How to get a restraining order

In India, Restraining Orders, or 'Injunctions', are legal directives from the judiciary prohibiting specific actions (restrictive injunction) or commanding corrective measures (mandatory injunction). The process for temporary injunctions follows the Civil Procedure Code (CPC). In contrast, provisions for temporary and perpetual injunctions are outlined in the Specific Relief Act, as is discussed in this article.

There are two types of injunctions:

1. Temporary Injunction:

It is a provisional remedy invoked to preserve the subject matter in its existing condition that can be issued at any stage of a suit and is granted to prevent the dissolution of the plaintiff's rights when there is a need for immediate relief. Sections 94 (c) and (e) and Section 95 of the CPC provide that the Court may grant an injunction and may provide for reasonable compensation when such an injunction is proved to be unnecessary. Rule 3 of Order XXXIX of the CPC authorises the Court to grant an ex-parte interim injunction in exceptional circumstances.

2. Perpetual Injunction:

It restrains a party permanently from doing an act and can only be issued by a final decree made at the hearing and upon the suit's merits. Section 38(3) of the Specific Relief Act in clauses (a), (b), (c), and (d) provides an illustration of circumstances wherein the Court may grant a perpetual injunction. Section 41 of the Specific Relief Act, 1963, provides various circumstances where an injunction cannot be granted. Further, the nature of an Injunction can be preventive, prohibitive, restrictive, or mandatory. The relief sought appropriate jurisdiction of the Court is to be assessed before praying for an injunction. Such an application must specify the type of injunction prayed and is to be accompanied by the requisite court fee for the proceedings. Please note that the Hon'ble Supreme Court has observed that the Court has powers U/s.151 of CPC to issue an injunction in cases not 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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Types of Injunction

The following are different types of injunctions:

Preliminary Injunction:

Issued before the start of the case, sometimes referred to as an ad-interim injunction, are granted to keep the subject matter of the case intact, allowing the applicant to get instant relief.

Preventive or Prohibitory Injunctions:

Issued to prevent an individual or an organisation from committing an act, thereby preventing potential harm that would violate the applicant's rights or result in a loss for the applicant.

Mandatory Injunction:

Granted to rectify a situation after an illegal act has already happened, attempting to put things back in the proper order. For example, it may be granted to force the opposite party to return the property to its lawful owner.

Temporary Restraining Order:

Issued to maintain the state of affairs regarding the case's subject matter while the injunction application is resolved. Such an order is issued against the opposing party, and it remains in effect until the court grants the order of injunction.

Prohibitory Injunction:

Granted to forbid 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 contract violation.

Interlocutory or Interim Injunction:

Also known as interim injunctions, these are valid during the pendency of the decision of the Court. It prevents a party from acting a certain wai till the outcome of the case is finalised.

Quia Timet Injunction:

A legal concept rooted in English law, this is a proactive measure taken by the plaintiff on anticipating potential threats to their rights before any harm materializes. It prevents impending harm and can be permanent or temporary. In the case of Angela Drury v. Secretary of State for the Environment, Food, and Rural Affairs (2004), Lord Upjohn delineates two critical scenarios where this injunction applies: averting potential harm altogether and forestalling future litigation despite prior compensation. In India, the principle originates in Mars Incorporated vs Kumar Krishna Mukherjee & Ors. (" Mars Case" ) where the plaintiffs were permitted to seek injunctions in anticipation of potential harm to their rights, a principle subsequently upheld by various High Courts in India.

Mareva Injunction:

Often termed an interlocutory ad personam injunction or freezing order, it is frequently employed in cases involving asset misappropriation or fraud. In Nippon Yusen Kaisha v. Karageorgis and Mareva Compania Naviera S.A v. International Bulkcariers S.A, the relief of an asset preservation order was granted, restraining parties from transferring assets to ensure their availability for satisfying future judgments. Mareva injunction is not novel in India recognized under Order 38 Rule 5 of the Code of Civil Procedure, 1908 (" CPC" ), allowing attachment before a decision. The Mohit Bhargava v. Bharat Bhusan Bhargava case affirmed the authority of Indian courts to grant Mareva injunctions.

Anton Piller Order:

Mainly utilized in Intellectual Property cases, it allows access to premises for searching and seizing infringement materials, preventing vital evidence destruction. It's termed a pre-infringement injunction, John Doe order, or Ashok Kumar order in India, applied to safeguard IP rights in artistic works such as music and movies. Under Order 30 Rule 1 of the CPC, a plaintiff with a strong case involving potential infringement of trade secrets, copyrights, or trademarks may request such an order for anticipated violations. The Delhi High Court's first issuance of a "John Doe order," known as the "Ashok Kumar order," occurred in Taj Television Ltd. and others v. Rajan Mandal and others.

Dynamic Injunction:

Indian courts have awarded this injunction against rogue websites and URLs to buck the growing trend of digital piracy and provide legal solutions for intellectual property owners. Justice Pratibha Singh coined the term "dynamic injunction" in the case of UTV Software Communication Ltd. and Ors v. 1337x, where such an injunction was said to be dynamic, not static any mirror websites created will instantly fall under its purview, even if the initial injunction order only applies to one website.

Injunction on corporations:

Order 39 Rule 5 allows an injunction against a corporation that binds the corporation and each official and member whose individual behaviour the injunction is intended to prevent.

Lis Pendens:

This 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 real estate buyer must 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. A minor under the age of eighteen may apply through an adult who will serve as his agent. However, it does not bar the child from appearing before the judge the judge will need to take the child's perspective into account.

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Cost of a restraining order

Filing a petition for a restraining order is free of charge. However, legal expenses must be paid when a lawyer is hired.

Procedure of the court hearing

Step 1: The aggrieved person's lawyer presents reasons for the restraining order application. Step 2: The respondent defends against the order issuance. Step 3: Witnesses and evidence are presented, allowing cross-examination. Step 4: The judge decides on the restraining order based on the presented information.

When is a restraining order granted?

It may be granted when:

1. Risk of damage or loss of the property in question.

2. Improper execution of a decree through property sale.

3. Threats or plans by the defendant to deceive creditors by removing the property.

4. Defendant's threats to harm the plaintiff or unlawfully dispose of the property to prevent its loss or damage.

Circumstances where Injunction can be granted:

1. Maintaining 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 etc.

As the Supreme Court confirmed in the Manohar Lal v. Seth Hira Lal case, temporary injunctions under Section 151 of the CPC may be granted even in circumstances not explicitly covered by Order 39. Disobeying injunction orders under Order 39 Rule 2-A may lead to property seizure and up to three months' civil imprisonment, extendable to a year, as seen in Ram Prasad Singh v. Subodh Prasad Singh. Liability extends to anyone connected to the defendant. Rule 3 mandates notice before ex-parte injunctions, as cautioned in Morgan Stanley v. Kartick Das. The Supreme Court emphasizes the need for severe unfairness or irreparable loss to grant ex-parte injunctions, considering factors like consent and fundamental concepts such as balance of convenience and prima facie case. In the Union of India v. Era Educational Trust case (AIR 2000 SC 1573), on applying these guidelines, such orders were said to be subject to appeal under Order XLIII. 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 impossible in these cases because the revisional court's decision to decline jurisdiction is reasonable. Disobeying an injunction leads to contempt of court charges after a trial or hearing. The defaulter faces criminal charges, fines, and/or incarceration, depending on the type of violation.

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Cost of Injunction Order on Property in India

The court fee for an injunction complaint is typically Rs. 300, but additional claims may vary in fee depending on their value. If seeking a division of suit property, the property's value determines the fee. It's important to note that lawyer rates vary.

When is the court Injunction Order on property invoked?

An application for an injunction shall be granted if there is a possibility of irreversible harm that cannot be healed through any other means when the petitioner is subjected to it.

Governing Law

While several acts govern the law of injunctions, the primary laws are Section 151 and Section 94 of the CPC.

Requisites of an Application for Land Injunction Order

The application can be made based on a compelling prima facie case indicating potential success, where failure to obtain an injunction would lead to permanent consequences for the petitioner.

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Punishment for violating the restraining order

There are six months in jail or a fine for violating a court-issued restraining order. On subsequent violation of the same crime, one faces up to two years in prison as punishment.

Difference between Temporary Injunction and Lis pendens

The primary difference between a temporary injunction and the "Doctrine of Lis Pendens" is the consequence of their violation. A violation of an injunction may result in consequences such as property attachment or contempt proceedings. However, transactions that occur while the Lis Pendens is in effect are still legitimate and do not require any penalties or court orders. Injunctions discourage parties through the threat of penalties, whereas lis pendens permit property transfer without worrying about severe consequences.

How can a Lawyer Help get a restraining order?

Getting a restraining order from a lawyer is crucial for protecting people from danger, harassment, or threats. Lawyers begin by assessing the case's viability. They then write and file the required legal paperwork, providing the witness testimony and supporting documentation to bolster the restraining order case. Advocates are proficient in effective representation and cross-examination, which guarantees the strength of the case. Furthermore, they ensure compliance with the order by navigating individuals through legal intricacies. Due to their expertise, lawyers are vital in securing the protection required in such cases.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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