Temporary Injunction — Advocate at Asansol Court

Order 39 Rule 1 allows the court to grant a temporary injunction restraining a defendant from wasting, damaging, alienating or selling the property in dispute, or from committing a breach of contract or an injury of a kind that cannot be compensated in money. Rule 2 covers injunctions to prevent repetition of a wrong or to require the performance of a legal duty.

An application is filed along with the plaint, supported by an affidavit and documents, and the court may grant an ex parte order in an urgent case while issuing notice. The defendant then files objections and a reply and a contested hearing follows. Because these orders are discretionary, the quality of the pleadings and documents decides the outcome more than the length of the argument.

An application for a temporary injunction should not be confused with the permanent injunction finally granted by the decree after trial. The temporary order protects the property until then. Where the suit itself does not claim a permanent injunction, the court may hold that the interim relief has no foundation, so the plaint must be drafted to match the application filed with it.

The applicant must first show a prima facie case, meaning that there is a serious question to be tried and the material on record suggests a genuine claim. The court examines the title documents, the mutation records from the Block Land and Land Reforms Officer at Asansol, the rent or tax receipts and the possession evidence, without conducting a full trial of those very questions.

Possession matters in practice. Where the plaintiff is in settled possession and the defendant is a stranger, courts are readier to grant protection. Where the plaintiff has neither title nor possession, a prima facie case is weak however long the dispute has run. Photographs, an injunction commissioner's report and municipal records can all be used to show the state of the property.

Because the court examines documents at this stage, certified copies of the sale deed, the record of rights and the mutation order should be filed with the application. Loose photocopies without explanation carry little weight, and an affidavit making sweeping claims without documents is the commonest reason for refusal in the Asansol civil court. Every assertion must be traceable to a document on record.

The second test is the balance of convenience: which party suffers more if the order is granted or refused. A defendant who is blocked from completing a house suffers a substantial loss if the suit ultimately fails, whereas a plaintiff kept out of ancestral land may suffer an irreparable one. Courts weigh which risk is greater on the particular facts of the case.

The third test is irreparable loss, meaning an injury that money cannot repair. Demolition of a structure, felling of trees, a sale to a third party who then becomes a protected purchaser, or quarrying of land are standard examples. Where damages would fully compensate the injury, courts tend to refuse the injunction and leave the plaintiff to a money decree.

Where the position is unclear, or where the defendant has already altered the property, the court may simply order that the status quo as on a particular date be maintained until the suit is decided. A status quo order does not decide the rights of the parties. It freezes the situation so that neither side can improve its position by acting during the litigation.

Interim orders can also include appointment of a receiver, an injunction commissioner to inspect and report on the property, and directions for deposit of rent or profits. These orders are interim and can be modified or vacated if the material changes. An injunction obtained by suppressing material facts can be vacated with costs, so full disclosure is essential. Any party applying for such an order must also serve the application on the other side promptly, since an unserved interim order can be set aside.

An order granting, refusing or varying a temporary injunction is appealable. Against an order of the Civil Judge at Asansol, the appeal lies to the District Judge, and from there a second appeal or revision can lie to the Calcutta High Court in appropriate cases. The appellate court can itself grant an injunction during the pendency of the appeal. The appellate court hears the matter on the same affidavit and documentary material, with limited power to take fresh evidence at this stage.

An appeal against refusal is not a fresh trial. The appellant must show that the trial court ignored material documents, applied the wrong test or exercised its discretion perversely. Delay weakens the appeal. Where an injunction is refused and the defendant acts immediately, the appellant should apply without waiting for a certified copy of the judgment. An application for stay should be filed along with the appeal itself, supported by an affidavit setting out the urgency and the threatened act.

Given the time an appeal takes, a party whose injunction is refused should also consider applying for an early hearing of the suit or for a local inspection before the position on the ground is altered. Where the defendant acts during the appeal, a fresh application can be made to the appellate court for interim protection in the changed circumstances.