DIFFERENCE BETWEEN TEMPORARY AND PERMANENT INJUNCTIONS

ABSTRACT

This research paper deals with the concept of Injunction, its types, differences, constitutional provisions etc. An injunction is a legal remedy provided by the court to prevent harm or enforce rights by either compelling a party to act or refraining from a specific act. It is commonly used in civil and commercial disputes to address irreparable harm that cannot be compensated by monetary means. The injunction can be temporary or permanent, and its issuance is based on factors such as the likelihood of harm, the balance of convenience, and the adequacy of other remedies. The Indian legal system, under the Specific Relief Act, of 1963, and the Code of Civil Procedure, of 1908, defines and governs various types of injunctions, including temporary, permanent, mandatory, and dynamic injunctions, each serving a different purpose. The article explores the types, applications, legal provisions, and differences between injunctions, particularly focusing on the criteria for granting them and the consequences of non-compliance. It also highlights the judicial discretion involved in granting injunctions and the complexities of injunction litigation.

KEYWORDS

Injunction, Court Order, Specific Relief Act, Temporary Injunction, Permanent Injunction, Mandatory Injunction, Dynamic Injunction, Civil Remedy, Legal Relief, Irreparable Harm, Code of Civil Procedure, India, Prevention of Harm, Equitable Relief, Judicial Discretion.

INTRODUCTION

An injunction is a court order that requires a party either to do something or not to do something. It is an order to prevent irreparable harm because monetary compensation cannot adequately cure the damage. It is often used in civil and commercial disputes and is, therefore, a form of equitable relief to prevent irreparable damage that cannot be adequately compensated by financial means. Under the Code of Civil Procedure, India (Section 37), an injunction is defined as a judicial process by which a party is required to do or to refrain from doing any particular act.

According to Black Law’s Dictionary, “A court order commanding or preventing an action to enforce legal rights or to avoid irreparable harm.”^[1]

An injunction may be issued to stop a threatened wrong or to halt an ongoing wrongful act. Non-compliance with an injunction may result in serious consequences such as criminal or civil penalties, and contempt of court charges, amongst others. The process of injunction litigation can be a rollercoaster ride as it may come with unpredictability, filled with lots of challenges and complex twists and turns.

At its core, an injunction provides preventive relief either preventing a defendant from engaging in certain acts or forcing them to so do as a way to prevent harm or nuisance to a plaintiff. When the ruling is given by the courts, it is upon such rulings that both parties have an obligation to comply. Lack of which may sometimes go as high as hefty fines or even imprisonment.

An injunction is a discretionary remedy. It can be either provisional or final. It has usually been applied in instances where it is necessary to immediately cease harmful actions, such as stopping the publication of material in question, stopping further constructions or sales of disputed properties, issuing search orders, or preventing someone from leaving the area or country. Injunctions constitute a powerful judicial tool of preventing the violation of rights but also to enforce one’s compliance with the rights of others.

The Indian legal system does not allow an application for an injunction unless there is a likelihood of irreparable injury. Irreparable injury refers to a situation where the harm caused to the applicant cannot be corrected or compensated in any other way.

MEANING

An injunction is a court’s legal remedy in civil matters, which orders one party to do something or refrain from doing it. The definition of an injunction also includes potential penalties such as fines or imprisonment if one disobeys the court’s order. Injunctions can lead to contempt of court if disobeyed. Injunctions are enforced, meaning that the court’s terms must be adhered to .^[2]

TYPES

The Specific Relief Act, of 1963 outlines different types of injunctions. To safeguard the plaintiff from potential harm, the plaintiff must demonstrate the adverse consequences they would face if the relief is denied. The Act specifies various forms of injunctions, which are detailed below –

Temporary (Interim or Preliminary) Injunction – Under Section 37 of the Specific Relief Act, 1963, a preliminary injunction is granted for a limited time or until further orders of the court. Such injunctive orders can also be passed at any stage of a suit and in view of the provisions mentioned under the Code of Civil Procedure, 1908. The main purpose they serve is to safeguard the interest of a person or protect property involved in the very suit till the final decree.

These factors are considered by the court while granting the temporary injunction as follows:

Whether the party seeking the injunction has a prima facie case;
Whether the balance of convenience favors the complainant; and
Whether the plaintiff would suffer irreparable harm if the injunction is not granted.

The period of a temporary injunction is left to the discretion of the court. In Union of India v. Bhuneshwar Prasad (1962), the Patna High Court rejected an application by the defendant challenging the order of the District Judge that confirmed the grant of a temporary injunction. The plaintiff was restrained from being removed from service as there was a prima facie case and the balance of convenience was in his favor.[3]

Under Rule 1 of Order XXXIX of the Code of Civil Procedure, 1908, temporary injunctions may be granted in various circumstances. These include situations where property in dispute is at risk of being wasted, destroyed, or unlawfully transferred, or when there is a threat of fraudulent disposal to defraud creditors. Temporary injunctions can also be issued to prevent harm to the plaintiff’s property, to stop the defendant from breaching a contract, or to prevent other forms of harm. Additionally, temporary injunctions can be granted when a perpetual or mandatory injunction under the Specific Relief Act, 1963, is not applicable. They may also be used to issue orders related to the transfer or termination of public servants, prevent adverse actions in disciplinary proceedings, limit elections, or halt government auctions and debt recovery actions unless proper security is provided.

Permanent or Perpetual Injunction – A perpetual injunction is awarded as part of the final judgment in a suit, thereby giving a final solution to the matter. Unlike temporary injunctions, it provides final relief and is not issued on an interim basis. Section 37(2) of the Specific Relief Act, 1963, defines perpetual injunctions, stating that they can only be granted by a decree after an inquiry and consideration of the case’s merits. When granted, the defendant is permanently restrained from acting in a manner that infringes upon the plaintiff’s rights.

Under Section 38 of the Specific Relief Act, a perpetual injunction may be granted under specific circumstances. It can be awarded to prevent a breach of duty owed to the plaintiff, whether explicit or implied. When the obligation arises from a contract, the court will follow the rules and provisions outlined in Chapter II of the Act. A perpetual injunction can also be issued when the defendant engages in or threatens to commit trespass or other forms of interference with the plaintiff’s property rights. This includes instances where the defendant acts as the custodian of the plaintiff’s property when there is a lack of a standard for assessing the actual damage caused, where monetary compensation is inadequate, or where an injunction is necessary to prevent multiple legal suits.

In Nuthaki Venkataswami v. Katta Nagi Reddy (1962), the court held that a champertous agreement (where a non-party funds litigation in exchange for a share of the proceeds) is not inherently void. If the recovery does not violate public policy, such agreements are not deemed illegal, and an injunction may be granted. Similarly, in Walter Louis Franklin v. George Singh (1996), the court also granted the plaintiff’s application for perpetual injunction, restraining the defendant from using land that was in his possession unlawfully, despite his assertion of ownership.

Mandatory Injunction – Section 39 of the Specific Relief Act, 1963, addresses the granting of mandatory injunctions, though it does not explicitly define them. The section empowers courts to compel certain actions to prevent the breach of an obligation, provided these actions can be enforced and address the complained infringement. Mandatory injunctions are primarily granted as final relief and not as interim relief, except in rare or extraordinary situations, such as to preserve life.

To grant a mandatory injunction, two key conditions must be satisfied:

The defendant must have an obligation to perform a specific act, and the plaintiff must claim a breach of that obligation.
The relief sought must be enforceable by the court.

The principle of a mandatory injunction requires the defendant to perform a positive act to rectify the wrongful action committed.

In Laxmi Narain Banerjee v. Tara Prosanna Banerjee (1904), the court granted a mandatory injunction when the defendant, a joint owner of land, planted trees whose roots damaged the foundation of the plaintiff’s building. The court held that the plaintiff’s property was being harmed and ordered the removal of the trees.[4]

Conversely, in N.E. Sankarasubbu Pillai v. Parvathi Ammal & Others (1960), the plaintiff sought a mandatory injunction, claiming encroachment on their land by the defendants. However, the court denied the injunction as the essential conditions for granting it were not met.

Other forms of Injunction –

An interlocutory injunction is a temporary injunction granted along the course of a suit to maintain the status quo between the parties pending the final order. It often occurs when the plaintiff’s legal rights and their infringement are under dispute. To grant or decline such an injunction, the courts consider whether there is a prima facie case and if the balance of convenience lies in favor of the petitioner. Besides, the court considers the possibility of the petitioner incurring irreparable harm but for the injunction.
An interim injunction is issued before the trial in cases of urgency where immediate action is required, usually ex-parte. On the other hand, an interlocutory injunction is issued after the commencement of the trial but before the final decision, after the hearing of both parties.
Dynamic injunctions, created for the purpose of combating digital piracy, block rogue sites and their mirror sites. These injunctions prevent intellectual property infringement and save courts from handling multiple suits. In UTV Software Communication Ltd. v. 1337X.TO (2019), the Delhi High Court issued a dynamic injunction to block infringing websites and their duplicates automatically. # Anton Piller Order (John Doe Order)
Just like in temporary and interlocutory injunctions, a preliminary injunction is awarded before the trial finishes with the intention of maintaining the status quo. It’s also termed an ad-interim injunction.
A Mareva injunction prevents a party from disposing of assets that may be required to satisfy a future judgment. Issued first in Nippon Yusen Kaisha v. Karageorgis (1975), it stops defendants from transferring funds outside the court’s jurisdiction where there is a strong prima facie case and risk of irreparable harm.
Quia Timet Injunction of English law pertains to threats of some potential injury or harm before some violation arises. It might be interlocutory or peremptory. But it is dispensed only when there’s strong proof of an actual violation looming in the vicinity. Take Mars Incorporated v. Kumar Krishna Mukherjee (2003): The Delhi High Court allowed a quia timet injunction when a threatened trademark infringement appeared

Each injunction has a purpose, whether it is protecting rights before the occurrence of harm or ensuring the enforcement of judgments. They represent the adaptability of the judiciary in dealing with different legal disputes. ^[5]

DIFFERENCE BETWEEN PERMANENT INJUNCTION AND TEMPORARY INJUNCTION

Legal Definition – A permanent injunction is issued following the conclusion of a full trial, with the purpose of permanently prohibiting any violation of the plaintiff’s rights. In contrast, a temporary injunction is a provisional remedy granted during the ongoing litigation to preserve the existing state of affairs and prevent irreparable harm.^[6]
Legal Provisions – A permanent injunction is mentioned under Sections 37(2) and 38 of the Specific Relief Act, 1963, whereas a temporary injunction is mentioned under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908.
Purpose – The purpose of a permanent injunction is to provide final relief and permanently prohibit a party from doing a specific act, whereas, in the case of a temporary injunction, the purpose is to prevent immediate harm or injury during the litigation procedures.^[7]
Duration –Thepermanent injunction is granted indefinite period of time unless modified by a higher court. But the temporary injunction remains in force only until the disposal of the suit or further orders.
Nature and Duration – A permanent injunction is issued as a final decree at the conclusion of a trial, permanently restraining the defendant from performing a specific act. It is perpetual in nature and does not require additional court orders for enforcement. On the other hand, a temporary injunction is a provisional measure granted during the pendency of a case to maintain the status quo between the parties. It remains in effect until the final judgment is delivered or until further orders are issued by the court.
Burden of Proof – For a permanent injunction, the plaintiff bears the burden of conclusively proving their legal right, the infringement of that right, and the occurrence of irreparable harm. In the case of a temporary injunction, the plaintiff is required to establish a prima facie case, demonstrate that the balance of convenience favors them, and show the possibility of suffering irreparable harm if the injunction is not granted.
Basis of Grant of Injunction – A permanent injunction is granted after a thorough examination of the merits of the case, including the evidence and arguments presented by both parties. In contrast, a temporary injunction is issued based on the establishment of a prima facie case, the balance of convenience favoring the plaintiff, and the likelihood of irreparable harm occurring if the injunction is not granted.

The relief sought – A permanent injunction serves as the final relief granted to the plaintiff, providing a conclusive resolution to the dispute. On the other hand, a temporary injunction offers preventive and protective relief during the interim period, ensuring that the plaintiff’s rights are safeguarded until the final judgment is delivered.^[8]

PROCEDURE FOR IMPOSITION OF INJUNCTION

Injunctive procedures involve steps that may vary between the temporary and permanent injunction. There is a general outline provided below of the procedure involved in obtaining both temporary and permanent injunctions under the law of India, which are primarily governed by the Specific Relief Act, 1963, and the Code of Civil Procedure (CPC), 1908.

Filing of Suit – The process of obtaining an injunction begins with the filing of a civil suit in the appropriate court, determined by the nature of the dispute and the value of the claim. The suit must include a prayer for an injunction, specifying whether temporary or permanent relief is sought, along with the specific relief requested. A permanent injunction is usually sought after the full trial of the case, whereas a temporary injunction is requested during the pendency of the suit to maintain the status quo and prevent irreparable harm.
Application for Temporary Injunction (Interim Relief) – When seeking a temporary injunction, the plaintiff must file an application for interim relief alongside the main suit. This application is typically submitted under Order XXXIX of the Code of Civil Procedure (CPC), specifically under Rules 1 and 2, which govern temporary injunctions. To support the application, the plaintiff is required to provide a detailed affidavit demonstrating the existence of a prima facie case, the balance of convenience in their favor, and the likelihood of irreparable harm if the injunction is not granted. Before issuing a temporary injunction, the court considers several factors.

First, the plaintiff must establish a prima facie case, showing the validity of their claim. Second, they must prove that they would suffer irreparable harm—damage that cannot be adequately compensated by money—if the injunction is denied. Lastly, the court assesses the balance of convenience, determining whether the harm likely to be suffered by the plaintiff without the injunction outweighs any potential harm to the defendant if it is granted.^[9]

Hearing of Temporary Injunction Applications – The court will schedule a hearing for the temporary injunction application, considering the urgency of the matter. In urgent cases, the court may grant the injunction ex parte, meaning without hearing the defendant, if there is an immediate risk of harm to the plaintiff. However, if the application is not urgent, the court will issue a notice to the defendant and schedule a hearing where both parties can present their arguments. This ensures that the defendant is given an opportunity to respond before any injunction is granted. The court carefully assesses the situation, balancing the urgency and the need for fairness in hearing both sides.^[10]

Passing of Temporary Injunction Order – If the court is convinced by the arguments presented, it may grant a temporary injunction. In doing so, the court will specify the exact terms of the injunction, outlining what actions are prohibited or required from the defendant. Additionally, the court will determine the duration of the injunction, which could either be until further orders or until the disposal of the case. To safeguard the defendant’s interests, the court may also direct the plaintiff to furnish a security bond, ensuring compensation for any costs or damages the defendant may incur if the injunction is later found to have been wrongfully granted.
Trial and Permanent Injunction – A permanent injunction is granted after a thorough trial where the plaintiff successfully proves their case. To obtain a permanent injunction, the plaintiff must demonstrate that they possess a legal right, that the defendant has violated or is threatening to violate that right, and that no adequate remedy, such as monetary compensation, is available.

Following a full hearing, the court may issue a permanent injunction, which permanently prohibits the defendant from committing a specific act or compels them to perform a particular action. This final remedy is available to the plaintiff provided they meet the criteria outlined in Section 37(2) of the Specific Relief Act.

Procedure for Imposing Permanent Injunction (Decree) – Once the trial is concluded and both parties have presented their respective cases, the court will review all the evidence, including testimonies, documents, and arguments put forth by the parties. Based on this review, the court will decide whether the plaintiff is entitled to a permanent injunction. If the plaintiff is successful in proving their case, the court will grant a permanent injunction through a decree, which is a final order that permanently restrains the defendant from taking specific actions that interfere with the plaintiff’s rights.

However, if the court finds that the plaintiff’s claim lacks merit, the injunction request may be denied, and the suit may be dismissed.

Appeal and Modification of Injunction – If a party is dissatisfied with the injunction order, whether temporary or permanent, they have the right to file an appeal under Section 96 of the Code of Civil Procedure (CPC) to challenge the order in a higher court. Additionally, a court has the authority to modify or vacate an injunction order if new evidence is presented or if there is a change in the circumstances surrounding the case. This allows for flexibility in ensuring that injunctions remain just and appropriate as the situation evolves.

CONSTITUTIONAL PROVISIONS

In the Indian legal system, the CPC, 1908, and the Specific Relief Act, 1963, primarily govern injunctions. Though the Indian Constitution does not explicitly provide for injunctions, various provisions are indirectly supportive of injunctions in respect of fundamental rights and judicial review.

Article 32: Right to Constitutional Remedies – Article 32 is the Right to Constitutional Remedies. It is also the right to approach the Supreme Court directly to redress the violation of one’s fundamental rights. Such a threat to violate the rights or their violations can be prevented by issuing an injunction by the court against such unlawful acts as unlawful deprivation of property and liberty.
Article 226 – Article 226 empowers the High Courts to issue writs, including prohibition and mandamus, similar to injunctions. A writ of prohibition can stop an executive body from exceeding its jurisdiction, while a mandamus can compel authorities to perform their duties. These writs offer constitutional remedies to prevent actions that harm an individual’s rights.
Article 14 Right to Equality – Article 14 provides for equality before the law and allows courts to issue injunctions in order to prevent arbitrary or discriminatory actions. In case an individual’s rights are violated due to unequal treatment, the court can issue an injunction to stop such discrimination and restore legal equality.
Article 21 Right to Life and Personal Liberty – It protects the right to life and personal liberty. Courts may grant injunctions to prevent an act that may endanger one’s life or liberty and that includes restraining unlawful detentions and violations of personal freedom.
Article 19 – Article 19 guarantees freedom of speech and expression with reasonable restrictions. If someone’s freedom of speech is unfairly restricted, an injunction can be issued to prevent violations such as defamation, censorship, or unlawful restraints on free speech.
Judicial Review – Judicial review is the power of courts to review the constitutionality of laws, actions, and policies. Injunctions can be issued to prevent the enforcement of laws or executive actions that violate constitutional principles or infringe upon individual rights.
Article 226 and Judicial Oversight – Article 226 empowers High Courts to issue writs like prohibition and certiorari, which are injunctions to prevent illegal actions. Such writs provide judicial review to ensure that the government’s actions are in accordance with the Constitution and not violative of the rights of the people.

LANDMARK CASE LAWS

The law of injunctions in India has been shaped by several landmark judgments that have clarified its principles and scope. In Dalpat Kumar v. Prahlad Singh (1992), the Supreme Court laid down three essential conditions for granting temporary injunctions: the existence of a prima facie case, a balance of convenience in favor of the plaintiff, and proof of irreparable injury if the injunction is not granted. Similarly, in Gujarat Bottling Co. Ltd. v. Coca-Cola Co. (1995), the Court emphasized that injunctions should not restrict a party from exercising lawful contractual rights unless the party seeking relief acts in good faith.[11]
The appellate court’s role in injunction matters was addressed in Wander Ltd. v. Antox India Pvt. Ltd. (1990), where it was ruled that appellate courts should only interfere with trial court decisions on injunctions if the decision is perverse or contrary to law. In K. Venkata Rao v. Sunkara Venkata Rao (1998), the Court clarified that permanent injunctions cannot be granted when alternative remedies exist or the plaintiff lacks a clear legal right.[12]
The concept of Quia Timet Injunction was introduced through cases like Redland Bricks Ltd. v. Morris (1970), which allowed injunctions to prevent anticipated harm before it occurs, and was later applied in Mars Incorporated v. Kumar Krishna Mukherjee (2003) to protect intellectual property from threatened violations. In the digital domain, UTV Software Communications Ltd. v. 1337X.TO and Others (2019) introduced the concept of dynamic injunctions, enabling courts to block rogue websites and their mirror sites to prevent copyright infringement.[13]
The John Doe (Ashok Kumar) order, first granted in Taj Television Ltd. v. Rajan Mandal (2002), provided a mechanism to tackle copyright infringement by unidentified defendants. Similarly, the concept of Mareva Injunction, introduced in Nippon Yusen Kaisha v. Karageorgis (1975), restrained parties from disposing of assets to secure potential judgments in favor of the plaintiff.
In Bishan Das v. State of Punjab (1961), the Supreme Court upheld that injunctions could protect possessory rights even without ownership, while in Cotton Corporation of India Ltd. v. United Industrial Bank Ltd. (1983), it ruled that injunctions against enforcing bank guarantees could only be granted in cases of fraud or irretrievable harm. Lastly, Modis Navnirman Nigam Ltd. v. Keshav Kumar Gupta (2001) held that injunctions against government auctions or the recovery of dues could only be granted if the plaintiff provided adequate security.

CONCLUSION

Injunctions are vital legal tools in both civil and commercial disputes, playing a crucial role in preventing harm and ensuring the enforcement of rights, especially in situations where monetary compensation cannot adequately address the damage. The Indian legal framework, guided by the Specific Relief Act, 1963, and the Code of Civil Procedure, 1908, establishes a structured approach to granting injunctions, with an emphasis on the necessity of proving irreparable harm, a prima facie case, and the balance of convenience in order to secure such relief. While temporary injunctions offer immediate, provisional relief during the litigation process, permanent injunctions provide final, conclusive resolutions after thorough examination and trial.

However, the process of obtaining an injunction is not without its complexities. Courts must carefully assess the merits of the case, balance competing interests, and determine whether the injunction is the most appropriate remedy. This process often requires a detailed analysis of the likelihood of harm, the availability of alternative remedies, and the potential impact on both the parties involved and the public interest. Furthermore, non-compliance with injunctions—resulting in contempt of court, fines, or imprisonment—underscores the importance of adhering to court orders and highlights the legal system’s commitment to enforcing its decisions.

In conclusion, injunctions are indispensable legal instruments that help maintain justice, uphold rights, and compel compliance with legal obligations. When used effectively, they prevent unlawful actions and protect individuals from irreparable harm. However, their application must always be guided by careful judicial discretion to ensure fairness and avoid misuse. As legal disputes continue to evolve, the judiciary’s ability to adapt and issue appropriate injunctions will remain a cornerstone of the legal system’s efficacy in providing timely and just resolutions.

REFERENCES

Ipleaders. Difference between temporary and permanent injunction. [online] Available at: https://blog.ipleaders.in/temporary-permanent-injunction/ (Last accessed – 18 Dec. 2024).
India Law LLP 10 Types of Injunctions under Civil Laws. [online]. Available at: https://www.indialaw.in/blog/civil/types-of-injunctions-under-civil-laws/ (Last accessed – 18 Dec. 2024).
Ipleaders. Injunction: All you need to know about it. [online] Available at: https://blog.ipleaders.in/injunction-all-you-need-to-know-about-it/ (Last accessed – 18 Dec. 2024).
The Indian Constitution Art. 14
The Indian Constitution Art. 19
The Indian Constitution Art. 21
The Indian Constitution Art. 32
The Indian Constitution Art. 226

^[1] Black’s Law Dictionary 177 (4th ed.)

^[2] Code of Civil Procedure, India (Section 37)

[3] Union of India v. Bhuneshwar Prasad (1962), AIR1963PAT196

[4] Laxmi Narain Banerjee v. Tara Prosanna Banerjee (1904) (1904) ILR 31CAL944

^[5] (Khatri 2023)

^[6] K Venkata Rao v. Sunkara Venkata Rao (1998), Dalpat Kumar v. Prahlad Singh (1992)

^[7] Walter Louis Franklin v. George Singh (1996), M. Gurudas v. Rasaranjan (2006)

^[8] (Pandey 2024) Laxmi Narain Banerjee v. Tara Prosanna Banarjee (1904), Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai (2006)

^[9] Dalpat Kumar v. Prahlad Singh (1992)

^[10] Wander Ltd. v. Antox India Pvt. Ltd. (1990)

[11] Dalpat Kumar v. Prahlad Singh (1992) AIR 1993 SC 276 b, Gujarat Bottling Co. Ltd. v. Coca-Cola Co. (1995) 1995 AIR 2372

[12] K. Venkata Rao v. Sunkara Venkata Rao (1998) 1998(6) ALD278

[13] UTV Software Communications Ltd. v. 1337X.TO and Others (2019) AIRONLINE 2019 DEL 773

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