Temporary injunction order 39 CPC 1908
Definitions
Temporary injunctions: An injunction is a judicial process by which a party is required to do
or to refrain from doing any particular act. It aims at preserving the subject-matter of the suit in
status qua for the time being. Injunctions are of two kinds: temporary and perpetual.
This order deals with temporary injunction which insures only until the disposal of the suit in
which it is granted or until further orders of court. Permanent injunctions can be granted only by
decree passed after the hearing of the suit on merit. Both temporary and permanent injunctions
are regulated by Specified Relief Act, 1963(sections 34 to 41).
Object
The underlying object of granting temporary injunction is to maintain and preserve status qua at
the time of institution of the proceedings and to prevent any change in it until the final
determination of the suit. It is the nature of protective relief granted in favour of party to prevent
future possible injury.
The need of such protection, however, has to be judged against the corresponding need of the
defendant to be protected against injury resulting from exercising his own legal rights the court
must weigh one need against another and determine where the balance of convenience lies and
may pass an appropriate order in exercise of its discretionary power.
Principles governing temporary injunctions:
The general principles governing grant of temporary injunctions is the same as those governing
the grant of perpetual injunctions. It is discretionary matter for the court and the person seeking
an injunction must satisfy the court. (Section 41, specific relief act).
So the court should see the bona fide of the contention between the parties and should also see on
which side the balance of convenience will lie in the event of success. The court should be
satisfied that there is a reasonable probability for the success of the plaintiff.
Temporary injunction order 39 CPC 1908
Firstly, that there is prima facie case between the parties.
Secondly, that the plaintiff will suffer irreparable laws in case the temporary injunctions is not
granted.
Thirdly, that the balance of convenience lies in favour of the plaintiff,
The court while exercising discretion in granting or refusing injunction should exercise sound
judicial discretion and should attempt weigh substantial mischief of injury likely to be caused to
the parties, if the injunction is refused and compare it with that which is likely to be caused to the
opposite party if the injunction is granted. If on weighing conflicting probabilities, the court is of
the opinion that balance of convenience is in favour of the applicant, it would grant injunction,
otherwise refuse to grant it.
Purposes
Temporary injunctions serve the following purposes:
1. Preserve property or assets in dispute
2. Prevent harm or injury to a party
3. Maintain public order
4. Uphold the rule of law
5. Insure justice is not frustrated
Types of Temporary Injunctions:
1. Mandatory Injunction: Orders a party to perform a specific act
2. Prohibitory Injunction: Restrains a party from committing an act
3. Quia Timet Injunction: Prevents anticipated harm or injury
Temporary injunction order 39 CPC 1908
Conditions for Granting Temporary Injunction:
1. Prima facie case: Plaintiff must show a strong case
2. Balance of convenience: Injunction must not cause undue hardship
3. Irreparable harm: Harm must be imminent and irreparable
Order 39, Rule 1-5:
1. Rule 1: Application for temporary injunction
2. Rule 2: Court's discretion to grant injunction
3. Rule 3: Notice to opposite party
4. Rule 4: Affidavit in support
5. Rule 5: Duration of injunction
Conclusion
In the general understanding of injunctions in Indian jurisprudence and as is the case presented
here, the reader must have noticed the intangible presence of the Specific Reliefs Act,1963 while
discussing Order 39 of the Code on Civil Procedure, 1908. This is because the essence of
injunctions is captured when the two documents are interpreted together. Their symphony is
what brings out the equity, good conscience, and goodwill of injunctions.
Thus, the rationale behind the provision of Order 39 of the Code of Civil Procedure, as laid down
by Hon’ble Supreme Court in the case of M. Gurudas and Ors. v. Rasaranjan and Ors. (2006) can
be summarized as “While considering an application for injunction, the Court would pass an
order thereupon having regard to prima facie, balance of convenience and irreparable injury“.