Provide a complete overview of the law of temporary injunction including its

ingredients
by specifying the provisions provided under the CPC.
(Assignment 1)

Course: CODE OF CIVIL PROCEDURE II

Submitted to: Mr. Tanveer Iqbal

Submitted by: Fehmida kanwal

(Registration No: LLB-2017-05)

Semester: LLB-IV (2017-2022)

Spring 2020

Date of Submission: April 22, 2021

Department of Law
Fatima Jinnah Women University, Rawalpindi
Contents
Abstract .......................................................................................................................................................... i
1. What are injunctions? ........................................................................................................................... 1
1.1 Temporary injunctions ...................................................................................................................... 1
2. Legal provisions ..................................................................................................................................... 2
3. Temporary injunctions under CPC ........................................................................................................ 2
3.1 Prima facie case .................................................................................................................................. 3
3.2 Balance of Convenience ...................................................................................................................... 4
3.3 Irreparable injury ................................................................................................................................ 4
4. Discharge and variation of order of injunction ..................................................................................... 5
5. Injunction on corporations ................................................................................................................... 6
6. Section 94 and 95 of CPC ...................................................................................................................... 6
7. Case laws ............................................................................................................................................... 6
7.1 Hassan Yusuf Khan vs. Syed Ashia Ali ........................................................................................... 6
7.2 Umer Gul Vs Abdul Manan.................................................................................................................. 7
7.3 Syed Mahmood Ali Gerdezi and Another Versus Syed Rabia Beg Um And 10 Others ....................... 7
7.4 Nawabzada Saadat Khan Versus Military Estate Officer, Kohat Circle Kohat Cantt. Kohat and 7
Other ......................................................................................................................................................... 7
8. Conclusion ............................................................................................................................................. 8
9. Bibliography .......................................................................................................................................... 9
Abstract

This paper will talk about injunctions and what is temporary injunctions its procedure under

CPC. An injunction is an equitable remedy in the form of a court order that requires a party to

do, or to refrain from doing, certain acts. It is an extraordinary remedy that courts utilize in

special cases where preservation of the status quo or taking some specific action is required in

order to prevent possible injustice.

i
 1. What are injunctions?

An injunction is a Judicial Remedy prohibiting persons from doing a specified act called a

restrictive injunction or commanding them to undo some wrong or injury called a mandatory

injunction and may be either temporary, interim or interlocutory or permanent. It is basic

principle of our law that if there is a right there should be a remedy.1

Relief of injunction cannot be claimed as of right. It is discretionary, equitable relief. The relief

of injunction must be granted where it is absolutely necessary. It may be granted where it would

help in preservation of peace and public order. Where there is possibility of breach of peace of

public order, the Court ought to proceed with caution. An injunction is a remedy against an

individual and should be issued only in respect of acts done by him against whom it is sought to

be enforced.2

1.1 Temporary injunctions

A temporary injunction is a type of temporary relief designed to protect the subject matter in its

current state without the defendant interfering or threatening it. Its aim is to prevent the plaintiff

from being disposed of, or from having his property (subject matter) destroyed or damaged, or

from suffering any damage. The primary purpose of a temporary injunction is to secure an

individual's or entity's rights before the final judgment is rendered. When issued, a temporary

injunction lasts for a set period of time or until the court decides otherwise.3

1
Anusha, Temporary Injunction O-39, http://www.legalserviceindia.com/legal/article-2444-temporary-injunction-
o-39.html
2
id
3
Amer Raza khan, THE CODE OF CIVIL PROCEDURE 1908, order 39, p no (1073-1102)

1
 2. Legal provisions

Pakistani courts regulate the granting of a temporary injunction in accordance with the procedure

laid down under Sections 94, 95 and Order XXXIX of the Civil Procedure Code, whereas,

temporary and perpetual injunctions are prescribed in the Specific Relief Act.4

3. Temporary injunctions under CPC

Order 39 rule 1states that if the defendant attempts to dispossess the plaintiff or otherwise cause

harm to the plaintiff in relation to any property in dispute in the suit, the Court will grant a

temporary injunction to prevent such an act or make other orders to prevent the plaintiff's

dispossession or for the purpose of preventing the causing of injury to the plaintiff in relation to

any property in dispute.5

If the defendants are creating third party interest/rights as he is trying to dispose of part of the

property, the plaintiff can claim the injunction. Temporary injunction is a provisional remedy

that is invoked to preserve the subject matter in its existing condition. Its purpose is to prevent

dissolution of the plaintiff's rights. The main reason for use of a temporary injunction is the need

for immediate relief. If the defendants are creating third party interest/rights as he is trying to

dispose of part of the property, the plaintiff can claim the injunction.6

Order 39 rule 2 says that In any suit for restraining the defendant from committing a breach of

contract or other injury, of any kind, whether compensation is claimed in the suit or not, the

plaintiff may at any time after the commencement the suit and either after or before judgment,

apply to the court for a temporary injunction to restrain the defendant from committing the

4
Legal Service, Suits Barred under CPC: Law of temporary injunction, January 12, 2018
5
Aamer Raza, Civil Procedure Code,1908
6
id

2
breach of contract or an injury complained of, or any breach of contract or injury arising out of

same contract. Any other injury is likely to be caused or likely to be repeated; or Where the

Court is of the opinion that for protection of interest of any party to the suit or in the interest of

justice injunction or stay is required and necessary. 7

Order 39 rule 3 talks about before granting injunction, court to direct notice to opposite party.

The court will grant a temporary injunction if the following conditions are satisfied by the case:

 The plaintiff must be able to establish a prima facie case. He is not required to establish the

clear title but a substantial question that requires to be investigated and that matter should

be preserved in the same status as it is until the injunction is finally disposed off.8

 An irreparable injury may be caused to the plaintiff if the injunction is refused and that

there is no other remedy open to the applicant by which he could protect himself from the

feared injury.9

 The balance of convenience requires that the injunction should be granted and

compensation in money would not serve an adequate relief.10

3.1 Prima facie case

The expression "prima facie" means at the first sight or on the first appearance or on the face of it,

or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought

7
ratikaattri, Temporary Injunctions, Oct 20, 2014,
https://www.scribd.com/document/243623013/Temporary-Injunction.

8
Amer Raza khan, THE CODE OF CIVIL PROCEDURE 1908, order 39, p no (1073-1102)
9
id
10
Id(6)

3
on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case

would mean that a case which has proceeded upon sufficient proof to that stage where it would

support finding if evidence to contrary is disregarded. "Prima facie case" is a substantial question

raised bona fide which needs investigation and a decision on merits. The Court, at the initial stage,

cannot insist upon a full proof case warranting an eventual decree. If a fair question is raised for

determination, it should be taken that a prima facie case is established. The real thing to be seen is

that the Plaintiffs claim is not frivolous or vexatious.11

3.2 Balance of Convenience

To see balance of convenience, it is necessary to compare case of parties, comparative mischief or

inconvenience which is likely to sue from withholding the injunction will be greater than which is

likely to arrive from granting it.

In Anwar Elahi vs Vinod Misra And Anr. 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.12

3.3 Irreparable injury

Irreparable injury' means such injury which cannot be adequately remedied by damages. The

remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in

11
Seuba, X., Temporary Injunctions. In the Global Regime for the Enforcement of Intellectual
12
Anwar Elahi vs Vinod Misra And Anr, 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341.

4
case of success in the suit would not place him in the position in which he was before injunction

was refused. 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 man’s 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.” No injunction could be granted under O. 39, rr. 1 and 2 of the Code unless the

plaintiffs establish that they had a prima facie case, meaning thereby that there was a bona fide

contention between the parties or a serious question to be tried.13

4. Discharge and variation of order of injunction

Order 39 Rule 4 lays down that any order for an injunction may be discharged or varied or set

aside by the court on an application made thereto by any party dissatisfied with such order. is

further provided that if an application for temporary Injunction, or in any affidavit supporting such

application, a party has knowingly made a false or misleading statement in relation to a particular

matter and the injunction was granted without giving notice to the opposite party, the court must

vacate the injunction unless for the reasons to be recorded, it considers that it is not necessary so

to do in the interests of justice.14

13
Legal Service, Suits Barred under CPC: Law of temporary injunction, January 12, 2018,
http://www.legalserviceindia.com/legal/article-267-the-concept-of-temporary-and-perpetual-
injunction.htm
14
Property Rights (pp. 199-222), Cambridge: Cambridge press.

5
 5. Injunction on corporations

0rder 39 Rule 5 says that An Injunction directed to a corporation is binding not only on the

corporation itself, but also on all the members and officers of the corporation whose personal action

it seeks to restrain.15

6. Section 94 and 95 of CPC

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 of Civil Procedure Code 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 fails 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 not be the extent of the pecuniary Jurisdiction of the Court trying the

suit.16

7. Case laws

7.1 Hassan Yusuf Khan vs. Syed Ashia Ali

The court held that Order 39 Rule 1 and sec-151 do not entitle the court to issue injunctions

against the lawful owner. The grant of an id interim injunction is an extraordinary thing. It is not

15
Amer Raza khan, THE CODE OF CIVIL PROCEDURE 1908, order 39, p no (1073-1102)
16
Amer Raza khan, THE CODE OF CIVIL PROCEDURE 1908, order 39, p no (1073-1102)

6
permissible to grant it unless the plaintiff is undoubtedly entitled to a decree and the defendant is

undoubtedly liable or likely to take away the fruits of the decree. Therefore, inherent power

under section 151 cannot be used as a regular affair when the remedy is available in a specific

provision.17

7.2 Umer Gul Vs Abdul Manan

Grant of temporary injunction Essentials Besides a good prima facie case, other two equally

important ingredients viz. irreparable loss and balance of convenience must also co-exist for

grant of relief of temporary/interim injunctions.18

7.3 Syed Mahmood Ali Gerdezi and Another Versus Syed Rabia Beg Um And 10 Others

Mere failure of the plaintiff to claim for relief of injunction in the main suit would not be a

ground for refusal of the temporary injunction in all suits. The dispute,-in that case arose out of a

suit for specific performance and my learned brother was pleased to grant temporary injunction,

restraining the respondent from alienating the land in dispute during the pendency of that suit.

That a Court is not prohibited from issuing temporary injunction in suits in which a decree for

permanent injunction is not prayed for. 19

7.4 Nawabzada Saadat Khan Versus Military Estate Officer, Kohat Circle Kohat Cantt.
Kohat and 7 Other

O.XXXIX, Rr.1 & 2 Grant or refusal of temporary injunction. Principles for grant or refusal of

temporary injunctions were; Firstly, whether plaintiff had made out a prima facie good legal

17
Hassan Yusuf Khan vs. Syed Ashia Ali, 2002(CLC)96
18
Umer Gul Vs Abdul Manan, P L D 1992 Peshawar (76)
19
Nawabzada Saadat Khan Versus Military Estate Officer, Kohat Circle Kohat Cantt. Kohat and 7 Other, 2004 M L D
1130

7
case; secondly, whether balance of convenience lay in favor of grant of injunction and thirdly,

whether plaintiff would suffer irreparable loss if injunction was refused to him. Trial Court while

considering application for grant of temporary injunction, formed the view that plaintiff bad

failed to make out a prima facie case and said view was upheld in appeal. Plaintiff had

complained that by giving such a finding, Trial Court had virtually disposed of suit---Such

observations could not have been avoided by Court while dealing with application for grant of

temporary injunction, if question involved in application for grant of temporary injunction was

inextricably linked with suit itself. Essential ingredients for grant of temporary injunction being

missing in case, plaintiff was rightly held not entitled for relief of temporary injunction

concurrently by Courts.

8. Conclusion

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. Every court is constituted for the purpose of administering

justice between the parties and therefore, must be deemed to possess all such powers as may be

necessary to do full and complete justice to the parties before it. A temporary injunction is a

preliminary relief that seeks to protect the subject in the existing condition, without the

defendant’s interference or threat. It is intended to protect the plaintiff from disposing of, or to

destroy or damage his property (subject), or against any injury to the plaintiff.

8
 9. Bibliography

Amer Raza khan, THE CODE OF CIVIL PROCEDURE 1908, order 39, p no (1073-1102)

Anusha, Temporary Injunction O-39, http://www.legalserviceindia.com/legal/article-2444-

temporary-injunction-o-39.html

ratikaattri, Temporary Injunctions, Oct 20, 2014,

https://www.scribd.com/document/243623013/Temporary-Injunctions

Aamer Raza, Civil Procedure Code,1908

Specific Relief Act (I of 1877)

PLD 1978 Karachi 152; NLR 1978 Civil 769.

Legal Service, Suits Barred under CPC: Law of temporary injunction, January 12, 2018,

http://www.legalserviceindia.com/legal/article-267-the-concept-of-temporary-and-perpetual-

injunction.html

Seuba, X., Temporary Injunctions. In the Global Regime for the Enforcement of Intellectual

Property Rights (pp. 199-222), Cambridge: Cambridge press.

Hassan Yusuf Khan vs. Syed Ashia Ali, 2002(CLC)96

Umer Gul Vs Abdul Manan, P L D 1992 Peshawar (76)

Nawabzada Saadat Khan Versus Military Estate Officer, Kohat Circle Kohat Cantt. Kohat and 7

Other, 2004 M L D 1130