मनाई हुकूम म्हणजे काय आणि मनाई हुकूमाचे प्रकार Different Kinds of Injunctions in Indian Civil Law?

मनाई हुकूम हा एखाद्या प्रकरणात काय करावे आणि काय करू नये, याबाबत वादी, प्रतिवादीला न्यायालयाकडून मिळालेले आदेश म्हणजेच मनाई हुकूम. Specific Relief Act आणि Civil Procedure Code मध्ये याबाबत तरतूद करण्यात आली असून प्रक्रीया सुद्धा दिली आहे.

मनाई हुकूमाचा अर्थ आणि हेतू Meaning and Object of Injunction

An Injunction is an equitable remedy which is “a judicial process that compels a party to refrain from doing or to do a particular act or thing”. If any person disobeys the Order of Injunction passed by the Competent Court then there can be stiff monetary penalties and even imprisonment in certain cases. The primary 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. However, Injunction can also be modified or dissolved if circumstances change in future. Section 94, 95 and Order 39 of the Civil Procedure Code 1908 precisely talks about the Injunctions and whereas, the Temporary and Perpetual injunctions are defined under section 36 to 42 of the Specific Relief Act 1963.

How Many Kinds of injunction?

1. Prohibitory Injunction:- As the name suggests this kind of injunctions is granted by the Competent Court to restrains or forbids a person from doing some act i.e. the order is passed as not to do any act, in favour of the applicant. Prohibitory Injunction is also known as Preventive or Restrictive Injunction.

For Example, X and Y are residing in the same Society. Y wanted to trespass the X premises unlawfully. X claim before the competent court for Injunction to direct Y that “Y should not enter X premises”. This direction or order to Y – i.e. telling not to do a certain kind of act is a Prohibitory Injunction or Preventive or Restrictive Injunction.

2. Mandatory Injunction
It’s somewhat a mandate of the court and the Competent Court can grant this Mandatory Injunction to do some positive act or compels, commands or orders some person to do something in a particular manner. Section 39 of the Specific Relief Act, 1963 does not define this kind of injunction, but this categorically deals with the grant of Mandatory Injunction. In mandatory Injunction two elements have to be taken into consideration before granting Mandatory Injunction: a) There must be an obligation on the part of the defendant to perform certain acts, the breach of which obligation must be alleged by the plaintiff and b) Relief must be enforceable by the court.

Example: “A” a tenant, without the permission of the Landlord has built a garden terrace which is an addition to the rented house. According to the leave and Licence agreement, “A” has to take prior permission of the Landlord to do any type of alterations/addition/changes to the rented house. So here “B” may seek a mandatory injunction to demolish the garden terrace which “A” has built without the permission of the Landlord.

So basically, Mandatory Injunctions are sometimes availed of as reliefs in the nature of ‘quia timet’ (meaning- because he fears), that is, in a proper case, a mandatory injunction may be granted when there is a fear or threat of infraction of the plaintiff’s right before the actual occurrence of the infraction.

3. Permanent or Perpetual Injunctions: This is like the final order of the court. Perpetual or Permanent Injunction is granted by the courts to restrain the party forever or permanently or perpetually from doing the act complained of. However, this perpetual or permanent injunction can only be granted after the final hearing and decree have been passed by the court and this is completely decided on the merits of the case. Permanent or Perpetual Injunctions are governed by section 38 to 42 of the Specific Relief Act, 1963. It determines the rights and liabilities of the parties finally.

For example “A” a father in a Hindu family intended to alienate the family property. B, C, and D, the legal heirs of A. B filed an injunction suit against A wherein A was restrained from alienating the family property more than his own share. The B doesn't need to wait until the waste (damages to house/property) is actually committed to bringing an action for an injunction but is sufficient if such an intention is expressed by the A.

4. Temporary Injunction: This is mostly exercised and used sort of relief in many cases, so it’s one of the most important kinds of Injunctions. Temporary Injunction is granted by the Court when the Defendant is about to make some injury to the property of the Plaintiff or threatens the Plaintiff to dispossess the property or creates a thirty party interest in the property, or creates obstacles or obstructs from taking advantages of the property in peaceful possession. In such a situation, the Court may grant a temporary injunction to restrain the Defendant to do such an act or make other order to prevent the dispossession of the plaintiff or prevent the causing of injury to the plaintiff about any property in dispute or creating any thirty party rights in the property.

The temporary injunction is granted, ‘ex parte’ in some cases as per the urgency of the case. The reason is, a temporary injunction is an interim remedy that is raised to reserve the subject matter in its existing condition and which may be granted on an interlocutory application at any stay of the suit. Its purpose is to prevent the suspension of the plaintiff’s rights. Section 94 of the CPC provides the supplemental proceeding so that Plaintiff can prevent this right, wherein Section 94 (c) and (e) of Code of Civil Procedure, the Court may grant a temporary injunction or make such other interlocutory orders. These are temporary injunction because their validity is until the further order passed by the court or until the final decree of the case.

Ad-interim Injunction: It’s granted during the pendency of the application and operates till the disposal of the application. In Ramrameshwari Devi vs. Nirmala Devi and Ors. Civil Appeal No. 49/2011[2] – the Supreme Court held that the Court should be extremely careful and cautious while granting ex-party ad interim injunctions or stay orders. Ordinarily, short notice should be issued to the Defendant/Respondent and only after hearing both the parties concerns Court can pass the appropriate orders. It is called T.I. in short and usually given Exhibit No. 5.

An application for an interim injunction along with an affidavit may be made by both Plaintiff or Defendant. Order 39 Rule (1) a any party to the suit can apply for a Temporary Injunction. An Injunction may be issued only against a party and not against a stranger or third party. Further, the injunction cannot be issued against the Court or Judicial Officers.

What Are the Basic Principles of Temporary Injunction (T.I.)?

Granting the temporary injunction is the exercise of discretion which should be in a judicial manner and there is no hard and fast rule. It is a settled rule that, before granting the Temporary Injunction, the Judge has to consider whether the Application is falling into the below-mentioned categories and the applicant or the Plaintiff shows- Prima Facie Case, Irreparable Injury, Balance of Inconvenience and Other Factor in favour of him or her.

What’s Meaning and How all the Basic Ingredients Are Identified In Cases Laws?

Is it a Prima Facie case: In every application, the Applicant/Plaintiff must make out a prima facie case in support of the right claimed by the Plaintiff? The Court should be pleased that there is a bonafide dispute between the parties wherein the investigation is needed. Plaintiff is given the burden to prove and satisfy the court by leading evidence or witness that he has a prima facie case in his favour. The plaintiff should come to Court with a clean hand and, if any material facts are suppressed by the Plaintiff then, in that case, the Plaintiff is not entitled or liable for any relief.

In Martin Burn Ltd vs. R.N.Banerjee 1958 AIR 79 SCR 514,[4] – The Supreme Court held that 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 led in support of the same were believed. It does not involve the determination of the conflict of evidence or complex questions of fact and law, which call for detailed arguments.

In Prakash Singh vs. the State of Haryana, 2002 (4) Civil L.J.71 (P.H.)[5] – The Court has explained that Prima Facie does not mean that a Plaintiff/Applicant should have a full proof case in his favour which will succeed in all probabilities. It means that the plaintiff/applicant has a case that cannot be rejected summarily or dismissed outright. It raises consideration that can be considered on merits.

In Orissa State Commercial Transport Corporation Ltd. Vs. Satyanarayana Singh[6] – It was held that it is sufficient to show that the Plaintiff/Applicant has a fair question as to the existence of his right and it is necessary to maintain the status quo till the matter is finally decided.

Irreparable Injury: The applicant must satisfy the court that he will suffer irreparable injury if the injunction is not granted. The Court is satisfied that the Plaintiff needs to be protected from the consequences of apprehended injury. An injury will be viewed as irreparable wherein there exists no certain monetary standard for calculating damages.

The expression irreparable injury however does not mean that there should be no possibility of repairing the injury. It only means that the injury must be a material one. i.e. which cannot be adequately compensated by damages. An injury will be regarded as irreparable where there exists no certain pecuniary standard for measuring damages.

The Supreme Court in Shanti Kumar Panda v. Shakuntala Devi, 03.11.2003[7], where the court held thus: ‘At the stage of passing an interlocutory order such as on an application for the grant of an ad-interim injunction under Rule 1 or 2 of Order 39 of the CPC, the competent Court shall have to form its opinion on the availability of a prima facie case, the balance of convenience and the irreparable injury __ the three pillars on which rests the foundation of any order of injunction.

In Best Sellers Retail India (P) Ltd. vs. Aditya Nirla Nuvo Ltd. – (2012 ) 6 SCC 792[8] – the Hon’ble Supreme Court held that only prima facie case alone is not sufficient to grant an injunction and the Court held that – “Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of the refusal of temporary injunction was not irreparable.“

Balance of Convenience: The Applicant must prove in this application that there is the balance of convenience must be in favour of the applicant i.e. the comparative mischief, hardship or inconvenience which is likely to be caused to the Applicant if the injunction is been refused. The balance of convenience comes into the picture when there is doubt as to the adequate remedies in damages available to either party or both.

In Bikash Chandra Deb vs Vijaya Minerals Pvt. Ltd.: 2005 (1) CHN 582[9], the Hon’ble Calcutta High Court observed that issue of balance of convenience. The Court shall slender in favour of overview of the concept of balance of convenience, but does not mean and suggest that the balance would be on one side and not in favour of the other. There must be a proper balance between the parties and the balance cannot be a one-sided affair.

In Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341[10] it was held that ‘Balance of convenience means comparative mischief or inconvenience. It can be 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 consider 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.’

Other Factors To Be Considered While Granting Temporary, Ad-interim Injunction: The Court also considers some other factors before granting the injunction. The relief of injunction may be refused on the ground of delay, laches or acquiescence, whether the applicant has not come with clean hands or has suppressed material facts, or where monetary compensation is adequate relief.

Ground for Granting Temporary Injunction From Court

Under Section 95 of CPC, it is specifically mentioned that the temporary injunction may be granted in any suit wherein the Court is satisfied that there are sufficient grounds to grant the temporary injunction. If the Plaintiff fails to prove sufficient grounds in his application then the Court may pass the suitable compensation to the defendant, in case the Defendant is claiming in his application.

Section 95 read with Order 39 Rule 1 and 2 empowers the Court to pass the temporary injunction

1. When there is a reasonable apprehension and danger of alienation or disposal of property by any party to the suit or by the wrongful waste of the property; or

2. When there is an apprehension of alienation or disposal of the property to defraud creditors; or

3. Where Defendant threatens to dispossess the Plaintiff or otherwise causes injury to the interest of the Plaintiff or otherwise causes injury to the interest of Plaintiff with the disputed property; or

4. When Defendant is about to commit a breach of contract; or

5. Any other injury is likely to be caused or likely to be repeated; or

6. Where the Court thinks that for protection of interest of any party to the suit or in the interest of justice injunction or stay is required and necessary.

When Temporary Injunction Cannot Be Granted?

1. To restrain any person from prosecuting a judicial proceeding at the institution of the suit, in which injunction is sought, unless restraint is necessary to prevent multiplicity of proceedings.

2. To restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that, from which injunction is sought.

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 could not be specifically enforced.

6. To prevent on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance.

7. To prevent a continuing breach in which the plaintiff has acquiesced,

8. When equally efficacious relief can be certainly be obtained by any other usual mode of proceeding except in case of breach of trust,

9. When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court.

10. When the plaintiff has no personal interest in the matter.

Conclusion: In short, the injunction is an equitable remedy and attracts the application of the maxim “he who seeks equity must do equity”. The Court has complete discretion to grant an injunction or to refuse it.

The Editor

भारतीय संविधान आणि भारतीय कायद्यांबाबत, तसेच कायदीय चालू घडामोडी, न्यायालयांचे निकाल, निर्णय, आदेशा याबाबत मराठी आणि इंग्रजी अशा दोन्ही भाषेतून वाचकांना ज्ञान मिळावे यासाठी हा ब्लॉग सुरू करण्यात आला आहे. कायद्याचे अभ्यासक, वकील, विद्यार्थी हे सुद्धा या ब्लॉगवर आपले लेख प्रसिद्ध करू शकतात. संपर्क:- अ‍ॅड. रावण धाबे, raavan@yahoo.com

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