Injunction

Whether the court has the power to grant injunctions against persons who are unknown and unidentified at the date of the grant of the injunction, and who have not yet performed, or even threatened to perform, the acts which the injunction prohibits

Held, that court has power to grant newcomer injunctions

However, it should only exercise this power in circumstances where there is a compelling need to protect civil rights or to enforce public law that is not adequately met by any other available remedies

Furthermore, newcomer injunctions should only be made subject to procedural safeguards designed to protect newcomers' rights

Detailed principles and pre-requisites related to grant of a newcomer injunction stated.

Appellate Court passed injunctive order restraining the petitioner (co-sharer) from raising construction on joint land pending suit

Respondent contended that the Petitioner without legal entitlement and character, dumped construction material on joint land

Held, that each co-sharer was owner in every part of the joint property

Any co-sharer could not be permitted to change the character of the land, to the extent of his entitlement

Mutation of the respective Mauza, in the present case, was complete; the share of each share-holder was mutated in their names, however, the same was unpartitioned between the joint owners (co-sharer)

Petitioner had not disputed the ownership of the respondent(plaintiff) to the extent of his share

Alienation of the suit-property, under the circumstances, could change the nature of suit, therefore, any co-sharer could not be allowed to act in a manner which constituted an invasion on the right of other co-sharer

Petitioner failed to point out any illegality or irregularity in the impugned order passed by the Appellate Court and no interference was called for

Revision was dismissed, in circumstances.

Upon the prosecution's request, a mandatory ban prohibiting the publication, broadcast or transmission in any way of any information that could identify the victim was ordered [pursuant to S. 486.4(2.2) of the Canada Criminal Code]

Prior to the issuance of the publication ban, a media outlet posted information revealing the identity of the victim on its website

After media outlet refused to remove such information, the prosecution sought an order citing the media outlet in criminal contempt of the publication ban and an interlocutory injunction directing the removal of the victim's identifying information

Trial judge concluded that the prosecution had not established the requirements for a mandatory interlocutory injunction, and dismissed its application

Court of Appeal allowed the appeal and granted the mandatory interlocutory injunction

Validity

To obtain a mandatory interlocutory injunction, the appropriate criterion for assessing the strength of the applicant's case at the first stage [of the RJR-MacDonald test] was not whether there was a serious issue to be tried, but rather whether the applicant had demonstrated a strong prima facie case

Potentially severe consequences for a defendant which could result from a mandatory interlocutory injunction further demanded an extensive review of the merits at the interlocutory stage

Test for obtaining mandatory interlocutory injunction entailed showing a strong likelihood on the law and the evidence presented that, at trial, the applicant would be ultimately successful in proving the allegations set out in the originating notice

Applicant must also demonstrate that irreparable harm would result if the relief was not granted and that the balance of convenience favoured granting the injunction

Decision to grant or refuse an interlocutory injunction was a discretionary exercise, with which an appellate court must not interfere solely because it would have exercised the discretion differently

Appellate intervention was justified only where the Trial judge proceeded on a misunderstanding of the law or of the evidence before him; where an inference could be demonstrated to be wrong by further evidence that had since become available; where there had been a change of circumstances, or where the decision to grant or refuse the injunction was so aberrant that it must be set aside on the ground that no reasonable judge could have reached it

Perusal of the originating notice in the present case showed that the prosecution brought an application for criminal contempt and sought an interim injunction in that proceeding

Prosecution thus proceeded on the basis that its application for an interlocutory injunction was sought in respect of the citation for criminal contempt

Two applications were linked, such that the latter was tied not to the mere placement by the media outlet of the victim's identifying information on its website, but to the sought-after criminal contempt citation

Each prayer for relief did not launch an independent proceeding; rather, both related to the alleged criminal contempt

Originating application must state both the claim and the basis for it and the remedy sought, but in the present case the prosecution's originating notice disclosed only a single basis for seeking a remedy i.e. media outlet's alleged criminal contempt of court

Prosecution was, therefore, bound to show a strong prima facie case of criminal contempt of court

Prosecution's burden was not to show a case for criminal contempt that leant one way or another, but rather a case, based on the law and evidence presented, that had a strong likelihood that it would be successful in proving media outlet's guilt of criminal contempt of court

Such burden was not an easy burden to discharge and the prosecution had failed to do so in the present case

Trial judge applied the correct legal test in deciding the prosecution's application and his decision that the prosecution case failed to satisfy that test did not, in the circumstances, warrant appellate intervention

Appeal was allowed accordingly.

Court dealing with civil suit was barred from staying proceedings in any criminal matter.

Balance between claimant's right to private and family life and right of media to freedom of expression and public interest in open justice

Several accused persons were arrested on suspicion of serious offences of child abuse

Claimant , who was one of the accused, was arrested simply because one of the victims had told the police that she had been abused by a man with the same, very common, first name as the claimant

Claimant was subsequently released on bail

Other accused persons were charged and their trial was conducted throughout in open court, whereas, the claimant, who was neither a witness nor a party, was protected by the trial judge's order (under the Contempt of Court Act 1981) prohibiting any disclosure which might identify him as the subject of pending criminal proceedings until he was charged

Trial attracted considerable media attention and two newspapers, wishing to publish information identifying the claimant as a person suspected of involvement in the subject matter of the police investigation who had been arrested, bailed and then released from arrest, unsuccessfully sought the discharge of the non-disclosure order

Majority of those tried were convicted, while, the claimant, who could not be identified by the victim during an identification parade, was released from arrest without charge

Although claimant's case was kept under review there was no reason to believe that he would ever be charged with an offence

Newspapers again applied to the trial judge to lift the non-disclosure order on the ground that there were no longer pending or imminent proceedings against the claimant which could be prejudiced by publication

Claimant immediately applied to the High Court for an interim injunction restraining publication, on the basis that it was necessary to protect him against the misuse of private information and the infringement of his right to private and family life [protected by Art. 8 of the European Convention on Human Rights (ECHR)]

Resisting the application the newspapers indicated that they wished to focus on the position of persons not party to proceedings against whom allegations had been made in the proceedings, the extent of the protection given to those facing pending criminal proceedings and the challenges of reporting criminal proceedings where such issues arose

High Court, having balanced the claimant's rights (under Art. 8 of ECHR) against the interests of freedom of expression and open justice, rejected the claimant's application for an injunction

Court of Appeal affirmed the High Court's decision

Legality

[Per Lord Sumption] English courts, with limited exceptions, administered justice in public at hearings which might be attended by members of the public and reported by the press

Press reporting of legal proceedings was an inseparable extension of open justice whereby the press served as the eyes and ears of the public who were entitled to attend

Principle of open justice was not absolute and permissible press reporting of public legal proceedings was limited by the law of contempt, the law of defamation and the law protecting the European Convention on Human Rights (ECHR)

Right to respect for private and family life (under ECHR) was given effective recognition in a qualified common law right to privacy where the person concerned had a reasonable expectation of privacy

Such a right had to be balanced against the right to freedom of expression (protected by Art. 10 of ECHR)

Exercise of such a balance was fact-specific, neither right being in principle stronger than the other

In deciding which right should prevail, regard was to be had to their comparative importance in the particular circumstances and to an assessment of the proportionality of the respective interference which the grant or refusal of the injunction would represent

In the present case the High Court in evaluating the strength of the rival considerations in respect of the claimant's right to respect for private and family life (Art. 8 of ECHR) and the newspapers' interests under the right to freedom of expression (Art. 10 of ECHR) had correctly not applied a presumption that members of the public equated suspicion with guilt to consideration of the effect of the claimant's arrest without charge

Claimant could not have had any expectation of privacy in respect of the matters discussed at a trial held in open court

Impact on the claimant's family life was indirect and incidental; neither the claimant nor any of his family had participated at the trial and nothing had been said there which related to his family

Sexual abuse of children was a matter of great public concern and the processes of investigation and prosecution were matters of legitimate public interest

Claimant's identity was not a peripheral or irrelevant feature of the story, therefore, the public interest extended to publication of his name, and accordingly, the pre-emptive injunction sought by the claimant was inappropriate and the High Court and the Court of Appeal had rightly refused his application

[Per Lord Kerr and Lord Wilson (Minority view); High Court had erred in balancing the strength of the rival considerations in respect of the claimant's right to respect for private and family life and the newspapers' interests under the right to freedom of expression

Majority view in the present case had incorrectly stated a legal presumption that courts should act on the basis that most people believed that someone charged with an offence, and still more someone not charged with an offence but simply arrested on suspicion of it, was innocent until proved guilty

No evidence or authority was offered to support such a presumption

Perusal of decisions from other jurisdictions showed that the privacy rights of those suspected or accused, but not convicted, of grave crimes were not undermined by any such presumption

Under Art. 8 of ECHR (respect for private and family life), it was likely that the claimant would have established his right to an injunction at full trial]

Appeal was dismissed accordingly.

Balance of convenience meant that if an injunction was not granted and suit was ultimately decreed then inconvenience caused to the plaintiff would be greater than that which would be caused to the defendant if an injunction was granted but the suit was ultimately dismissed.

Irreparable loss meant "such loss which was incapable of being calculated on the yardstick of money".

Status quo was that same status with regard to title or possession of immovable property as existed on date of filing of suit was to be maintained.

Injunction was a preventive remedy for the purpose of preserving the status quo of the matter of suit pending for determination.

Any injunction must be framed in terms sufficiently specific to leave no uncertainty about what the affected person was or was not allowed to do.

Ingredients of injunction were prima facie case; balance of convenience and irreparable loss.

Court does not grant an injunction in a case where there was an adequate legal remedy; in particular, it does not do so where damages would be an adequate remedy

Where an injunction was granted, it was usually because the injury to the claimant was "irreparable", in the sense that money could not atone for it.

Principles set out for decision for application for grant of injunction are to the effect that the plaintiff must establish its business consisting of a class of goods; that the goods so sold have created a goodwill in the mind of wary person and that the goodwill owned by the plaintiff on account of the use of similar trademark by the defendant has caused a substantial damage to the plaintiff's business and goodwill.

Mere pendency of proceedings, would not operate as an injunctive order.

Superior Courts, viz. High Court and Supreme Court, in exercise of their inherent jurisdiction, were empowered to see to it that no party was wronged- and even if an ad interim injunction order was not extended or was varied or vacated, affected party could be brought back to its original position and the "aggressor" or "wrong-doer" could be prevented from taking advantage of his own wrong

Superior Courts in exercise of their extraordinary jurisdiction, could always make such an order for safeguarding ultimate ends of justice

Ad interim injunction order in normal circumstances, order granted for a limited period, would stand vacated by afflux of time, unless it had been extended or made to last till end of litigation before a particular Court.

Equitable remedy by way of injunction whether mandatory or interlocutory in nature, was discretionary and was never granted as a matter of course

Party applying for that remedy, was required to make out prima facie case, balance of convenience and irreparableness of loss

Loss which was measurable in terms of money, could not be called irreparable loss

Removal of any employee was always compensated with reinstatement and back benefits if action of employer was found perverse or illegal

As against that employer would suffer irreparable loss if delinquent employee was given a bonus and allowed to remain in service.

Mere use of words I, therefore, direct the defendants not to eject the plaintiff from the suit premises in their personal capacity except in due course of law' would not make it an order of injunction by the Court.

Art. 185 (3)-Civil Procedure Code (V of 1908), O. XXXIX, r. 1Injunction-Trial Court rejecting application for grant of injunction sought against person not party to suit-Injunction granted by appellate Court against same party and upheld by High Court in revision Held, against relevant provision of r. 1 (a) of O. XXXIX-Impugned orders set aside and order of trial Court restored.

Art. 185 (3) read with Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2-Injunction-Application for temporary injunction rejected by trial Court but allowed by appellate Court High Court, in revision, finding that order against which injunction sought had already been implemented-Order of High Court quashing order of appellate Court-Held, cannot be taken exception to [Injunction].

O. XXXIX. rr. 1 & 2-Injunction-Interlocutory injunction, grant of-Within discretion of trial Court- Interlocutory injunction issued by trial Court and upheld by appellate Court-Interference by High Court possible only when appellate Court or trial Court acted illegally or with material irregularity in exercise of their jurisdiction.-[Injunction].

O. XXXIX, r, 2-Injunction-Stay order conditional and granted on terms-Held, can be withdrawn on account of non-fulfilment of terms of grant.-[Injunction].

O. XXXIX, r. 1-Injunction, ad interim - Material on record showing a bungalow having already been constructed on disputed premises and predecessor-in-interest of respondents having purchased property in question-On-going construction also nearing completion-Balance of convenience, held, lay in favour of opposite party and ad interim injunction stopping construction likely to cause irreparable harm to respondents-Findings of Courts below not found in any manner arbitrary or capricious - Injunction ad interim, declined, in circumstances -[Injunction].

Petitioner a Housing Society allegedly purchasing land, carving out, residential plots according to a development scheme, many members of Society constructing houses on their plots and multistoryed building also constructed by Society itself-Contesting respondent not in, possession of land in dispute-Balance of convenience, held, did not in circumstances, lie in favour of issuance of order restraining petitioner from raising any construction at site pending disposal of main appeal and petitioner liable to suffer irreparable loss and injury by virtue of such order-Impugned order of High Court also not a speaking order Case sent back to High Court for decision afresh.

Granted rarely and only to restore status quo and not to create a new irretrievable situation.

Injunction -Ad interim injunction restraining University Syndicate from taking any step affecting "status" of plaintiff till disposal of suit-Purpose of order being preservation of status quo ante litem, word "status" in order connotes not merely position of parties inter se but also involves salary assigned to one as compared to other and bears, inter alia, clear reference to award of higher salary-Syndicate passing resolution, after service of injunction order, confirming appointment of plaintiff's candidate in opposition and directing appointment to be made permanent when permanent vacancy occurs-Statutory duty exercised by such disregard of prohibitory order, held, no exercise of legal power but an abuse of alleged power.

Injunction-Interim injunction restraining Directors of Company from convening meeting of Company, held in circumstance, not appropriate and expeditious remedy-Proper remedy to have recourse under Companies Act, 1913.

Injunction Injunction-.Equitable relief-Seldom granted when to opinion of Court plaintiff able to remedy his own grievance.

O. XXXIX, r. 4-Injunction-Discharged on misapprehension of fact and law and upon irrelevant considerations-Injunction restored-Civil Procedure Code (V of 1908), S. 115.

O. XXXIX-Injunction-Person seeking, must establish prima facie case in his favour as well as balance of convenience-Order of injunction passed in absence of party and without stating reasons-Not valid-Civil Procedure Code (V of 1908), O. XX, rr. 4 & 5.

Injunction-Must be obeyed implicitly and faithfully even if it be illegal unless vacated by competent Court-Contempt of Courts Act (XII of 1926), S. 2.

Injunction Status quo in respect of property means status quo about possession-Status quo also means that tenants should remain in possession.

O. XXXIX, r. 1 read with O. XLIII, r. 1 (r) and S. 2 (14)-Injunction-Ex parte order "Order" within meaning of definition in S. 2(14) and hence appeal able under O. XLIII, r. 1.

Injunction-Suit for declaration of title simpliciter-Subsequently plaintiff applying for injunction to restrain defendant from interfering with his alleged possession of suit land-Held, not maintainable.

Discretionary relief-Not to be granted where interests of public health demand orther-wise-Civil Procedure Code (V of 1908), O. XXXIX.

Injunction Injunction-Prohibitory order to Bank not to pay amount in account to account-holder-Followed by another prohibitory order "amplifying" earlier order-Amplification, held, does not supersede earlier order, and does not take away anything from its "prohibitory force"-Civil Procedure Code (V of 1905), O. XXXIX, r. I.

O. XXXIX, r. 3 [as substituted by Civil Procedure and Limitation (Amendment) Ordinance (IX of 1961), S. 2(b)]-Injunction-Order of ad-interim injunction passed by the lower Court before directing service of notice on opposite-party-Without jurisdiction and bad in law-Subsequent order making such order absolute cannot cure defect of jurisdiction.

Injunction -Ground for issue-"Keen struggle" between individual groups in Corporation (Chamber of Commerce)Irrelevant for deciding question of issue of temporary injunction

Civil Procedure Code (V of 1908), O. XXXIX r. 1.

Injunction -Perpetual, temporary or interlocutory-Relief by speck performance or by injunction-Distinction-Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2-Speck Relief Act (1 of 1877) Ss. 54 & 55.

Injunction -A trespasser cannot avail of relief of injunction as against a person having some legal title.

Temporary-Discretion of Court Examination of merits-Principles governing grant or refusal.

When may be issued, explained -S. 54 Specific Relief Act. Ordinarily acts which are restrained by injunction are those which appear to the Court issuing the injunction to be prima facie illegal or with respect to the legality of which there is a reasonable doubt. So far as permanent injunctions are concerned, it will appear from section 54 of the Specific Relief Act that they are issued only to prevent the breach of an obligation existing in favour of the plaintiff. If an act be perfectly legal, it cannot be said that there exists an obligation in favour of the plaintiff that it shall not be done.

Injunction Injunction-Mandatory-Conditions for issue of. The granting of mandatory injunction is a matter of discretion but the Court before granting such injunction must with great caution weigh all facts and circumstances with the balance of convenience, and inconvenience, the possibility of the injury being adequately compensated by damages, the conduct of the parties and the nature and extent of the right infringed. As a general rule, and in the absence of special circumstances, if the injured man comes into Court on the first opportunity after he has seen that they will interfere with his rights, the injunction is to be granted. On the other hand when a plaintiff has not brought his suit or applied for injunction at the earliest opportunity but waited till the building has been finished, and then asks the Court to have it removed, a mandatory injunction will not generally be granted though there might be cases where it would be.

Injunction-Propriety of issue of-Defendant to satisfy Court if special circumstances exist for wrong to be adequately compensated by damages-Mere fact that plaintiff had formerly accepted a money payment, held, not enough to prove existence of such circumstances.