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CHEQUE BOUNS CASE

INJUNCTION = PRIMA FAICE CASE ; BALANCE OF INCONVENIENCE; IRREPARABLE INJURY; PENDING SUIT:in that suit if the court not reacted in time, the petitioner would be left with no remedy except sitting by opening his mouth widely as why the court did like this – amounts irreparable loss and balance of inconvenience and not that he can claim damage, he can recover possession, main relief – temporary relief are one and same as such no irreparable injury or balance of incovenience

Civil Procedure Rules

Civil Procedure Rules (Photo credit: septuagesima)

whether to grant or not to grant interim injunction is a discretionary  power of the Honorable courts

Interim orders of injunctions are covered under Or.39, rule 1 of Civil Procedure Code and under section 36 and 37 of Specific Relief Act. and under special Acts  for specific purposes under that Acts in which C.P.C. not applicable .

But in each and every case the Honorable courts are used to assess the relief required to be granted on these 3 ingredients ……

whether there is a prima faice case ?

whether there is a balance of inconvenience ?

whether there is an irreparable loss ?

on satisfaction of existence of all 3 ingredients only the Hon’ble courts are willing to grant injunction else not.

but in assessing the above said 3 ingredients , errors are coming out.

How to prevent these errors while assessing the 3 ingredients  , is  our subject to Review.


  I].  Order 39 , Rule 1 and 2 deals with interim injunction orders.

1. Cases in which temporary injunction may be granted.- Where in any Suitit is proved by affidavit or otherwise—(a) that 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) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(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,

the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit,

until the disposal of the suit or until further orders.

HIGH COURT AMENDMENTS

Allahabad.- In Clause (a) the words “or wrongfully sold “alienation” are now restored which were deleted by former amendment.

Andhra Pradesh.- Substitute the following for Rule 1:

‘1. Where in any suit it is proved by affidavit or otherwise –

(a) that 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) that the defendant threatens of intends to remove or dispose of his property with a view to defraud his creditors: or

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury or loss to the plaintiff;

the Court may order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossessing or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders.” (26.7.1956).

Assam and Nagaland. Calcutta, Andaman and Nicobar Islands.- Add sub-rules (2) and (3) as follows:

“(2) In case of disobedience or of breach of the terms of such temporary injunction or order, the Court granting the injunction or making such order may order the property of the person guilty of such disobedience or breach to be attach, and may also order such person to be detained in the civil prison for a term not exceeding six months unless in the meantime the Court direct his release:

(3) The property attached under sub-rule (2) may, when the Court considers it fit so to direct, be sold, and out of the proceeds tile Court may award such compensation to the injured party as it finds proper and shall pay the balance, if any, to the party entitled thereto.”

Calcutta (Andaman and Nicobar Islands) and Gauhati (Assam), Meghalaya, Manipur and Tripura:
Re-number Rule I as Rule 1(l) and add the following as sub-rules (2) and (3):

“(2) In case of disobedience, or of breach of the terms of such temporary injunction or order, the Court granting the injunction or making such order may order the property of the person guilty of such disobedience ox breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release.

(3) The property attached under sub-rule (2) may, when the Court considers it fit so to direct, be sold and, out of the sale proceeds, the Court may award such compensation to the injured party as it finds proper and shall pay the balance, it any, to the party entitled thereto” (3.2.1933).

Kerala, Laccadive, Minicoy and Amindivi Islands.- (i) Rule 1 shall be re-numbered as sub-rule (1) and after the words “wrongfully sold” insert the words “or delivered.”

(ii) After sub-rule (1) insert the following sub-rule (2):

“(2) In case of disobedience of any order passed under sub-rule (1), the Court granting the injunction may proceed against the person guilty of such disobedience under sub-rules (3) and (4) of Rule 2 of this order.” (9.6.1959).

Patna and Orissa.- Substituted the word “the” for the word “as” in line I of clause (a) and add the following proviso after Rule 1:

“Provided that no such temporary injunction shall be granted if it would contravene the provisions of Section 56, Specific Relief Act, 1877:

“Provided further that an injunction to restrain a sale, or confirmation of sale, or to restrain delivery of possession, shall not be granted except in a case where the applicant cannot lawfully prefer and could not lawfully have preferred, a claim to the property, or objection to the sale, or to the attachment preceding it before the Court executing the decree.”(8.IO.1937).

 it is very important to note that the word irreparable injury not used in order 39 , rule 1 of civil procedure code. it only say in any pending suit on affidavits or other wise if it is proved  that …..a)…b)…..c)…. wasting, damaging, alienate , removal , dispossession subject matter of suit property pending suit court can grant interim injunction;

no specific wording of prima faice case , balance of inconvenience and no irreparable injury , found place in order 39, rule 1 of civil procedure code.

II]. Specific relief Act

Sec.37. Temporary and perpetual injunctions

(1) Temporary injunction is such as are to continue until a specific time, or until the further order of Civil Procedure, may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.

(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits 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 rights of the plaintiff.

 in this section also it is mentioned that it is governed by order 39 of civil procedure code. for granting perpetual injunction, it should be granted by way of decree on merits of the case.

in this section also the wording of prima faice, balance of inconvenience, irreparable injury found no place.

Section 38. Perpetual injunction when granted

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

here breach of an obligations whether express or implied   is the wording that was used for granting preventive perpetual injunction .

In this section also the wording of prima faice, balance of inconvenience, irreparable injury found no place.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

here it is mentioned that that obligation must be arose from the contract , for granting preventive perpetual injunction court has to look chapter II

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-

(a) Where the defendant is trustee of the property for the plaintiff;

(b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) Where the invasion is such that compensation in money would not afford adequate relief;

(d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

only in  cases where the defendant is a trustee of the property for plaintiff ,

no standards for assessing damage,

no adequate relief in terms of money,

to prevent multiplicity of proceedings etc., 

In this section also the wording of prima faice, balance of inconvenience, irreparable injury found no place.

Section 39. Mandatory injunctions

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 performance of the requisite acts.

mandatory injunction to prevent the breach complained of, 

and

to compel performance of the requisite acts

In this section also the wording of prima faice, balance of inconvenience, irreparable injury found no place.

 

Section 40. Damages in lieu of, or in addition to, injunction

(1) The plaintiff in a suit for perpetual injunction under Section 38, or mandatory injunction under Section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.

damages can be claimed along with injunction

In this section also the wording of prima faice, balance of inconvenience, irreparable injury found no place.

(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:

without claim damages in the plaint, no relief can be granted

In this section also the wording of prima faice, balance of inconvenience, irreparable injury found no place.

Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.

(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.

negative touch of sub.sec.2

In this section also the wording of prima faice, balance of inconvenience, irreparable injury found no place.

Section 41. Injunction when refused

An injunction cannot be granted. –

(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings;

(b) To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(c) To restrain any person from applying to any legislative body.

(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) To prevent the breach of a contract the performance of which would not be specifically enforced;

(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that :It will be a nuisance;

(g) To prevent a continuing breach in which the plaintiff has acquiesced;

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;

(j) When the plaintiff has a no personals interest in the matter.

In this section also the wording of prima faice, balance of inconvenience, irreparable injury found no place.

Section 42. Injunction to perform negative agreement

Notwithstanding anything contained in clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstances that the court is unable to compel specific performance of’ the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement:

Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.

In this section also the wording of prima faice, balance of inconvenience, irreparable injury found no place.

III]. Review of the subject.

Their Lordships of Apex court and our High courts out of their experience and after analyzing the rules and section put forward the above said propositions

unless it is proved and pleaded that there is a prima faice case, balance of inconvenience and irreparable injury , no injunction should be granted. 

now the latest trend that  in the absence of proof of any ingredient , no injunction should be granted. 

it is a settled law that  while granting temporary injunction, no need to consider the specific relief act. But our courts totally relying on the ingredients of the sec.38 (3) of specific relief Act.

on affidavits or otherwise if the subject matter of the property in the suit, is in danger etc., court may grant temporary  injunction….

on affidavits or otherwise  =  one need not to go deeply in to the plaint averments ;

it is proved on affidavits or otherwise = means a  primary proof , but not prima faice proof.

danger to the property = damage to the property, wasting the property, alienating or sold in execution of the decree   these points does not come under the term  Irreparable injury which is a heavy word than the words mentioned in the above section.

threatening / trying to dispose the property in order to defraud the creditors – also not comes under the heavy terminology of irreparable loss. 

for the heavy terminology balance of inconvenience , there is no room in the order 39 rule 1 of civil procedure code,

 what is required to grant injunction of temporary ,

in any suit it is proved by way of affidavit or otherwise ( there is no if clause also and further affidavits are also not compulsory and on the other hand it is mentioned that in any suit not only injunction suit but also covers other suits including ops)

the property is in danger, sell to defraud creditor, to dispossess the petitioner,

court may grant  temporary injunction till the disposal of the suit or further orders.

but our courts while assessing damages or assessing irreparable injury  or balance of inconvenience, are going to such an extent that the injury means permanently not repairable one and balance of inconvenience means left with no remedy even by out of the scope of the suit.

whatever may be the assessments for consideration but must be within the suit and not out of the scope of suit.

for example if one filed a suit for injunction, if he was dispossessed , he cannot recover his possession in that suit. the only remedy is by filing another suit means another remedy .

here what one can do whether to grant injunction or refused to grant injunction on the ground that it is not irreparable injury and the plaintiff can recover possession and damages from the defendant.  if the owner filed a petition against the lessor as he is subletting , whether injunction can be granted or not as he has got other remedy of eviction or damages

what ever may be damage or irreparable injury or balance of inconvenience should be confined with in four walls of the pending suit only.

in that suit if the court not reacted in time, the petitioner would be left with no remedy except sitting by opening his mouth widely as to why the court did like this – amounts irreparable loss and balance of inconvenience and not that he can claim damage, he can recover possession, main relief – temporary relief are one and same as such no irreparable injury or balance of inconvenience

these are some examples . now the time has to come to reconsider over rules and regulations as the poor people are suffering a lot by not granting interim reliefs  on one reason or the other.

JUSTICE MUST BE DONE UNDER ANY CIRCUMSTANCES

BUT NOT TO DENY , NOT TO DELAY

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