Report No. 54
Question in the Questionnaire as to temporary injunctions
39.11. Having regard to the importance of the subject of temporary injunctions, we had in our Questionnaire1 on the Code, included the following question':-
"24. (a) Would you favour any limitations on the Court's power to issue temporary injunctions? In particular, do you favour an amendment to the effect that an ex parte ad interim injunction should not be granted save in exceptional cases, and for reason to be recorded in that behalf?
(b) Would you favour the suggestion that in case an ex parte injunction is granted, it shall be discharged by the court if it is satisfied that the party which obtained the injunction is not taking diligent action to serve the opposite party or to take other steps necessary for the progress of the suit?".
The majority of replies agree with the approach shown in the question.
1. Question 24.
39.12. After taking into account all aspects of the matter, we have come to the conclusion that an amendment of the law is called for.
39.13. No doubt, such a power of issuing ex parte injunctions is needed for urgent cases. But practical experience suggests that there ought to be some restriction as to the duration for which the ex parte injunction should continue.
In the absence of such a restriction, the party obtaining an injunction loses interest in prosecuting the suit with diligence, and the party bound by the injunction suffers. While we realise that too severe or too many restrictions on the powers of the court may work hardship, we are of the view that some broad limitations would be useful and workable. What, we think, could be recommended is that-
(a) interim ex parte injunctions should not be granted for a duration exceeding, say, one month;
(b) hearing of the application for injunction should be finished within one month, where' an interim ex parte injunction has been granted;
(c) if extension of the duration of an interim ex parte injunction becomes absolutely necessary, the extension should be granted only once and should not exceed 15 days except with the consent of the opposite party;
(d) no interim ex parte injunction should be issued, unless a copy of the plaint accompanies it, as also a copy of the application for injunction.
39.13A. Some of the replies received on the question1 put by us in this behalf favour an amendment as suggested, while some of them are opposed to it on the principle that what is discretionary cannot be made rigid. Bearing in mind the views expressed, we have made the above recommendation.
1. Para. 39.11, supra.
39.13B. We are of the view that if a party, in an application for temporary injunction or in the supporting affidavit, knowingly makes a false statement on a material particular, the court should take that into account in exercising its discretion under Order 39, rule 4-that is to say-in considering the question whether the Court should vary or discharge the injunction. That is the law even now,1 but it can be usefully emphasised.
1. See English cases cited in Asiatic Engineering Co. v. Achhru Ram, AIR 1961 All 746, para. 51.
39.14. It has been emphasised in England,1 that an injunction may be refused if the plaintiffs have misled the defendant and the court. This is on the principle that he who comes in equity must come with clean hands-a maxim which has been described as not unrelated to the maxim ex turpi causa non oritor actio of the common law.2
1. Armstrong v. Sheppart & Short Ltd., (1959) 2 QB 384.
2. Snell Equity, (1966), p. 35.
39.15. If, on hearing of a motion by a plaintiff for an injunction, or, in the alternative, to continue an interim injunction already obtained ex parte, it appears that the interim order was irregularly obtained by suppression of facts, the Court may discharge the ex parte order without any cross notice of motion for that purpose by the defendant; though it may grant the injunction asked for.1
1. Boyse v. Gill, (1891) 64 LT 824, cited in Annual practice, under Order 50, rule 6.
Motion to dissolve ex parte injunctions
39.16. Kerr states the position thus:
"If, on the motion to dissolve an ex parte injunction, it appears that the plaintiff has mis-stated his case, either by misrepresentation, or by the suppression of material facts, so that an injunction has been obtained which would not have been obtained if a more accurate statement of the case had been made, the injunction will be dissolved on that ground alone1. The plaintiff will not be allowed to maintain it on the merits then disclosed2. Nor can he be heard to say that he was not aware of the importance of the facts so mis-stated or concealed,3 or that he had forgotten them.4 A motion to discharge an ex parte injunction on the ground of its having been obtained by misrepresentation is proper, though the injunction is about to expire5.
1. Kerr on Injunctions, (1927), pp. 660-661.
Brown v. Newall, 2 M&C 570: 6 LJ Ch 348; Castelli v. Cook, 7 Ha 94; Dalglish v. Jamie, Mac & C 231: 20 LJ Ch 475: 86 RR 83; Ross v. Buxton, 1888 WN 55; Boyce v. Gill, 64 LT 1891 WN 108; Schmitten v. Faulka, 1893 WN 64; see Rex v. Kensington Income Tax Commissioners, (1917) 1 KB 517: 86 LJKB 261.
2. Att. Gen. v. Corporation of Liverpool, 1 M&C 211: 43 RR 176; Castelli v. Cook, 7 Ha 94; Dalglish v. Jurvie, 2 Mac & C 238: 20 LJ Ch 475{ 86 RR 83.
3. Dalglish v. Jarvie, 2 Mac & C 241: 20 LJ CJ 476: 88 RR 83.
4. Clifton v. Robinson, 16 Beav 355: 96 RR 17].
5. Wimbledon Local Board v. Croydon Sanitary Authority, 32 Ch D 421: 56 Lj Ch 159.
39.17. It would be useful to codify the position by amending Order 39, rule 3.
Order 39, rule 4
39.18. Under Order 39, rule 4, a court can discharge, set aside or vary a temporary injunction. It is obvious that where a party has been heard (or had an opportunity of being heard), before the injunction was granted, the injunction should not be discharged etc. except in special cases. We propose an amendment to bring that out.
Recommendation
39.19. Accordingly, we recommend as follows:-
(i) The following proviso should be inserted below Order 38, rule 3-
"Provided that where an injunction has been granted without notice to the opposite party-
(a) the period for which it shall be in force as initially fixed shall not exceed one month;
(b) hearing of the application for injunction shall, as far as practicable, be finished within one month; and
(c) if it becomes absolutely necessary to extend the period for which the injunction is to remain in force, the extension shall not exceed fifteen days, except with the consent of the opposite party".
(ii) The following further proviso should be added below Order 39, rule 3:-
"Provided further that where an injunction is granted on the plaintiffs application without notice to the opposite party, the court shall, before granting it, require the plaintiff to file an affidavit stating that a copy, f each of the following documents has been served on the opposite party by delivery to him, or where such service not practicable, by sending it to him by registered post:-
(a) the plaint,
(b) the documents on which the plaintiff relies,
(c) the application for injunction, and
(d) the affidavit or other documents on which the applicant relies".
(iii) The following proviso should be inserted below rule 4 of Order 39:-
"Provided that i f a party, in an application for temporary injunction or in the supporting affidavit, has knowingly made a false or misleading statement on a material particular, and the injunction was granted without notice, the court shall vacate the injunction unless for reasons to be recorded it considers it just not to do so".
(iv) The following fourth proviso should be added to Order 39, rule 4-
"Provided further that where an order for injunction has been passed after giving a party an opportunity of being heard the order shall not be discharged, varied or set aside on the application of that party, unless there has been a change of circumstances, or, unless the court is satisfied that the order has caused undue hardship to that party".
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