FAQ : IS THERE A CONCEPT OF RESTRAINING ORDERS IN INDIA?

  • August 10, 2017
  • 11:10 am
  • Kainat Singh

The concept of restraining order is not yet available in India, but something that is clandestinely similar and based on the same principle is known as an injunction which is a judicial remedy that prohibits people from doing a particular act or ordering them to undo a wrong done.

The procedure for granting an injunction is given under Section 94, 95 and Order XXXIX of the Civil Procedure Code and even under Section 36-42 of the Specific Relief Act.

There are two types of injunctions –

1) Temporary Injunction

A temporary injunction may be granted during the suit through an interlocutory application. This is the kind of Injunction that is used so as to preserve the subject matter in the preexisting conjunction. It is an option that is usually exercised when immediate relief is required. The same is usually done through Section 94 (c) & (e) of the Code of Civil Procedure. Section 95 talks about compensation that is reasonable enough when the injunction proved to be unnecessary.

Ex-pate injunction may also be granted in exceptional cases.

2) Perpetual Injunction

An injunction may also be perpetual whereby it restrains an individual from doing an act for perpetuity. It can only be granted via a final decree only after hearing the entire case and on the merits of the suit.

Specific Relief Act, Section 38 illustrates the circumstances under which such an injunction may be granted. Section 41 of the same gives the circumstances under which the same may not be granted.

The nature of an injunction can be prohibitive, mandatory, preventive or restrictive

In order to file an order of injunction one should consider the amount of the suit relief and the court under whose jurisdiction the case falls. An application for the same order needs to be attached keeping in view the kind of injunction that is being prayed for. The appropriate amount of court fee should be given for the same.

An injunction is considered to be an equitable remedy and attracts the application of the maxim that he who seeks equity must also do the same. It is the discretion of the court whether or not it grants injunction in a particular case. This discretion is guided by judicial principles, especially in the case of temporary injunctions where the principles of prima facie case, irreparable injury, balance of convenience etc. are applied. And thus the same cannot be claimed as a matter of right.