INJUNCTION INTERIM

INJUNCTION INTERIM

WHEN TO BE REFUSED OR GRANTED

Interlocutory injunction are those issue at any time during the pendancy of the litigation for the short term purpose of preventing irreparable injury to the petitioner prior to the time that the court will be in a position to either grant or deny permanent relief on the merit. In accordance with their purpose, interlocutory injunction are limited in duration to some specified length of time, or at the very outside, to the time of conclusion of the case on the merits. Within the category of interlocutory injunction there are two distinct types which must be considered individually. The first is generally referred to as a preliminary injunction, and includes any interlocutory injunction granted after the respondents has been given notice and opportunity to participate in a hearing on whether or not that injunction should issue. The second is generally referred to as a temporary restraining order and differs from preliminary injunction primarily in that it is issued exparte, with no notice or opportunity to be heard granted to the defendant. Temporary restraining order supply the need for relief in those situation in which the plaintiff will suffer irreparable injury if relief is not granted immediately, and time simply does not permit either the delivery of the notice or the holding of a hearing.

In general sense every order of the court which command or forbids is a injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam by which, upon certain established principles of equity a party is required to do or refrain from doing a particular thing. An injunction has also been defined as a writ framed according to the circumstances of the case commanding an act which the courts regards as essential to justice or restraining an act which it estimes contrary to equity and good conscience; as a remedial writ which court issues for the purpose of enforcing their equity jurisdiction; and as a writ issuing by the order and under the seal of a court of equity.

The general rule in India litigation is that a party gets no relief till he has gone to trial and persuaded to the court that he has a right which has been infringed. He is not entitled to an interlocutory injunction, just because he has a strong case. He is only so entitled if it is shown that there could be injustice if the defendant is left unfettered and that there is a serious risk of irreparable damage to the plaintiff. In the first place the plaintiff should show that there is some serious need for the defendant to be restrained.

Following from this, the three classic requirements or deciding factors before an injunction can be granted are

(a) prima facie case

(b) balance of convenience

(c) irreparable injury caused to the affected party.

(a) PRIMA FACIE CASE

The aggrieved party must be able to establish that he has a prima facie case in support of the right claimed by him, that is the court must be satisfied that there is a bona fide dispute raised by the applicant, that there is a strong case for trial which needs investigation and a decision on merits. Courts have pointed out that at the stage of granting interim relief,

(a) they should avoid a mini-trial and

(b) should only look at whether the applicant's case is not vexatious or frivolous and whether it deserves to go to trial or not. the applicant is not required to also prove that he has a good chance of winning the case altogether when the case reaches the stage of trial. And to determine if there is a prima facie case, the court must make reference to all the documents available such as plaint, affidavits, applications and other material placed at its disposal and see whether the applicant has a better chance of success or not as compared to the other party's chances of success.

(b) DOCTRINE OF BALANCE OF CONVENIENCE

The court must also be satisfied that the balance of convenience is in the applicant's favour. The balance of convenience will tilt in favour of that party which is put to greater inconvenience; if injunction is refused/granted and later the suit is decreed/dismissed respectively. In balancing the comparative conveniences/inconveniences from granting/refusing injunction, the court will take into consideration what means it has of putting the party who may be ultimately successful in the position he would have stood if his legal rights had not been interfered with.

The governing principle is to first consider if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant;s continuing to do what was sought to be enjoined between the time of the application and the time of the trial.

(c) IRREPAIRABLE INJURY

The applicant must further satisfy the court that he is bound to suffer irreparable damage if injunction is not granted and that there is no other remedy available to him and it is of such nature that cannot be simply monetarily compensated. Therefore, if injunction is not granted and later the suit is decreed, the court will ask the defendant to compensate the applicant for whatever loss was caused to the plaintiff by being barred from exercising his right. But it may so happen, that the defendant will be in no position to compensate that loss, arising either out of his own inability to pay or due to the nature of the injury caused.

Thus, the extent to which the disadvantages to each party would be incapable of being compensated in damages in the even of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies; and if the extent of the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each parti's case as revealed by the affidavit evidence adduced on the hearing of the application.

EXCEPTIONAL CIRCUMSTANCES

Mostly, the courts are reluctant to conduct a mini-trial at the stage of granting injunction. But depending upon the particular circumstances of individual cases exceptions have been created. In case of industrial disputes, where there is a strike,with picketing, blocking etc., the plaintiff;s business is greatly injured; the courts invariably assess the relative strength of each party's case and grant or refuse an injunction accordingly.

The apex court in Dalpat Kumar -vs- Prahlad Singh reported in AIR 1993 Supreme Court 276, laid down that the existence of the prima facie right and infraction of the enjoyment of property or the right is a condition for the grant of temporary injunction. Prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. the court further has to satisfy that non-interference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction. Thirdly, the court should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties.

CONCLUSION

For a considerable period of time, primal facie case was given undue importance. It assisted the parties to arrive at an earlier view on prospects and thus reduce costs of litigation based on the logic that the petitioner was very likely to succeed at the end of the day, it will be convenient to grant interim interdict and prevent the defendant from infringing his rights.