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    Friday, 16 December 2016

    Temporary Injunction

    1. Introduction
    An injunction is a judicial process through which some litigant is ordered to do a particular act or to refrain from doing a particular act. As far as nature of injunction is concerned, it can be mandatory or prohibitory. And as far as duration is concerned, it can be permanent or temporary. Temporary injunction is that injunction, which can be granted at any time of some suit and continues for a specified period or till further order of court is not passed.

    2. Relevant Provision
    Following are the relevant provisions of CPC regarding the topic of temporary Injunction.
    v  Order 39 Rule 1, 2, 3, 4, 5 of Code of Civil Procedure
    Cross Reference
    v  Section 94 and Section 151 of CPC
    v  Section 52, 53, 54, 55, 56, 57 of Specific Relief Act.

    3. Basic Ingredients of Temporary Injunction

    Following are basic ingredients of temporary Injunction:

    i. Prima Facie Case
    Temporary injunction can be granted when applicant is able to show that he will get decision of case in his favor. Therefore, first ingredient of temporary injunction is prima facie case. To grant temporary injunction, court is to assess whether applicant’s case is prima facie or not and applicant is to prove existence of prima facie case in his own favor.

    ii. Irreparable Loss
    Temporary injunction can be granted when there is possibility that applicant will suffer irreparable injury or damage. Therefore, second ingredient of temporary injunction is irreparable loss. However, temporary injunction cannot be granted when loss is ascertainable and pecuniary compensation is available for such loss.

    iii. Balance of Convenience
    Temporary injunction can be granted when balance of convenience is in favor of applicant. In fact, court is to examine whether applicant will suffer greater inconvenience in case of withholding of temporary injunction or not. If applicant will suffer greater inconvenience, court is to grant temporary injunction.

    4. Procedure regarding issuance of Temporary Injunction

    Following points are important for explanation of procedure regarding issuance of temporary injunction

    i. Suit or application for Temporary Injunction
    Court can grant temporary injunction when suit or application for injunction is filled with affidavit.

    ii. Suit for restraining of repetition or continuance of Breach
    Court can grant temporary injunction in any suit for restraining of repetition or breach of contract or other injury of any kind when compensation is claimed or is not claimed in such suit.

    iii. Issuance of Notice to opposite party
    Before granting temporary injunction, court should direct in all cases that notice of application for temporary injunction should be given to opposite party. However, exception has been provided against such issuance of notice.

    iv. Exception
    In following cases, issuance of notice to opposite party is not necessary

    a. Sale of goods
    Issuance of notice is not necessary when there is case of sale of goods for default in payment of that is case of sale of goods for default in payment of that debt in respect of which goods were pledged with any bank.

    b. Case against government or government Servant or Statutory authority, Board or corporation
    Issuance of notice is not necessary when injunction is to be granted against government or government servant or any statutory authority, board or corporation, which has been established or set up by government, and when case is that case, which does not involve ejectment of any person from any premises or which does not involve demolition of any premises.

    v. Issuance of Temporary Injunction
    Following points are important as far as issuance of temporary injunction is concerned

    a. Interim injunction in absence of Defendant
    When temporary injunction is granted in absence of defendant, such injunction should not exceed fifteen days. However, such injunction can be extended in either of following tow situations:

    a-i. Failure of Service of Injunction on defendant
    After such fifteen days, temporary injunction can be extended for failure of service of such injunction on defendant when such failure is not attributable to plaintiff.

    a-ii. Defense of application for injunction
    After such fifteen days, temporary injunction can be extended when defendant seeks time for defense of application for injunction.

    b. Ceasing of order of injunction after hearing of parties or after notice to defendant
    After hearing both the parties or after notice to defendant, order of injunction should ceases to have effect on expiration of six months. However, court can extend such order after hearing both the parties. But it is necessary that reasons should be recorded for such extension and report of such extension should be submitted to High Court.

    vi. Discharging, Varying or setting aside of order for injunction
    When order of injunction is made and some party, who is dissatisfied with such order, makes application, court can discharge, vary or set aside such order.

    5. Disobedience or Breach of Injunction

    Following points are important for explanation of disobedience or breach of injunction

    i. When court can deal with disobedience or Breach of injunction
    Court, which has granted temporary injunction, can deal with disobedience or breach of temporary injunction.

    ii. Attachment of Property of guilty
    This court can order for attachment of property of that person, who is guilty of disobedience or breach of temporary injunction.

    iii. Duration of attachment
    Attachment of property of guilty of temporary injunction should be for one year.

    iv. Sale of Property of guilty
    At end of one year of attachment, if disobedience or breach continues, attached property can be sold.

    v. Awarding of compensation
    Out of such sale, court can award that compensation, which it thinks fit, and should pay balance to that party, who is entitled to such balance.

    vi. Detaining of guilty in prison
    Court can also order to detain guilty of temporary injunction in prison.

    vii. Duration of imprisonment
    Guilty of temporary injunction can be kept in detention for six months. However, court can direct his release during such detention.

    Conclusion
    To conclude, it can be stated that temporary injunction can only be granted in pending cases. It reveals that court cannot grant temporary injunction after final disposal of suit or after dismissal of suit in default. However, temporary injunction can be granted when application of restoration of suit is pending. Another settled principle is that no permanent structure can be made through temporary injunction because effect of temporary injunction remains subject to final decision of case. 
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    Item Reviewed: Temporary Injunction Rating: 5 Reviewed By: Usman Ali
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