1.    Distinction between an incidental proceeding and a supplemental proceeding

Incidental or ancillary powers are provided for in the Code of Civil Procedure. They otherwise inhere in the jurisdiction of the court exercising plenary jurisdiction in certain situations but it must be stated that an appellate court can exercise the incidental or ancillary power only after the appeal has been entertained and not as a condition precedent for entertaining the same.

It must be borne in mind that incidental power is to be exercised in aid to the final proceedings. In other words an order passed in the incidental proceedings will have a direct bearing on the result of the suit. Such proceedings which are in aid of the final proceedings cannot, thus, be held to be at par with supplemental proceedings which may not have anything to do with the ultimate result of the suit.

Such a supplemental proceeding is initiated with a view to prevent the ends of justice from being defeated. Supplemental proceedings may not be taken recourse to in a routine manner but only when an exigency of situation arises therefore, the orders passed in the supplemental proceedings may some-time cause hardships to the other side and, thus, are required to be taken recourse to when it is necessary in the interest of justice and not otherwise. There are well-defined parameters laid down by the Court from time to time as regards the applicability of the supplemental proceedings.

Incidental proceedings are, however, taken recourse to in aid of the ultimate decision of the suit which would mean that any order passed in terms thereof, subject to the rules prescribed therefor, may have a bearing on the merit of the matter. Any order passed in aid of the suit is ancillary power. The expression ‘ancillary’ means aiding, auxiliary; subordinate; attendant upon; that which aids or promotes a proceeding regarded as the principal. The expression ‘incidental’ may mean differently in different contexts. While dealing with a procedural law, it may mean proceedings which are procedural in nature but when it is used in relation to an agreement or the delegated legislation, it may mean something more; but the distinction between an incidental proceeding and a supplemental proceeding is evident.[1]

2.    INJUNCTION

India observes the origin of Law of Injunction in English Jurisprudence of Equity; it is where we inherited the present administration of law. An injunction that is an authoritative warning or order is derived from French and Latin verb ‘injungere’ which means “To Join”.

The statutory meaning of Injunctions can be analyzed in various statutes such as under CrPC, CPC, and Specific Relief Act,1963 as follows:-

·      Under Code of Criminal Procedure under section 133,142 and 144.

·      Under Civil matters, the law relating to grant of Injunction is contained in Chapter VII of Part III of Specific Relief Act 1963 (sections 36-42).

·      Under Code of Civil Procedure 1908, Order 39 Rule 125 deals with Injunctions.

It has been termed as a preventive relief which is granted at the discretion of the court by Injunction which may be temporary or perpetual. Section 37(1) of Specific Relief Act, deals with specific Injunctions which are such as are to continue until a specified time or until further orders of the court, they may be granted at any stage of the suit or proceedings and are regulated by Civil Procedure Code.

A temporary or interim injunction restrains a party temporarily from doing the specified act and can be granted only until the disposal of the suit or until the further order of the court. It is regulated under the provisions of Order -XXXIX of CPC and may be granted at any stage of the suit. Permanent injunction restrains a party forever from doing the specified act and can be granted only on the merits at the conclusions of the trial after hearing both the parties to the suit. It is governed by Section-38 to Sec-42 of Specific Relief Act,1963.

Injunction are also: Preventive, prohibitive or restrictive i.e. when they prevent, prohibit, or restrain someone from doing something; or Mandatory i.e. when they compel, command or order person to do something.

2.1. Who may apply and against whom Injunction may be issued?

Both plaintiff and defendant may apply for Injunction against each other. An injunction may be issued only against a party and not against any stranger or a third party.

It also cannot be issued against a court or judicial officers.

2.2. Grounds of Temporary Injunction:

O39 R1 provides that Temporary Injunction may be granted by court:

1. Property in dispute is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of degree.
2. Where defendant: threatens or intends to remove or dispose of his property with a view to defraud creditors.
3. Where defendant: threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the property in dispute
4. Defendant is about to commit breach of peace or contract or otherwise (order 39 rule 2).
5. Where the court is of opinion that interest of justice, so required.

2.3. Conditions for granting Temporary Injunction:

Injunction is discretionary remedy and thus, before granting of the temporary injunction, the following conditions are required to be satisfied:

1. Prima Facie Case is in the favor of the plaintiff and against the defendant.
2. Irreparable injury is likely to be caused to the plaintiff, which cannot be compensated for in terms of money. Balance of convenience is in favor of the plaintiff and against the defendant.
3. There is a bona fide dispute raised by the applicant and there is a probability of the applicant being entitled to the relief claimed by him.
4. Thus, the burden is on the plaintiff praying for the relief. Mere proof of one of the above conditions does not entitle a person to an order of temporary Injunction.

Case- Dalpat Kumar vs Prahlad Singh and Ors.[2] the Apex Court, while considering the question of balance of convenience observed that the court while exercising discretion in granting or 2 AIR 1993 SC 276 7 | P a g e refusing injunction should exercise sound judicial discretion and should attempt to weigh substantial mischief or injury likely to be caused to the parties, and in the case of refusal of injunction should compare it with that which is likely to be caused to the opposite party, if the injunction is granted.

2.4. Circumstances where Injunction can be granted:

The list below is not exhaustive but some of them are as follows:

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.

Case: ManoharLal vs Seth HiraLal[3] it was held, even if case not covered on grounds of 0-39, Temporary Injunction can be granted in exercise of Inherent Powers Under Section 151 of CPC.

2.5. Consequences of disobedience or breach of an injunction:

O 39 Rule 2-A: If Rule 1 and Rule 2 of Order 39 are not complied then:

1. Property of guilty be attached.
2. Detention in civil prison not exceeding 3 months.
3. Limit of attachment.
4. Not more than 1 year.
5. If disobedience or breach continues the property may be sold.

Case: Ram Prasad Singh vs Subodh Prasad Singh,[4] it was held by the court that a person is liable to be proceeded against O39, R2-A, CPC even if he was not personally a party to the suit provided he is known to have been agent or servant of the defendant and to have violated the order of injunction in spite of knowledge that there was such an order.

Ex-parte Injunction:

Rule 3 of O-39 requires that the applicant to issue a notice to the opposite party before an injunction is granted. Though the court has the power to grant an ex-parte injunction without issuing a notice or granting a hearing to the party, who will be affected by such order, the said power is to be exercised sparingly and under exceptional circumstances.

Case: Morgan Stanley vs. Kartick Das[5] : the Supreme Court indicated the following factors which should weigh with a court in the grant of an ex-parte Injunction:

1. Whether irreparable or serious mischief will ensure to the plaintiff.
2. Whether the refusal of an ex-parte injunction would involve greater injustice than grant of it would involve.
3. The court will also consider the time at which the plaintiff first had notice of the act complained of so that the making of an improper order against a party in his absence is prevented.
4. The court will consider whether the plaintiff had acquiesced for some time and in such circumstances, it will not grant an ex parte injunction.
5. General principle like prima facie case, balance of convenience and irreparable loss would also be considered by the court.

The above stated guidelines were followed in Union of India vs. Era Educational Trust.[6]

An order issuing or refusing to issue an Injunction is subject to appeal in view of Order-XLIII. Thus, any order passed in exercise of the powers in Rule 1 (including ex- parte orders) would be appealable as indicated in order XLIII, Rule 1.

Revision against the order refusing to grant ex parte injunction, is not covered under by clause (i) and (ii) of second proviso of section-115. Refusal to exercise jurisdiction by the re-visional court is proper i.e. No revision is permissible in such a case.

2.6. Discharge and variation of order of injunction:

O-39 R4 lays down that any order for an injunction may be discharged or varied or set aside by the court on an application made thereto by any party dissatisfied with such order.

It is further provided that if an application for temporary Injunction, or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a particular matter and the injunction was granted without giving notice to the opposite party, the court must vacate the injunction unless for the reasons to be recorded, it considers that it is not necessary so to do in the interests of justice. Moreover, if an order for an injunction has been passed after giving to a party an opportunity of being heard, the order is not to be discharged, varied or set aside on the application of that party, except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the court is satisfied that the order has caused undue hardship to that party.

2.7. Injunction on corporations:

0-39 R5 says that An Injunction directed to a corporation is binding not only on the corporation itself, but also on all the members and officers of the corporation whose personal action it seeks to restrain.

Lis Pendens: A Lis Pendens is an official notice to the public that a lawsuit involving a claim on a property has been filed. Lis pendens refers to the concept that a buyer of a property must assume any litigation that exists pertaining to the property.[7]

2.8. Difference between Temporary Injunction and Lis Pendens:

Inherent powers of the court to grant injunction:

Where the cases are not covered by Order 39, Interim injunctions can be granted by the court in exercise of inherent powers under section 151 of CPC. In Hassan Yusuf Khan vs. Syed Ashia Ali[8], the court held that Order 39 Rule 1 and sec-151 do not entitle the court to issue injunctions against the lawful owner. The grant of an id interim injunction is an extraordinary thing. It is not permissible to grant it unless the plaintiff is undoubtedly entitled to a decree and the defendant is undoubtedly liable or likely to take away the fruits of the decree. Therefore, inherent power under section 151 cannot be used as a regular affair when the remedy is available in a specific provision.

3.    CONCLUSION

Supplemental proceeding is initiated with a view to prevent the ends of justice from being defeated. The supplemental proceedings may not be taken recourse to as a routine matter but only when an exigency arises therefor. The orders passed in the supplemental proceedings may sometime cause hardships to the other side and, thus, are required to be taken recourse to when a situation arises therefor and not otherwise. There are well-defined parameters laid down by the Court from time to time as regards the applicability of the supplemental proceedings.[9]

Supplementary proceedings, thus, envisage that such a power must be specially conferred upon the Court which are required to be passed in the interest of justice irrespective of the fact as to whether the same would ultimately have any bearing with the reliefs claimed in the suit or not. In absence of any statutory provisions such a power cannot be exercised whereas a power which is ancillary or incidental, can always be exercised by the Court in aid of and supplemental to the final order that may be passed. Furthermore, a jurisdiction expressly conferred by a statute and an inherent power, subject to just exceptions, must be treated differently.

[1] G.L. Vijain v. K. Shankar, AIR 2007 SC 1103

[2] Dalpat Kumar vs Prahlad Singh and Ors., AIR 1993 SC 276.

[3] ManoharLal vs Seth HiraLal, AIR 1962 SC 527.

[4] Ram Prasad Singh vs Subodh Prasad Singh, 4 AIR 1983 Pat. 278.

[5] Morgan Stanley vs. Kartick Das, AIR 1994, 4 SCC 225 (241-242).

[6] Union of India vs. Era Educational Trust, AIR 2000 SC 1573(3).

[7] Yusuf Khan vs. Syed Ashia Ali, 1979 ALL. L.J. 54.

[8] Vareed Jacob vs Sosamma Geevarghese & Ors., (2004) 6 SCC 378.