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How to get a restraining order

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November 28, 2023
By Advocate Chikirsha Mohanty



Restraining Orders commonly go by the term ‘Injunction’ in India. An injunction/ restraining order is 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.

 Consult:  Top Civil Lawyers in India

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.



Types of Injunction

There are different types of injunction, they have been explained below:



Preliminary Injunction

The applicant receives a preliminary injunction, sometimes referred to as an ad-interim injunction, prior to the start of the case trial. It is granted in order to keep the case's subject matter as it is and to keep the applicant's rights intact, giving him or her the opportunity to get instant relief.

 Consult:  Top Civil Lawyers in India



Preventive or Prohibitory Injunctions

An individual or organisation can be ordered to refrain from acting by granting a preventive injunction. It stops an injury from being threatened or an ongoing wrongdoing that would violate the applicant's rights or result in a loss for the applicant.



Mandatory Injunction

When an illegal act has already happened before the injunction is granted, it is necessary to rectify the situation. The obligatory injunction seeks to put things back in the proper order when they have gotten out of hand. As an illustration, it is given to force the opposite party to return the property to its lawful owner.



Temporary Restraining Order

A temporary restraining order is issued to maintain the current state of affairs regarding the case's subject matter while the injunction application is resolved. This injunction is given upon the applicant's filing of an application with the court seeking an injunction against the opposing party, and it remains in effect until the court grants the order of injunction. This injunction is in effect from the time the application for the injunction is submitted until the decision about the application is made.



Prohibitory Injunction

When a court grants a prohibitory injunction, it forbids the defendant from acting in a way that would violate the plaintiff's legal rights. Prohibitory injunctions, for instance, prevent the exposure of private information or limit a violation of the contract.



Interlocutory or Interim Injunction

Interlocutory injunctions are a form of interim injunction that is valid while the court action is pending. Thus, until the case's outcome is finalised, an interlocutory injunction may require or prohibit a party from acting in a certain way. The main objective of employing an interlocutory injunction is to maintain the current state of affairs.



Injunction Order on land

A writ of prohibition issued by an equity court in response to a party's complaint is known as an injunction. It is directed at the defendant in the case or the party added as a defendant for that purpose, and it forbids the latter from carrying out the act he is attempting or threatening to carry out, or from permitting his servants or agents to carry out the act. or prevent him from engaging in conduct, which is unfair and illegal, damages the plaintiff, and cannot be adequately addressed by a lawsuit.

For example, you can ask the relevant court to grant an injunction stopping the demolition of a structure for which you may have claims so that the building can't be demolished until the claim's trial is over.

The law of injunction was created by the Specific Relief Act, 1963 (hence referred to as the Act), and its application in India is governed by the Code of Civil Procedure, 1908.

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Quia Timet Injunction

The Quia Timet Injunction, originating from English law, is utilized when a plaintiff anticipates potential harm to their rights before any actual injury occurs. It can be permanent or temporary and aims to prevent impending violations or dangers. Court decisions like Angela Drury v. Secretary of State for the Environment, Food, and Rural Affairs (2004) emphasize the need for substantial evidence indicating a real likelihood of harm, while Lord Upjohn identifies two scenarios: prevention of potential harm and prevention of future lawsuits despite prior compensation.

In India, the principle's origin can be traced to Mars Incorporated vs Kumar Krishna Mukherjee & Ors. ("Mars Case") in the Delhi High Court. This significant ruling established the Quia Timet Action principle, allowing plaintiffs to seek injunctions in anticipation of potential harm to their rights, a principle subsequently upheld by various High Courts in India.



Mareva Injunction

Often referred to as an interlocutory ad personam injunction or freezing order, this legal remedy is commonly used in cases of asset misappropriation or fraud.For the first time, a relief of this kind was awarded in the seminal decisions of Nippon Yusen Kaisha v. Karageorgis and Mareva Compania Naviera S.A v. International Bulkcariers S.A. An asset preservation order is being implemented in this case, preventing a party from selling or otherwise transferring their assets and guaranteeing their availability to fulfil a future verdict.

The concept of a Mareva injunction is not new in Indian law; under Order 38 Rule 5 of the Code of Civil Procedure, 1908 ("CPC"), it is sometimes considered an attachment before the decision. The Mohit Bhargava v. Bharat Bhusan Bhargava case acknowledged that Indian courts possess the authority to grant a Mareva injunction.



Anton Piller Order

The Anton Piller Order, primarily used in Intellectual Property cases, grants access to premises for searching and seizing infringement materials to prevent the destruction or removal of crucial evidence. It's especially prevalent in safeguarding IP rights in artistic works like music and movies, referred to as a pre-infringement injunction or John Doe order. This order, also known as the Rolling Anton Pillar, Anton Piller, or Ashok Kumar order under Indian Law, allows protection of creators' IP rights by preventing potential infringements.

Under Order 30 Rule 1 of the Code of Civil Procedure, a plaintiff with a strong case of potential infringement, involving trade secrets, copyrights, or trademarks, may seek a John Doe order. Such orders are issued under Order 39 Rule 1 and 2, allowing courts to prevent anticipated violations. The Delhi High Court's issuance of the first "John Doe order," known as the "Ashok Kumar order," occurred in the case of Taj Television Ltd. and others v. Rajan Mandal and others. These orders aim to safeguard intellectual property by preventing potential violations and preserving evidence crucial to IP-related disputes.

 Consult:  Top Civil Lawyers in India



Dynamic Injunction

An increasing number of Indian courts have recently awarded "dynamic injunctions" against rogue websites and URLs in an effort to buck the growing trend of digital piracy. This innovative idea for an injunction helps combat digital piracy and provides effective legal recourse for owners of intellectual property. The term "dynamic injunction" was coined by Justice Pratibha Singh in the case of UTV Software Communication Ltd. and Ors v. 1337x. It is known as "an injunction order that is not static but dynamic," and as a result, any mirror websites created will instantly fall under its automatic purview, even if the initial injunction order only applies to one website.



Injunction on corporations

According to Order 39 Rule 5, an injunction against a corporation binds not only the corporation but also each and every one of its officials and members whose individual behaviour the injunction is intended to prevent.



Lis Pendens

A Lis Pendens is a formal notification to the public that a property claim litigation has been filed. The legal doctrine known as "lis pendens" states that the buyer of real estate is obligated to take on any pending litigation involving the asset.



What does a restraining order do?

A restraining order prevents the abuser from going near the victim's family, friends, or place of employment. Additionally, it instructs the abuser to refrain from contacting the victim by phone, text, letter, etc. 



Can anyone get a restraining order?

Yes, a restraining order can be obtained by anyone who has experienced harassment or abuse that is mental, emotional, or physical. However, a minor who is under the age of eighteen may apply through an adult who will serve as his agent. It does not, however, bar the child from appearing before the judge; the judge will still need to take the child's perspective into account.



Cost of restraining order

Filing a petition for a restraining order is free of charge. However, paying legal expenses is required if one hires a lawyer to file the petition.

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Procedure of the court hearing

  • Step 1: If the aggrieved person has hired a lawyer, the attorney speaks on behalf of the aggrieved person and states the reason for the application for a restraining order.

  • Step 2: Following that, the respondent explains why the court should not issue the order.

  • Step 3: The next step is to introduce witnesses and evidence. Each side has the opportunity to cross-examine. Additionally, the respondent summarises the reasons why the order should not be issued, and the petitioner summarises the reasons why the order should be issued.

  • Step 4: After considering all the information presented by the parties and their witnesses, the judge makes a judgment. If they are satisfied, they may issue a restraining order that same day or schedule a hearing for a later time.



When is a restraining order granted?

  • If any of the parties involved in the dispute could waste, damage, or alienate the property in question.

  • If a decree is executed by selling the property improperly.

  • If the defendant makes threats or plans to take the property away in order to deceive his creditors

  • If the defendant makes threats to take the plaintiff's property or harm the plaintiff in any other way in order to stop the property from being wasted, damaged, alienated, sold, removed, or otherwise disposed of, or in order to stop the plaintiff from being taken, etc.



Circumstances where Injunction can be granted

  1. To maintain status -quo.

  2. Against transfer of property.

  3. Disposal of goods.

  4. Making construction

  5. Effecting recovery of dues.

  6. Attachment of property.

  7. Appointing receiver or commission

  8. Against Prosecution etc.

 

Temporary injunctions under Section 151 of the CPC may be granted even in circumstances not specifically covered by Order 39 (in the above-mentioned list), as the Supreme Court confirmed in the Manohar Lal v. Seth Hira Lal case.

There are serious repercussions for disobeying injunction orders as described in Order 39 Rule 2-A. Property belonging to the guilty party may be seized, and they may spend up to three months in civil prison. A maximum of one year is attached, and if the disobedient party persists, the property may be sold, as per the decision in the Ram Prasad Singh v. Subodh Prasad Singh case. Moreover, the court made clear that even if they are not listed as parties to the lawsuit, anybody connected to the defendant—such as agents or servants—may still be held responsible for breaking injunction orders.

Rule 3 of Order 39 requires notice to be given to the opposing party prior to the issue of an ex-parte injunction. Nonetheless, ex-parte injunctions may only be granted by courts in rare and extraordinary situations. The Morgan Stanley v. Kartick Das case highlights the need for courts to exercise caution when utilising this authority, particularly in situations when the party in question has not received notice or a hearing.



The Supreme Court indicated the following factors which should weigh with a court in the grant of an ex-parte Injunction:

The Supreme Court listed important factors that the court needed to take into account while granting an ex-parte injunction. First, the plaintiff's claim for severe unfairness or irreparable loss is evaluated by the court. The time frame is also important because it prevents unjust orders against absent persons; notice of the act complained of is essential. In order to decide whether to grant an ex parte injunction, the court considers whether the plaintiff consented. The court also makes decisions based on fundamental concepts like irreparable loss, balance of convenience, and prima facie case.

The Union of India v. Era Educational Trust case (AIR 2000 SC 1573) found application for these guidelines. Particularly, orders are subject to appeal under Order XLIII, even ex-parte orders. Nevertheless, the second proviso clauses (i) and (ii) of section 115 do not apply to revision against denial of an ex parte injunction. Revision is not possible in these cases because the revisional court's decision to decline jurisdiction is reasonable in these circumstances.

 Consult:  Top Civil Lawyers in India



Cost of Injunction Order on Property in India

The court fee for bringing a complaint for an injunction will normally be Rs. 300 unless another claim is added; the court fee for another claim will vary depending on the value of the claim. If you also want the relief of the division of the suit property, the value of the suit will also depend on the value of your piece of the property for which partition is requested, and this valuation will also determine the amount of the court fee.

Lawyer rates differ from one to the next. While some lawyers charge thousands of dollars, others don't. It depends on the lawyer.



When is the court Injunction Order on property invoked?

An application for an injunction is not supported by the Indian legal system unless and until there is a possibility of irreversible harm. An irreparable injury is one that cannot be healed through any other means, as long as it is proven to have occurred to the petitioner.

Governing Law
A number of Relief Acts specifically control the law of injunctions, which is applied under the Civil Procedure Code. More specifically, this clause is governed by Section 151 and Section 94 of the Code.

Requisites of an Application for Land Injunction Order

  • The applicant may file the application for an injunction since the petitioner has a strong prima facie case that has the potential to succeed.

  • If the petitioner were to lose the balance of convenience or inconvenience and a temporary or permanent injunction were not obtained, they would suffer permanent consequences.



Punishment for violating the restraining order

The abuser may face up to six months in jail or a fine if he violates the court-issued restraining order. But if the abuser disobeys the order a second time after being found guilty of the same crime, he faces up to two years in prison as punishment.



Contempt of Court

If an injunction's terms are not followed by the relevant parties, the defendant faces contempt of court charges following the required trial or hearing. The defaulter would be forced to pay the specified criminal charge and/or risk incarceration in such a situation. The type of default would be taken into account while determining the appropriate punishment. 



Difference between Temporary Injunction and Lis pendens

The "Order of Temporary Injunction" and the "Doctrine of Lis Pendens" differ in what happens when they are violated. A transaction that violates an injunction is unlawful and unenforceable, and it may result in consequences such as property attachment or contempt proceedings. On the other hand, transactions that take place while the Lis Pendens is in effect are still legitimate and do not require any penalties or court orders. Parties under injunctions are discouraged by the threat of penalties, which stops repeated proceedings. Lis pendens, on the other hand, permits property transfer without worrying about severe consequences; it's like taking a chance, and it stays enforceable unless the lawsuit is lost. Unlike Lis Pendens, which lacks these deterrent effects, temporary injunctions discourage transactions and prevent complexity.

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How can a Lawyer Help to get a restraining order?

Getting a restraining order from a lawyer is crucial for protecting people from danger, harassment, or threats. They start by assessing the case's viability and offering advice on the justifications for requesting such an order. They then write and file the required legal paperwork, providing the testimony of witnesses and supporting documentation in court to bolster the restraining order case. Advocates are proficient in both effective representation and cross-examination, which guarantees the strength of the case. Additionally, they ensure that the terms of the order are followed by guiding people through the legal complexities and, if needed, providing assistance with appeals and amendments. Lawyers are essential in ensuring that the required protection is obtained in these kinds of cases because of their experience.

 



These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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