An injunction is a judicial remedy by which a person is ordered to refrain from doing or todo a particular act or thing. It is a remedy of equitable nature not available in common law. Injunctioncan be granted as a decree on adjudication of a suit. It can also be granted during the pendency ofsuit when it is called a temporary injunction. The power to grant an injunction during the pendencyof a suit without finally adjudicating the rights of the parties thereto flows from the provisions ofSec.94 of the Civil Procedure Code. From the opening words of Sec.94 of the Civil ProcedureCode it is amply clear that such powers are given to prevent the ends of justice from being defeated.Hence, if there is any apprehension that the defendant may by his action change a state of things inrespect of the subject matter of dispute in such a way that a decree eventually passed would becomemeaningless or ineffective or difficult to execute the Court can exercise the power of granting aninjunction to prevent such an intended on apprehended action. For example In a case of specificperformance of agreement to sell an immoveable property or a suit for redemption/foreclosure ofmortgage, the court may restrain alienation of the property during the pendency of the suit by exercisingthe power to grant temporary injunction.
The detailed instructions regarding temporary injunction are available in Order 39 of theCivil Procedure Court. A temporary injunction is of two types. The one which is granted even whenan application for temporary injunction has not been decided and it operates till the disposal of suchoperationis called ad interim injunction. It may be confirmed or vacated or modified when theapplication for temporary injunction is decided.
There are three well known basic principles for seeking/granting an order U/O 39 rules 1
C.P.C., They are:
1. Prima facie case;
2. Balance of Convenience;
3. Irreparable damage;
The foremost of these principles is prima facie case. The concept of a prima facie caseneeds to be clearly understood. Generally speaking prima facie case means a good case. That is to
say that the case on first sight appears good on merit and a good case to go in for trial. A primafacie case implies the probability of the plaintiff obtaining relief on the material placed before thecourt. As explained by the high court of Kolkatta in AIR 1997 Cal 67 in examining the prima faciecase the court is called upon to see whether the party who has approached to court has a plausible case and whether there is a possibility of such a case succeeding at a trial.
Therefore, the case of the plaintiff should be free of any technical flaws and also have meritin it. The technical aspects like jurisdiction, maintainability, limitation, court fees etc. come up forexamination before any order for exemption is granted. Therefore, the lawyer who drafts a suitexpecting a temporary injunction at the interlocutary state must take care of all these aspects. It isnecessary now to take a look at these aspects individually.
JURISDICTION OF CIVIL COURT
A very wide jurisdiction has been conferred on the civil courts by Section 9 of the CivilProcedure Code. But in certain matters the jurisdiction of the civil courts is barred.Section 9 CPC says.
“Sec.9 – Courts to try all civil suits unless barred.
The courts shall subject to the provisions herein contained have the jurisdiction to try all suitsof civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”
An action which can be brought under the Industrial Disputes Act in the Labour Courts orIndustrial Tribunals cannot be brought before the civil courts as the jurisdiction of the civil courts areimpliedly barred by the enactment of the Industrial Disputes Act.
Some other enactments that specifically or by implication bar the jurisdiction of the CivilCourt are land reform laws, the Land Acquisition Act, certain rent control legislations like the DelhiRent Control Act, certain Municipal Acts like the Punjab Municipal Act, the Municipal Corporationof Delhi Act etc. Hence the lawyer filing a civil suit will do well to examine the competence of thecourt where he is going to file his case. In case the jurisdiction of the civil court is barred, the lawyerhas to find out what is the appropriate forum where the intended action can be filed and what arethe procedural aspects of such forum.
Section 15 to 21 give us the provisions governing the territorial jurisdiction of the courts.The objection to jurisdiction can be raised at the earliest possible opportunity and no objection to
the jurisdiction of the court can be raised at the appellate on revisional stage.
PROVISIONS OF ORDER 7 OF THE CIVIL
At this stage it is necessary to draw the attention of the young lawyers to the provisions of
Order VII of the Civil Procedure Code. Order VII rule 1 C.P.C. provides, inter alia that theplaintiff must state the facts constituting the cause of action and when it arose, the facts showing thatthe court has the jurisdiction and the value of the subject matter of the suit for the purpose of courtfee and jurisdiction. The failure to mention these facts may lead to rejection of the plaint. u/o 7 rule11 C.P.C. or return of the plaint u/o 7 rule10 C.P.C.
The question of limitation is something that has to be examined at the very initial stage. If the
plaint is liable to be rejected for the want of the mandatory pleadings, no temporary injunction canbe sought. If the suit is clearly barred by time, the same can be dismissed. If the suit is prima faciebarred by limitation, the plaintiff cannot claim to have a prima facie case in his favour.
Limitation has to be computed from the date of cause of action. In case the Plaintiff pleads
the extension of limitation for any reason the same has to be specifically pleaded. The documents insupport should also be in place. In case the plaintiff claims the cause of action to have arisen fromthe date of knowledge of an event the lawyer should take care to mention how the plaintiff obtainedthat knowledge.
Appropriate court fee should be paid before seeking an injunction. However in a case of an
indigent person, the counsel may pray for certain reliefs even before paying the court-fee. Thecounsel is well advised to cite the specific law and rulings on the point, when such a prayer is made.
Pleadings should be sufficient to make out a prima facie strong and probable case. Although
181the court cannot, at the inter-locutory stage, give a finding on merits and may proceed on the basisof documents, the court will be vigilant in weighing the respective cases of the parties. Therefore, thecase should not be an inprobable one and the events leading to the cause of action should appear tobe natural.
The rules of pleadings have to be followed. For exampleIf fraud is pleaded details of howthe fraud was committed should also be specifically pleaded as provided in order 6 of the Code ofCivil Procedure. Similarly if the case is based on contract the contract should be a valid and subsistingcontract. If the contract is a written contract it should be ascertained that the document is written onan appropriate stamp paper. Similarly the questions of registration, authentication and execution etc.have to be examined.
If the suit is for a specific performance of a contract it is necessary to plead that the plaintiff
has always been ready and willing to perform the contract. The plaintiff should also plead instancesto show the readiness of the plaintiff. It has to be remembered that grant of equitable relief isgoverned by the specific relief act. Therefore, the provision of the Specific Relief Act has to be keptin view while praying for temporary injunction. Sec.41 of the Specific Relief Act bars grant ofinjunction in certain situations. Those provisions will also apply for temporary injunctions.
BALANCE OF CONVENIENCE
Balance of convenience is an important consideration at this stage. Since the relief of interim
injunction is an equitable relief, the court shall also consider whether the comparative mischief orinconvenience which is likely to ensue from withholding the injunction will be greater than that whichis likely to arise from granting it, which means that the balance of convenience is in favour of theplaintiff seeking injunction ( DorabCawasji Warden V/s Coomesorab Warden (1990) 2 Sec 117).
Irreparable damage does not mean that the damage can never by repaired. It only meansthat the damage caused cannot be adequately compensated by money. Sometimes, in law,compensation may be available, but in a given case it may be difficult or well-nigh impossible torecover such damage. Such cases may be considered as cases of irreparable damage.
AD INTERIM INJUNCTION &PROVISIONS OF ORDER 39 RULE 3 CPC
Grant of an ex-parte order of an interim injunction is not a rule but an exception. Order 39
Rule3 directs that the court shall issue a notice to the Defendent before granting an injunction. It isonly by way of exception that it is provided that where it appears that the object of granting injunctionwould be defeated by the delay that an ex-parte injunction can be issued. It is further provided thatif the court proceeds to grant an injunction without giving notice of the application to the oppositeparty the court shall record its reason for its opinion that the object of granting injunction would bedefeated by delay.
In all such situations where an ex-parte injunction is issued the court has to require theplaintiff to deliver to the Respondent or to send to him by Registered Post a copy of the application for injunction together with a copy of the application filed in support of the application, a copy ofplaint and copies of documents on which the plaintiff relies and to file an affidavit on the day followingthe grant of injunction that the copies mentioned by have been so delivered.
While issuing an interim ex-parte injunction the court is expected to examine the following aspects:
The drafting lawyer should remember that the principles of grant of equitable relief will haveto be followed by the plaintiff and accordingly all the conditions mentioned above should be completelycomplied with.
INTERIM INJUNCTION IN A MANDATORY FORM
Grant of a mandatory injunction is permissible under order 39 of CPC. However, courtsare generally very slow in granting this kind of relief. Instances where such reliefs are granted areactually very rare. If the court is called upon to grant a relief on any interlocutory application, whichwhen granted would mean granting substantially the relief claimed in suit the court, will be slow andcircumspect in the matter of granting such prayer. Temporary mandatory injunction can be grantedonly in rare cases where there are compelling circumstances and where the injury complained of isimmediate and pressing and is likely to cause extreme hardship. No interim mandatory injunctioncan be granted if such an injunction means decreeing the suit (AIR 2005 SC 1444).
When a mandatory injunction is issued the court has to expeditiously decide the applicationduring the pendency of which such an order is made.
At times an injunction may appear to the refrain dependents but in effect mandates the
defendant to do some task the court should be careful in granting such injunctions and examine allthe pros and cons of the consequences of passing such an order.
An appeal lies from an order refusing as well as from one granting temporary injunction. Anorder under Rule 1, Rule 2, Rule 2A, Rule 4, or Rule 10 of Order 39 is appealable under theprovisions of Order 43 Rule 1(r) of the CPC.
Order 39 Rule 3 requires the court to issue notice of the application for injunction to theopposite party before granting any injunction. It is only in the case where it appears that object ofgranting the injunction would be defeated by the delay that an injunction can be issued before anotice is served on the respondent. When an ex parte order of injunction is issued pending notice tothe defendant and final hearing of the application under Order 39, the order becomes an appealableorder under Order 43 Rule 1 (r) of CPC. When only a notice is issued without granting an order ofinjunction, the same does not become appealable.
Where the ex parte injunction order is issued, the remedy of seeking discharge or settingaside or varying that order of injunction is available with the defendant under Order 39 Rule 4 CPC.
This remedy is available in addition to the remedy of an appeal. The defendant may opt for any ofthe two reliefs.
A second appeal is barred as per the provision of Section 104 (2) of the CPC. The partyaggrieved by the order of the appellate court can approach the High Court by way of a civil revisionpetition.
DISOBEDIENCE OR BREACH OF AN ORDER OF INJUNCTION &ENFORCEMENT
The remedy of violation of an injunction order is provided in Order 39 Rule 2A. The courtissuing the injunction may order the person guilty of disobedience or breach to be detailed in civilprison for three months or may order attachment of his property. This is the appropriate remedy.
No action under the Contempt of Courts Act is called for, nor is such action appropriate. Thepunishment under order 39 rule 2A is primarily to indicate the dignity of court and to elicit respectand submission for administration of justice. Police protection is also available to the party in whosefavour an order of injunction is passed whether at an interim exparte stage or later an order oftemporary injunction when the application for injunction is disposed off.
Mere possession, however long, does not necessarily mean that it is adverse to the trueowner. Adverse possession really means hostile possession, which is expressly or impliedly in denialof the title of the true owner. In order to constitute adverse possession, the possession proved mustbe adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner.The classical requirements of acquisition of title by adverse possession are that such possession indenial of the true owner’s title must be peaceful, open and continuous. The possession must be openand hostile enough to be capable of being known by the parties interested in the property though itis not necessary that the adverse possessior actually informs the real owner of his adverse hostileaction(T.Anjanappa V/s Somalingappa (2006) 7 SCC 570).
The Hon’ble Supreme Court dealt with the concept of possessory rights and the pleadingsrequired to establish a right to continue in possession.In A Shanmugam V/s AryiaKhatriyaRajakulaVamsathuMadalayaNandhavanaParipalanaiSangam (2012) 6 SCC 430 (paras 67 to 71-pages
“67. In an action for recovery of possession of immovable property, or for protectingpossession thereof, upon the legal title to the property being established, the possessionor occupation of the property by a person other than the holder of the legal title willbe presumed to have been under and in subordination to the legal title, and it will befor the person resisting a claim for recovery of possession or claiming a right to continuein possession, to establish that he has such a right. To put it differently, whereverpleadings and documents establish title to a particular property and possession is inquestion, it will be for the person in possession to give sufficiently detailed pleadings,particulars and documents to support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadingswith particulars. Once the title is prima facie established, it is for the person who isresisting the title-holder’s claim to possession to plead with sufficient particularity onthe basis of his claim to remain in possession and place before the court all suchdocuments as in the ordinary course of human affairs are expected to be there. Onlyif the pleadings are sufficient, would an issue be struck and the matter sent to trial,where the onus will be on him to prove the averred facts and documents.
69. The person averring a right to continue in possession shall, as far as possible, give a
detailed particularized specific pleading along with documents to support his claim184and details of subsequent conduct which establish his possession.
70. It would be imperative that one who claims possession must give all such details asenumerated hereunder. They are only illustrative and not exhaustive:
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents;
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession—whether he purchased the property or inheritedor got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken iton rent, how much is the rent, licence fee or lease amount;
(h) if taken on rent, licence fee or lease—then insist on rent deed, licence deed or lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, inwhat capacity; as family members, friends or serants, etc:
(j) subsequent conduct i.e. any event which might have extinguished his entitlementto possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
71. Apart from these pleadings, the court must insist on documentary proof in support ofthe pleadings. All those documents would be relevant which come into existence afterthe transfer of title or possession or the encumbrance as is claimed. While dealingwith the civil suits, at the threshold, the court must carefully and critically examinethe pleadings and documents.”
In this context one has to read also the forerunner to this advice which is available in thecase Maria Margarida SequeiraFernandes vs. Erasma Jack de Sequeira(2012)5 SCC.370the relevant portion is which is as under:
“Experience has shown that all kinds of pleadings are introduced and even false andfabricated documents are filed in civil cases because there is an inherent profit incontinuation of possession. In a large number of cases,honest litigants suffer anddishonest litigants get undue benefit by grant or refusal of an injunction because theCourts do not critically examine pleadings anddocuments on record. Incase whilegranting or refusing injunction, the Court properly considers pleadings and documentsand takes the pragmatic view and grants appropriate mesne profit, then the inherentinterest to continue frivolous litigation by unscrupulous litigants would be reduced toa large extent.”
Will is document of inheritance. It operates after the death of the executant or the testator. It
is the last will that operates. Any previous will, though registered cannot be given effect to. It ishowever, necessary that the will set up by the plaintiff satisfies the condition of a valid will viz.intelligent execution, attestation by the two witnesses and the testator signing in presence of the twowitnesses.
Section 59 of the Indian Succession Act-provides that every person of sound mind notbeing a minor may dispose of his property by will. A woman is not disqualified from making a will.
If a woman possesses property which she can alienate, she can dispose of the property by her will.
Section 61 of the Indian Succession Act speaks of fraud, coercion or importunity in makinga will. The principle laid down is that a will or any part of a will, the making of which has beencaused by fraud or coercion, or by such importunity as takes away the free agency of the testator isvoid.
Sec 62 of the Indian Succession Act clearly lays down that a will is liable to be revoked or
altered by the maker of it at any time when he is competent to dispose of his property by will.
The mode of making a will is provided in section 63 of the Act as under:-
(a) The testator shall sign or shall affix his mark to the will.
(b) The signature or the mark of the testator shall be so placed that it shall appear that
it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen thetestator sign or affix his mark to the will or has received from the testator a personalacknowledgement of his signature or mark but it shall not be necessary that morethan one witness be present at the same time.
As for proof of a will reference can be made to section 68 of the Evidence Act. At least one
attesting witness has to be produced in the witness box to prove the execution and attestation of thewill unless, however, none of the attesting witnesses are alive or they are not subject to the processof the court. If the will is registered, the sub-registrar can be an attesting witnesses if the executantacknowledged before him the signature on the will (AIR 2005 SC 4362-Pentakota SatyanarayanaV/s. PentakotaSeetharatham)
RIGHT OF A CO-SHARER
When a co-sharer in a property wants to assert his right in respect of the property, the best
efficacious relief is partition. However, if one of the co-sharer wants to sell his undivided share, theother co-sharer has a right of pre-emption. Care should be taken to check the provisions of the CourtFee Act, 1870 as well as of the Suit Valuation Act, 1887 while going in for a suit for partition.
VALUATION FOR COURT FEE AND JURISDICTION
The partition suit fall in two categories viz. (i) in which the plaintiff has been ousted frompossession and; (ii) in which he is in the joint possession.So far as the first category is concerned, the plaintiff has to claim possession of the propertyand he has to value the suit for the purpose of Court Fee under Section 7(v) of the Court Fee Act onthe market value of the share in the property. When the plaintiff is in the joint possession, the court feewill be paid as per Section 7(iv) (b) of the Court Fee Act. So far as valuation of the suit is concerned,the filing lawyer should refer inter-alia to Section 9 of the Suit Valuation Act, 1887. The High Courtshave been empowered by Section 9 to issue directions about valuation of suit in certain cases.
The High Court of Punjab framed rules under this Section providing that value of the suit for
the purposes of Suit Valuation Act, 1887 and Punjab Courts Act 1918, shall be the value of the wholeof the property as determined by Section 3, 8 & 9 of the Suit Valuation Act, 1887.
The same rules were extended to Delhi w.e.f. 01.08.1959. The filing lawyer will, therefore,examine the position in his own State in determining the value of the suit so that the suit is filed beforethe Court having pecuniary jurisdiction over the subject matter of the suit.
Justice Manju Goel (Retd.)