Suit is for permanent injunction. Can temporary injunction be granted as interim measure?

The Foundational Principle: Protecting the Subject Matter of the Suit

Order XXXIX, Rule 1 empowers the court to grant a temporary injunction where it is proved that any property in dispute is in danger of being wasted, damaged or alienated, or where the defendant threatens to dispossess the plaintiff or cause injury to him in relation to any property in dispute. The language of the rule is deliberately wide — it speaks of "any suit" and "any property in dispute." A suit for permanent injunction directly places a right or property in dispute, and the threat that prompts the final relief claimed is the very same threat against which the interim relief is directed. There is, therefore, a complete structural alignment between the final relief sought and the nature of the interim remedy available.

Courts have also confirmed this in practice. It has been held that in a suit for declaration of title simpliciter, the court has power under the rules of Order XXXIX or even under Section 151 of the Code to grant an interim injunction pending the suit. If this is true for a declaratory suit — where injunction is only a consequential relief — it holds with even greater force for a suit where permanent injunction is the primary and direct relief claimed.

The Classic Three Requirements Apply

The fact that the suit seeks permanent injunction does not relax or alter the conditions that must be satisfied for the grant of a temporary injunction. The plaintiff must still satisfy the court on the three well-established pillars:

• Prima facie case: There must be a substantial question to be investigated — a bona fide dispute that deserves trial. This is not to be confused with prima facie title, which is a matter for proof at full trial. A prima facie case is that which, at first sight, appears to give the plaintiff a reasonable possibility of establishing his right at trial.

• Balance of convenience: The court must weigh the mischief likely to be caused to the plaintiff if the injunction is refused against the inconvenience to the defendant if it is granted. If the balance of convenience is in the plaintiff's favour, the court is more disposed to grant the relief.

• Irreparable injury: The plaintiff must show that the injury he would suffer in the absence of the interim order cannot be adequately compensated in money. Where the damage is readily calculable and compensable in terms of damages, the case for an interim injunction is weakened.

All three conditions must co-exist. The absence of any one of them, as the law is settled, is sufficient reason to decline the relief.

A Crucial Limitation: No Injunction Where Possession Is With the Defendant

There is one important limitation that assumes special relevance in suits for permanent injunction. Where the defendant is actually in possession of the suit property, the court has declined to grant a temporary injunction in favour of the plaintiff restraining the defendant from interfering with possession — since possession has already passed out of the plaintiff's hands and the interim order would, in effect, restore what has been lost, which is more in the nature of a mandatory injunction rather than a merely prohibitory one. The courts have repeatedly held that a temporary injunction restraining a defendant already in possession would not be appropriate, and that the plaintiff in such a situation must either prove a very strong prima facie case or seek a mandatory interim injunction — which demands an even higher standard of proof. The Supreme Court had occasion to clarify in Dorab Cawasji Warden v. Coomi Sorab Warden (AIR 1990 SC 867) that grant of mandatory interim relief requires the highest degree of satisfaction of the court — much higher than a case involving grant of prohibitory injunction.

The Interim Order as an Aid to the Final Decree

What gives the temporary injunction in a permanent injunction suit its distinctive character is the relationship between the interim and final relief. It is settled law that the interim order is in aid of the final order, and vice versa. If the court ultimately grants a decree of permanent injunction, the temporary injunction that subsisted during the suit would have prevented the very mischief against which the decree provides final protection. The two orders form a continuum — the temporary injunction freezes the situation while the court investigates the right, and the permanent injunction crystalises the protection once the right is established. Courts must, however, be cautious not to effectively pre-decide the suit by granting interim relief in terms so wide that it becomes indistinguishable from the final decree — for that would be to grant through the back door what can only be granted after full trial.

Inherent Power as a Residuary Source

Even in cases that may not strictly fall within the enumerated grounds of Order XXXIX, Rule 1, the court retains inherent power under Section 151 of the Code to grant a temporary injunction where the ends of justice demand it. The Supreme Court has held that subordinate courts have this inherent jurisdiction in circumstances not covered by Order XXXIX, though such power is to be exercised only in exceptional situations. In a suit for permanent injunction, therefore, the plaintiff has both the statutory route under Order XXXIX and the equitable residuary route under Section 151 available to him — ensuring that the court's protective jurisdiction is never entirely foreclosed when justice requires it to act.