All about tem­po­rary in­junc­tions

HT Estates - - HTESTATES -

The con­duct of the par­ties in a case is equally i mpor­tant. 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 t he de­fen­dants f rom 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.

THINKSTOCK

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