton Piller Injunction

Ex-parte court injunction that requires a defendant to allow the plaintiff to (1) enter defendant's premises, (2) search for and take away any material evidence and, (3) force the defendant to answer some questions. Employed usually in cases of possible copyright violation, its primary objective is to prevent destruction or removal of evidence. This order is not a search warrant, but the defendant is in contempt of court if he or she refuses to comply. Named after the 1976 UK case of 'Anton Piller KG v. Manufacturing Processes.' Nowadays called search order.

Quia timet injunction

Injunctive relief is usually granted where there has been some infringement or alleged infringement of the plaintiff’s rights. However, even where no wrong has yet been committed it is possible to apply for a ‘quia timet’ injunction. This sort of injunction can be obtained, for instance, if the other party threatens to do something but has not yet done so (eg, demolishing a building), or if the defendant has caused harm in the past, for which the claimant has been compensated, but the claimant fears that the defendant may commit future wrongs.

John Doe” Injunctions; Injunction against unknown defendants.

The question whether the Injunction against unknown defendants can also granted? The answer is yes. Such orders are known as “John Doe” orders. Simply put, “John Doe” orders or “John Doe” injunctions are “cease and desist” orders passed by a court of law against anonymous persons/entities. The underlying principle is that when the names/ addresses/details of persons who pose a threat (or on whose part a violation of a right is apprehended) are not known, probably due to the sheer number of people involved and also the fact that they their identity may be disguised and veiled.  In such cases, the name “John Doe‟ is used to identify unknown/nameless defendants/infringers, who have allegedly committed some wrong, but whose identity is unknown to the plaintiff.

Till their identity becomes known, the court terms the defendants as “John Doe‟. The orders passed by court in such cases are thus popularly known as “John Doe orders‟.

After the passing of the injunction, the order can be executed and violating parties identified and impleaded in the suit for damages for/injunction against copyright violation.

These orders in the recent times have commonly been issued in matters relating of protecting Intellectual Property rights, such as : The protection of copyright in books /audio albums before release, prevention of movie piracy, preventing showcase of movies in cable network during the time of theatre release, and even stopping telecast of live sports events, where exclusive license remains with some channels to the exclusion of all others. “John Doe” Orders are now at the forefront of the legal battle against piracy. In India the word “John Doe” has often been replaced by the word “Ashok Kumar”.

The discretion to grant such relief is usually exercised ex-parte and the conventional principles governing grant of ex-parte temporary injunctions are applied.

• Singham Movie Case.
• In RELIANCE BIG ENTERTAINMENT PRIVATE LTD 
 JYOTI CABLE NETWORK & ORS (2011 Delhi High Court) (Singham movie case), the plaintiff (producer of the movie) apprehended that movie will be made available and sold/distributed in the form of DVDs/CDs in the market and/or shown on TV by cable operators without the authorisation to do so. In such a factual background, interim application was filed for injunction to prevent piracy and loss of revenue to the plaintiff.
• The plaintiff was able to satisfy the tripartite test of grant of injunctions, viz i) existence of prima facie case i) Balance of Convinience tilting in his favour, and iii) Irreperable harm and prejudice on non grant of injunction.
• Since the producer had the exclusive copyright over the movie as opposed to the “John Doe” defendant, prima facie case was found to be in favour of the plaintiff.
• Balance of Convinience also stood tilted in the favour of the plaintiff as the harm and prejudice to the plaintiffs will be irreperable and grave, if the injunction is not granted.
• Apart from the huge monetary implications of piracy, the right of an author of the work to ensure that due respect is accorded to his work was also involved.
• In addition to this, the fact that copyright violation, even otherwise, is an offence under the Copyright Act tipped the scales in favour of the plaintiff and against the defendants.
• In these circumstances, it was clear as daylight that if the injunction was not granted, the plaintiff would have suffered irremediable injury. All these factors weighed with the Court and the court passed “John Doe” order restraining all defendants and other unknown persons constituting part of the same class from distributing, displaying, duplicating, uploading, downloading or exhibiting the movie in any manner.
• Eventually, several Indian ISP’s were were directed to block access to several file sharing websites and take down offending content.

NOTE: A John Doe order is also known as a Quia timet action. (Latin pronunciation: [kweea team-ate], Latin for “because he fears”) which is an injunction to restrain wrongful acts, which are threatened or imminent but have not yet commenced. 

Latest on John Doe: The Courts have lately deprecated the grant of blanket order of injunctions whereby the whole website is taken down and not the offending link/URL only. This, it has been argued runs foul of the freedom of speech and expression. Protection of IPR is certainly important, however, there is a need to temper these orders with a sense of proportion so as to ensure that there is no ‘overkill’. 

Anti-suit injunctions

Anti-suit injunctions are a specific form of injunctive relief and equitable relief. The power to restrain a party (or potential party) to continue or commence a suit in another court is the power to grant what is called as an anti-suit injunction. The courts in India, like the courts in England are courts of both law and equity and thus the courts in India have the power to issue an anti-suit injunction to a party, over whom they have personal jurisdiction (personal jurisdiction is the first and foremost requirement for granting anti-suit injunction).

 The doctrine of anti-suit injunction in India cannot be applied to an equivalent domestic court, but the doctrine can be applied to a subordinate domestic court or a foreign court /forum, which is the limitation given by section 41(b) of the Specific Relief Act, 1963 and as interpreted by the Supreme Court in Cotton Corporation of India Limited v. United Industrial Bank Limited AIR 1973 SC 1272 and; Horlicks Ltd. And Anr. vs Heinz India (Pvt.) Limited 2010 (7) RCR (civil) 2176.

Though anti-suit injunctions are directed against a person, they can, in effective, cause interference in exercise of jurisdiction by another court. And thus doctrine of anti-suit injunction has to be exercised with due care and caution as it involves the issue of respect for corresponding courts and international forums. And hence the power to grant anti-suit injunction is exercised sparingly, which is why the courts are themselves reluctant to grant anti-suit injunction. Hence, the principle of comity (respect for other courts in which the commencement or continuance of action/proceeding is sought) must be borne in mind while granting anti-suit injunction.

A party should not be enjoined from proceeding in a foreign court simply because India is a natural forum.  Under certain circumstances, even if India is a natural forum, then too proceedings can continue in a foreign court. The doctrine of forum non-conveniens comes into effect here, whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. The doctrine of forum conveniens and forum non conveniens also explains the problem when more than one forum is available (non-exclusive jurisdiction).

On applying the principle of forum non conveniens the court must bear in mind that that the Indian proceedings or foreign proceedings must not be “oppressive and vexatious” and would cause inequitable hardship and then decide whether to grant anti-suit injunction or not (Modi Entertainment Network & Anr vs W.S.G.Cricket Pte. Ltd. AIR 2003 SC 1177.)