Interim injunction is an equitable remedy and is not available as of right, such injunction will be granted at the discretion of the court. The effect and the purpose of such injunction is to preserve the status quo of the subject matter of the action until the final judgment is delivered. The Civil Procedure Code has dedicated its Chapter XLVIII for the procedure relating to applications for injunctions. Section 662 is the first section in that Chapter which is as follows.
662. Every application for an injunction for any of the purposes mentioned in section 54 of the Judicature Act, except in cases where an injunction is prayed for in a plaint in any action, shall be by petition, and shall be accompanied by an affidavit of the applicant or some other person having knowledge of the facts, containing a statement of the facts on which the application is based.
Section 662 is followed by few other sections in that Chapter and they form the procedure to be followed when an application for an injunction (for any of the purposes mentioned in section 54 of the Judicature Act), is made. As has been clearly stated in section 662, the ‘purposes’ for which such injunction may be obtained are set out in section 54 of the Judicature Act. The corollary of the above is that a Court can only grant such an injunction for the purposes set out in section 54 of the Judicature Act. This means that it is this section which vests Courts with jurisdiction to grant such injunctions. .....
Thus, section 54 of the Judicature Act states the substantive law relating to injunctions in the following manner. .......
The above section shows that a court may grant an injunction for one or more of the purposes
set out in section 54 (1) under three limbs namely (a), (b), (c). While the aforesaid three limbs
[(a), (b), (c)] set out the purposes for which injunctions may be granted, limbs (i), (ii) and (iii)
appearing at the end of section 54 (1), set out what a Court can restrain by the issuance of an
injunction. It is not accidentally that the same wordings found in the aforesaid three limbs [(a), (b), (c)] have been incorporated in verbatim, in limbs (i), (ii) and (iii) appearing at the end of that section. This is why Justice Soza stated the following, in Felix Dias Bandaranayake case,
“It is necessary first of all to have a clear picture of the legal principles that are applicable to the question before us. The jurisdictional provisions have already been noted. This is an action instituted in the District Court and the application for an interim injunction was
made at the time the plaint was filed. So section 54(1) (a) and (i) of the Judicature Act
No. 2 of 1978 and sections 662 and 664 of the Civil Procedure Code apply. If it appears
from the plaint that the plaintiff demands and is entitled to a judgment against the
defendants, restraining the commission of an act or nuisance, which would produce injury
to him the Court may, on its appearing by the affidavit of the plaintiff or any other person
(and that would include the defendants as I have already pointed out) that sufficient
grounds exist therefor, grant an interim injunction restraining the defendants from
committing any such act or nuisance. The plaintiff must therefore have a clear legal right
which is being infringed or about to be infringed. ...”
The law, namely section 662 of the Civil Procedure Code as well as section 54 of the Judicature Act, make a clear distinction between an instance where an injunction has been prayed for in the plaint itself, and an instance where an injunction is sought in a petition filed subsequent to filing of the plaint. This is evident from the phrase “Every application for an injunction for any of the purposes mentioned in section 54 of the Judicature Act, except in cases where an injunction is prayed for in a plaint in any action, shall be by petition...” in section 662 of the Civil Procedure Code and the following phrase in section 54 of the Judicature Act;
(1) Where in any action instituted in a High Court, District Court or a Small Claims Court, it
appears-
(a) from the plaint that the plaintiff demands and is entitled to a judgment against
the defendant,.... (Emphasis is mine)
Thus, section 54(1)(a) applies to an instance where an injunction has been prayed for in the
plaint itself. What an injunction issued in such a situation can restrain, is what has been stated in (i) appearing at the end of that section.....
The wording in limb 54(1)(c) namely “threatens or is about to” clearly indicates that section 54
(1)(c) caters to actions which the defendant intends taking in future. Further, section 54(1)(c)
refers to a situation where the defendant ’threatens or is about to remove or dispose of his
property with intent to defraud the plaintiff’. While the Plaintiffs in the instant case have not
complained of anything of that sort happening, the requirement “ with intent to defraud the
plaintiff “ is also absent in this case. The Plaintiffs have sought an injunction to restrain the
Defendant from using the disputed roadway and that would not be an instance falling under
section 54(1)(c) of the Judicature Act. Therefore, that limb has no application to the instant case. Thus, what needs to be considered is whether the Plaintiffs in the instant case have sought an injunction for a purpose which falls under section 54(1)(b) of the Judicature Act.
In relation to the above, the relevant catch phrase in section 54(1)(b) would be
‘an act or nuisance in violation of the Plaintiff’s rights in respect of the subject matter of the action and tending to render the judgment ineffectual’. As per this section, a plaintiff must satisfy two requirements; firstly, an occurrence of ‘an act or nuisance in violation of the Plaintiff’s rights in respect of the subject matter of the action’; and secondly the occurrence of the said act or nuisance would ‘tend to render the judgment ineffectual’.
Although section 54 of the Judicature Act has given a wide discretion to courts to issue injunctions whenever it is just to do so, over the years our courts have developed three primary grounds or parameters or guidelines to guide themselves when deciding the question whether it should proceed to grant an interim injunction against a defendant. Those grounds could be summarized in to a brief form to read as follows.
1) Has the applicant made out a strong prima facie case?
2) Whether the balance of convenience is in his favour?
3) Do equitable considerations favour the grant of an injunction?
K. Madhuri Anuradha Rodrigo v. K. M. Hema Celsia Fernando & another
SC Appeal 53/2021
Decided on: 16 - 11 -2021
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