An injunction is a judicial process to make a party do or refrain from doing something. There are mainly three kinds of injunction. The Code of Civil Procedure (hereinafter referred to as “CPC”) defines a temporary form of injunction under Order 39 which could be granted at any stage of the suit. Ex Parte injunctions are temporary form of injunctions governed by the above order of CPC.
As a principle, Courts will only grant ex parte injunctions under very rare circumstances. Courts may not grant an ex parte injunction as a matter of course. Read a related post in this link. Ever wondered what is the thought process of a judge when he hears an injunction application or what are the factors which the Courts consider while deciding upon ex parte injunction applications. For knowing the same read this post.
An injunction can be filed by both plaintiff and defendant. In this short note, we point out certain circumstances or factors that are considered by the Court for granting an ex parte injunction. [For reading about the basic points in a temporary injunction, please visit this link.]
The deciding factors for granting an ex parte injunction are as shown below:
Irreparable injury
This is a common term used in all injunction applications. The plaintiff will state that he will be met with serious injuries or mischief if the injunction is not granted. The same will be irreparable also. So he prays for a wise decision from the Court. Simply “prevention is better than cure”. Here the plaintiff is in fact, warning about the incurable harm which he will be met with if the defendant is not stopped from his wrongdoings.
Hence, the Court will have to consider whether the act alleged is likely to cause injury to the plaintiff and also whether it will be impossible to rectify or repair the same. The Court may not grant favorable relief to plaintiff if it feels that the injury that may be caused to the plaintiff is not irreparable. This was stated by the honourable Supreme Court of India in M/s.Best Sellers Retail (I) Pvt.Limited vs. M/s.Aditya Birla Nuvo Ltd. and others[1].
Weighing injustice
Since the plaintiff is asking ad interim ex parte injunction, the Court could not weigh any evidence as nothing in detail is placed before it. In fact, no detailed evidence is adduced at that stage as the defendant will be absent. So if the Court grants an injunction, it may turn out to be harmful to the defendant for the time being. But hesitation to grant the same could prove fatal to the plaintiff also. So this is the point when Courts consider whether refusing to grant such an ex parte injunction will cause more harm than granting it. If the Court arrives at the conclusion that the greater injustice will be involved in refusing the application, the Court will grant ex parte injunction.
First knowledge
The injunction application will contain sentences showing dates when the cause of action arose. These dates will be the ones representing the wrongful acts of the defendant. This date is an important aspect considered by the Courts while entertaining an injunction application.
The Court will consider the time at which the plaintiff first had actual notice of the alleged wrongful act of the defendant. Here the Court looks for any delay in filing the application. The Court looks into the fact of notice/knowledge to the plaintiff to ascertain whether there is any urgency as claimed by the plaintiff. If the application is filed after a reasonable days’ delay there will be no problem. But if it is a month or so, the Court will definitely think that there is no urgency for the plaintiff.
Protest
It is in human nature that people protest against any wrongdoings by others. But in many cases when the parties involved are close relatives, neighbors et cetera people may not protest though they are reluctant to accept their wrongs. However, in the case of an injunction application, the lack of protest will prove to be a downside.
The form of protest may be a serious talk, argument, discussion including important people of the locality, a duel or a police case et cetera. The Court will consider whether an attempt was made from the part of the plaintiff to stop the action of the defendant. If there was such an attempt, this matter will be weighed in favor of the plaintiff to entertain his application and he may succeed in getting an ex parte injunction.
Good faith
The plaintiff must act honestly. Also, he must not act negligently. There should be no unfair dealings from the part of the plaintiff towards the defendant which brought up the act complained of in the application. He must not suppress any material facts. In fact, the party must approach the Court with clean hands.
Prima facie case
There should be a prima facie case between the parties. The Court will try to ascertain if there is any real question of dispute in the case of the plaintiff. There should be a bonafide contention between the parties. The Court will look into the basic facts of the case to ascertain this aspect. If there is no serious question that exists to be considered by the Court, this may be a factor for not entertaining an ex parte injunction application.
Balance of convenience
The balance of convenience He himself was not responsible for bringing out the present stage complained of. The Courts will compare the loss caused to either party to decide upon the question of passing the injunction order. If the balance of convenience tilts in favor of the plaintiff/applicant, he may succeed in getting a favorable order of ex parte injunction against the defendant/respondent.
Conduct of parties
The Court will also look into the conduct of parties in the dispute while hearing the application for an injunction.
Conclusion
An injunction is an equitable relief. It is the discretion of the Court to grant or reject the relief. As per Section Twenty-Two of the Specific Relief Act, the act of granting an injunction is discretionary. At the same time, this discretion shall not be arbitrary. Though the Court is not bound to grant discretionary reliefs, it should be reasonable. If the Court decides in favor of the applicant, it is required to give a reasoned order. Material points have to be taken care of by the Court so as to exercise the discretion properly. The case of Morgan Stanley Mutual Fund vs. Kartick Das[2], also depicts the above factors.
An injunction is an equitable relief. It is the discretion of the Court to grant or reject the relief. As per Section Twenty-Two of the Specific Relief Act, the act of granting an injunction is discretionary. At the same time, this discretion shall not be arbitrary. Though the Court is not bound to grant discretionary reliefs, it should be reasonable. If the Court decides in favor of the applicant, it is required to give a reasoned order. Material points have to be taken care of by the Court so as to exercise the discretion properly. The case of Morgan Stanley Mutual Fund vs. Kartick Das[2], also depicts the above factors.
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Footnotes
1, CIVIL APPEAL Nos. 4313-4314 OF 2012
Footnotes
1, CIVIL APPEAL Nos. 4313-4314 OF 2012
2, 1994 SCC (4) 225, JT 1994 (3) 654
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