Friday, 20 February 2015

All about temporary injunctions

The conduct of the parties in a case is equally important. Because the grant of injunction is a relief in equity, the party seeking such a relief must come to court with clean hands. Additionally, care must be taken to exercise the right at the first instance. Delay can be fatal to the grant of such relief.

In the Mandali case there was a family dispute regarding partition. The appellants sought an injunction against the defendants from preventing the appellants from digging pits and putting up constructions etc. and also preventing the defendant from inter-alia alienating the property in favour of third parties. In the Mandali matter, the court also held, ‘A person who had kept quiet for a long time and allowed another to deal with the properties, exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one.’

The object of granting most temporary injunctions is to maintain status-quo between the parties till the court has had the opportunity to make a considered adjudication of the rights of the parties. Mere interference with legal rights, is in itself, not sufficient for the grant of an injunction. And for the grant of a temporary injunction, the threat or the actual wrong should be underway.

Once the wrongful act has been done, it cannot be undone by way of a temporary injunction. For instance, if the tenant undertakes illegal construction, the time to seek a temporary injunction would be when the act is threatened or being undertaken. Once the illegal construction has been undertaken, the same could only be removed by way of a mandatory injunction.

A mandatory injunction is an injunction whereby the court is required to command the defendant to undertake a positive act. In the present example, the order of the court to demolish the illegal construction would be a mandatory injunction.

Typically, courts are reluctant to pass mandatory injunctions at the ad-interim or exparte stage and would pass an order of this nature after having had some opportunity to appreciate the evidence before it and having given both parties an opportunity of been heard.

An action requiring the courts adjudication on the basis of a threat is known as a qui a timet action. Unless the circumstances are overwhelming, the courts are reluctant to pass injunctions to prevent a threatened or perceived wrong.

Where ‘damages’ is an adequate relief, for the alleged wrong, an injunction cannot be granted. For instance, if a lease provided for payment of damages, in the event there was a delay in the payment of rent by the tenant to the landlord, no injunction would be granted in the event of a breach of this clause. The court would decline any request for an injunction in such circumstances, since the lease provides for damages as an adequate remedy.

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