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How to get a restraining order

हिंदी में पढ़ें
August 14, 2022
By Advocate Chikirsha Mohanty



Restraining Orders commonly go by the term ‘Injunction’ in India. An injunction/ restraining orderis a Judicial Remedy prohibiting persons from doing a specified act called a restrictive injunction or commanding them to undo some wrong or injury called a mandatory injunction and may be either temporary, interim, interlocutory, or permanent. A relief of injunction cannot be taken as a right, it is based on discretion.

Indian courts regulate the granting of a temporary injunction following the procedure laid down under Sections 94, 95, and Order XXXIX of the Civil Procedure Code, whereas, temporary and perpetual injunctions are prescribed by Sections 36 to 42 of the Specific Relief Act.

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An injunction can be further classified into two types:



1. Temporary Injunction

A temporary or interim injunction may be granted on an interlocutory (during a suit) application at any stage of a suit. It is a provisional remedy that is invoked to preserve the subject matter in its existing condition. Its purpose is to prevent the dissolution of the plaintiff’s rights. This type will be used when there is a need for immediate relief.

Section 94 (c) and (e) of the Code of Civil Procedure contains provisions under which the Court may grant an injunction and Section 95 of the Civil Procedure Code further provides for reasonable compensation when such injunction is proved to be unnecessary.

As per Rule 3 of Order XXXIX of the Code of Civil Procedure, the power to grant an ex-parte interim injunction in exceptional circumstances also rests with the court.

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2. Perpetual Injunction

A party against whom a perpetual Injunction is granted is thereby restrained forever from doing the act complained of. It can only be granted by a final decree made at the hearing and upon merits of the suit.

Sub-section (3) of Section 38 of the Specific Relief Act in clauses (a), (b), (c), and (d) further illustrates the circumstances wherein perpetual injunction may be granted by the Court.

Section 41 of the Specific Relief Act, 1963, provides various circumstances in subsections (a) to (j) in which the injunction cannot be granted.

Further, the nature of an Injunction can be preventive, prohibitive, restrictive, or mandatory.

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In order to file an order of Injunction, you need to consider the amount of Suit Relief and the Court in which the suit has to be filed. An application for such an order needs to be attached keeping in view the type of injunction order which is being prayed for, when the suit proceeds, with the appropriate amount of court fee.

Also, note that the Hon'ble Supreme Court has observed that the Court has powers U/s.151 of Civil Procedure Code to issue an injunction in cases not falling within Order XXXIX Rule 1 and 2; however, that discretion should be exercised judiciously.

It is important to note that the information provided here is for knowledge purposes only. Consult an expert lawyer before initiating such law procedures.



 

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how to get a restraining order form court?

Gopal on Oct 25, 2022
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illegal construction on my property can I get injuction order?

Sanjay on Nov 02, 2022
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need a property lawyer please help

Pooja on Oct 20, 2022
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good article. In what cases can we get injuction?

Vijay on Oct 20, 2022
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what is the procedure to file for a permanent injuction?

Richa on Nov 17, 2022
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great advice. Thanks

Gourav on Oct 27, 2022
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solved my queries.

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Written plainly to be understood by anyone who is from a non-legal background.

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Written in a very simple language.

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