“The Grant of preventive relief Introduction to “ injunction” in brief”!
Article By: GAURASHWARI RATHOD BALLB( HONS) 1ST SEM, INDORE INSTITUTE OF LAW.
ABSTRACT
Injunction as a specific relief under the provision of the law needs to be highlighted, where the legal duty of any person is being restrained from the commission of such acts. The necessity for providing the injunctions matters in both civil and criminal cases, the factors upholding the basis of such relief grant varies apparently. This article is going to cover utter stretches of “Injunction” as a specific relief.
INTRODUCTION
Suppose you have came in a contract of property grant with the person where the terms and condition enist the non-modification of the property are strictly defined, the party next to you has modified the whole building as per its interest ,what will be the next step of yours? and what grant will you be getting as a relief from such a breach? “injunction” as a preventive relief will help you.
The court on the basis of three part test i)prima facie case ii) balance of convenience iii) irreparable harm/loss.1
INJUNCTION IN BRIEF
Overlooking the civil and criminal cases relating to the grant of a preventive relief via a certain provisions, one of them is through “injunction”.the injunction so granted in the form of either “temporary” or “perpetual” as defined under section 36 of specific relief act 1963. A preventive relief injunction is an order or command of the court preventing a party from doing something which he is under a legal duty not to do,2 the provision of injunction depends on the discretion of the court to grant or if you such relief notice mainly guided by the principles of justice equity3 and good conscience injunction as a preventive relief is originated from the equity to dispute of England, consequently England has borrowed the idea from the Roman law called “interdict”3 this interdict is divided among three main types i.e “prohibitory” “exhibitory” and “restitutory” the “ relief”evolved with the time is provided in both civil and criminal matters, the criminal injunctions are provided and section 152,143 and 163 of BNSS 2023.4 the provisions for
injunction in civil matters is passed under chapter 7th of part 3rd of specific relief act 1963 under section 36 to 425
Temporary injunction
The provision for the temporary injunctions are provided under section 37 of the specific relief act 1963
Temporary injunctions are granted and continued until a specific time or till any further order is passed by the court, this injunction is mainly provided for preserving the property until the final hearing of the case . The proof of prima facie case must be there from the side of plaintiff indicating his or her existence of a legal right in order to obtain the temporary injunctions.6
Section 39 rule one of code of civil procedure 1908 contains the following provision for granting the temporary junctions:-
1.If any property is in dispute or in danger of being wasted ,damaged or alienated by any party is being provided with an injunction as a relief.
2.When the threatening or intentions to remove or dispossess of the property is mainly done by the defendant with a view to defraud his creditors.
3.The plaintiff is being threatened by the defendant for dispossessing of the property or causing injury to the plaintiff in relation to the property dispute.
Perpetual injunctions
The provision for the perpetual injunctions is given under section 37(2) and 38 of the specific relief act 1963 this type of injunction can only be granted on the basis of merits of suit where the defendant is refrained from commission of certain acts and a certainty of a right contrary to the right of the plaintiff6
The conditions under which the injunctions is granted a define intersection 38 of specific relief act 1963 as follows:-
1.It is granted for preventing the breach of an obligation existing in the favour whether expressly or implied.
2.The court shall be guided to follow the rules and provision for specific performance of a contract contained in chapter 2nd of the act.
3.When the defendant invades or threatening to invade the plaintiff’s right to property or enjoyment then the perpetual injunctions can so be granted in the cases where ;
a.The defendant is the trustee of the property.
b.Where there is no standard for ascertaining the actual damage caused by the invasions.
c.Compensations are not nearly enough for fulfilling the damage so caused.
d Injunctions become necessary for reducing multiplicity of the judicial proceeding.7
The ways in which the concept of injection could be studied or understood in a more Broader way through certain illustrations as follows:-
1.If A has landed a property to B , and B contracts not to modify the properties so landed. A may sue for an injunction to restrain B from modifying in violation of the contract.
2. Trustee threatens breach of trust. His co-trustee, if any, should and the beneficial owners may sue for an injunction to prevent the breach.
Refusal of injunction
The importance of refusal of the injunction is as important as providing the provision itself the cases under which these induction can so be refused are listed under section 41 of specific relief act 1963 and listing the factors where:-
a.A person is rescinded from prosecuting a judicial proceeding pending at the institution of the suit in which the injunctions is sought , unless such restraint is necessary to prevent a multiplicity of proceedings.
b.Do not allow any person to commence the proceeding in any court where the injunction does not fall in its jurisdiction.
c. Any person from applying to any legislative body
d.To restrain any person from prosecuting any criminal proceeding.
e. To any such contract breached whose performance is not specifically enforced.
f.For any case which is not reasonably clear from the ground of nuisance.
g.To prevent any breach in which the plaintiff has filed the suit after a long time.
h.Can’t be granted if the relief could be substituted with any other usual mode of proceeding exception:breach of trust.
i.When the malice intent of the plaintiff is clear and is in the manner to dissentitle him to the assistance of the court.
j.When the plaintiff acquires no personal intent in the matter.
Prohibitory injunctions
The prohibitory injunctions prohibit or forbids the commission of the act governed by section 38 these are mainly granted for preventing the breach of obligation existing in the plaintiff’s favour.
Mandatory injunctions:-
This injunction is mainly provided to compel the performance of a certain acts as per section 37 of the specific relief act 1963 obtaining a mandatory injunction leads to the burden of proof existing from the plaintiff’s side.
The provision of granting the injunction for the performance of negative injunctions are provided under section 42 of the specific relief act 1963 where if the court is unable to compare the specific performance of affirmative agreement will result for the performance of the negative agreement.
With the ultimate evolution of time the variability in the number of cases in different eras and fields are extending up to the limitless stretches for concluding the cases at a positive note . The court today requires a “test” for judging the righteous condition capable of being granted with the provision of injunctions, the test should be remained with the equity test laid down in the “American cyanamid vs ethicon Ltd.”8Shows the basic requirement for provision of injunction, if not so available the damage should be provided. The rules for providing the injunctions are to a certain degree of flexibility.
Conclusion
The rate at which injunction is granted today follows its trajectory sloping upwards in the graph of cases dissolved. where the introduction to injustice even happen at a pace for the sake of being provided with the injunction as a relief following the case of” Mr Jagannath” the judges added to the judgement that “one who comes to the court must come with clear hands more often than not process of court is being abused”9
Therefore the courts while granting such relief must be vested with the actual facts and must be extra alert and cautious while granting the “injunctions” orders , the idea and concept of “equity” and test to “prima facie” must be upheld at a transparent note.
1.Lucknowhttps://ijtr.nic.in
2. R.K Bangia , 550 page number
4.PRSIndiahttps://prsindia.orghttps://blog.ipleaders.in/
5.India Codehttps://www.indiacode.nic.in
7.https://www.indiacode.nic.in
8.lawteacher.nethttps://www.lawteacher.net
9.Indian Kanoonhttps://indiankanoon.orgSmt. Jagannathiya vs State Of U.P. And Ors. on 25 May, 2006
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