introduction The law of injunction in India has its origin in the Equity Jurisprudence of England from which we have

inherited the present administration of law. England too in its turn borrowed it from the Roman Law wherein it was known as Interdict. The Roman Interdicts were divided in three parts, prohibitory, restitutory and exhibitory. The prohibitory Interdict corresponds to injunction. The injunction as a chancery remedy developed at the time of Henry, the Vlth. The Chancellor set aside a certain bond by the plaintiff as one not binding on him. The Court of Common Pleas, however, gave a decree with bond. Chancellor thereupon devised the remedy of injunction by which he prohibited execution of the decree of Common Law Court. This exercise of power by issuing injunction by the Chancery Court was viewed with jealousy by the Common Law Court and it became a source of conflict between the two jurisdictions. This conflict rose to the climax between the Lord Justice Coke and Lord Chancellor Ellesmere in 1816. A decree was obtained from Lord Coke by practising gross fraud. The Chancellor thereupon by an injunction perpetually enjoined the decree-holder from proceeding to execute his judgment. The validity of this procedure of issuing injunction was seriously questioned. The matter was referred to Bacon, the then Attorney General and other counsel, who finally settled the question in favour of Chancellor. The jurisdiction to issue injunctions was thus affirmed and the remedy which is termed as the strong arm of the Courts of equity has contributed a lot to consolidate the position of the judiciary in dispensing justice between the litigant parties. From the aforesaid historical background it is manifest that the origin of the power to grant injunction is from equity, hence the exercise of the discretion by the Courts is to be governed mainly by equitable considerations. In our country in Criminal matters Sections 133, 142 and 144 of the Code of Criminal Procedure deal with grant of injunction. In Civil matters the law relating to grant of injunction is contained in Chapter VII of Part III of the Specific Relief Act, 1963. Sections 36 to 42 deal with the grant of injunction. It has been termed as a prever1tive relief which is granted at the discretion of the Court by injunction which may be temporary or perpetual. Section 37(1) and section 53 of the Specific Relief Act, 1963 deals with the temporary injunctions which are such as are to continue until a specified time, or until further orders of the Court, In CPC it is found in Sections 94(c) and Order 39 Rule 1 to5

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. So far as the grant of temporary injunctions Is concerned, it used to be a small step during the progress of the suit or proceeding towards the preservation of its subject matter which could be property or any other right has now gained enormous importance and sometimes it becomes even more important than the final result of the suit or proceedings with the change of the time 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.

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.

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 37(1) 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 Temporary Injunction in Civil Procedure Code Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court may in order to prevent the ends of justice from being defeated, grant a temporary injunction or make such other interlocutory order as may appear to the Court to be just and convenient. Section 95 further provides that where in any suit a temporary injunction is granted and it appears to the Court that there were no sufficient grounds, or the suit of the plaintiff falls and it appears to the Court that there was no reasonable or probable ground for instituting the same. The Court may on application of the defendant award reasonable compensation which may be to the extent of the pecuniary Jurisdiction of the Court trying the suit. The procedure with regard to the grant of temporary injunction and interlocutory orders has been provided in Order 39 of C.P.C., as far as this State is concerned, drastic changes were brought about by

amending the provisions contained in Order 39 by U.P. Act No. 57 of 1976. In Sub-Rule (2) of Rule 2 of Order 39, a proviso was inserted by which power of the Court to grant injunction was taken away in certain matters. Further a proviso was added in Rule 3 which provided that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by the delay and require the applicant to serve the copy of the order of injunction along with copy of the application, affidavit, plaint and other documents relied on by him. Further, he has also been required to file on the same day on which the injunction is granted, an affidavit stating that the requirements contained in Proviso (a) have been complied with. Rule 3(e) further contains a very important provision which requires the Court to make an endeavour to finally dispose of the application within 30 days from the date on which the Injunction was granted and where it is unable to do so it shall record its reasons for such inability. Thus by introducing the aforesaid amendment an attempt was made to minimise the hardship and harassment caused by the injunction orders passed exparte.

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 Where in any suit it is proved by affidavit or otherwiseI. 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

II.

where the defendants threatens, or intends to remove or dispose of his property with a view to defrauding his creditors; or

III.

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

IV.

Where the defendant is about to commit a breach of contract, or other injury of any kind;

V.

Where the court is of the opinion that the interest of justice so requires.

Other basic condition 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)

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. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:- The

phrases `prima facie case, `balance of convenience and ` irreparable loss are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by mans ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.

Case: MT. AymumNessa vs. md. Obaidul haque, 35 DLR Temporary injunction should be refused in the absence of the above mentioned three principles. In Nawab Mir Barkat Ali vs. Nawab Zulfiquar AIR 1982 A.P. 384, the court held that the petitioner shall (i) make out "prima facie" case (ii) show that balance of convenience is in his favour and (iii) show that he would suffer irreparable loss if temporary injunction is not granted in his favour. Further, the first condition being "sine qua non", the plaintiff must prove one of the remaining two conditions for grant of temporary injunction.

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. Cases: 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. In respect of prima facie case, it was held in K. Karunanidhi vs. R. Ranganathan Chettiar AIR 1973 Mad 443 that prima facie case does not mean the thorough examination of the rival claims by the court. This is so because the scope of enquiry in an interlocutory application like a petition for temporary injunction is limited and not exhaustive as in the case of a suit. It was observed in M.K. Dasappa vs. G. Ramachandra: AIR 1976 Kant. 53 that in deciding prima facie case the court is to be guided by the apparent strength or otherwise of plaintiffs case as revealed in the affidavits or other material. In Deity Kashiswar Mahadev vs. Gram Sabha: AIR 1973 H.P. 2, the court pointed out that the plaintiff need not prove his title to the property in temporary injunction petition and that it is enough if the plaintiff can show that he has a fair question to raise as to existence of right of which he alleges and can satisfy the court that the property in dispute should be preserved in its present actual condition until such question is disposed of. Explaining the ambit and the scope of the connotation prima facie case inMartin 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 injunctins 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)

In the case of Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336, observed: 'Irreparable injury' means such injury which cannot be adequately remedied by damages. (The Supreme Court in Hindustan Petroleum Corporation v. Shrinarayan and Ors., (2002) 5 SCC 760, has held with regard to grant of interlocutory injunction which can also be applied with regard to grant of permanent injunction. It is specifically clear from the above principle that with regard to grant of permanent injunction the Court has to see that whether plaintiff has a legal right asserted by him in his favour or by violation of his right he would suffer irreparable injury

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 Bikash Chandra Deb vs Vijaya Minerals Pvt. Ltd.: 2005 (1) CHN 582, the Honble Calcutta High Court observed that issue of balance of convenience, it is to be noted that the Court shall lean in favour of introduction of the concept of balance of convenience, but does not mean and imply that the balance would be on one side and not in favour of the other. There must be proper balance between the parties and the balance cannot be an one-sided affair. in Antaryami Dalabehera vs Bishnu Charan Dalabehera: 2002 I OLR 531, as this point, it was held that balance of convenience, which means, comparative mischief for inconvenience to

the parties. The inconvenience to the petitioner if temporary Injunction is refused would be balanced and compared with that of the opposite party, if it is granted. In Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341 it was held that 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. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below : (i) Extent of damages being an adequate remedy; (ii) Protect the plaintiffs interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ; (iii) The court while dealing with the matter ought not to ignore the factum of strength of one partys case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible; (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.