How to Get a Restraining Order in India
by Srishti Arora | Fri May 10 2019
A restraining order is a Court issued order to prohibit an individual from carrying out a particular action, especially approaching or contacting a specific person or to protect a person from danger or apprehended danger. It prevents a person from violating rights of another or bothering him unnecessarily in any way. It is issued by a civil court on an application by the aggrieved party and can be permanent or temporary in nature. Restraining orders in India are known as injunctions which are sought as relief from the Court. An injunction order is not a right but a discretion of the Court if it deems fit.
Temporary Injunction Order
It is issued by the Court for a limited period of time. It is passed during the course of the proceedings of the case when immediate relief is required and is valid till the issue is resolved through a final order of the Court. It is in the form of a provisional remedy and can be invoked at any stage of the case. The rationale behind this is that during the pendency of the case the interest of both the parties needs to be protected. It canbe granted by the Court in the following circumstances:
a) Any property in dispute in the caseis in danger of being damaged oraltered by other party, or wrongfully sold; or
b) The opposite party threatens to remove or dispose off his property with a view to defraud the creditors; or
c) The opposite party threatens to dispossess the plaintiff or otherwise cause injury to him relating to any property in dispute in the pending case.
The applicant has to establish a prima facie case i.e. it should be clear at first instance that the circumstances mentioned in the injunction application are possible and an order is urgently required.
Permanent Injunction Order
It is used to restrain a person permanently from committing any act or from interfering with the rights of another person; prohibition from committing an act indefinitely. It is passed through a final order of the Court.It can be granted by the Court in the following circumstances:
To prevent the breach of an obligation existing in the person’s favor who seeks it.
When such an obligation arises from a contract.
When the person against whom the injunction is demandedinvades or threatens to invade the right to enjoyment of property, the Court may grant anorder-
when the person against whom injunction is sought holds the property as a trustee,
where it is not possible toascertain actual damage caused or likely to be caused by the invasion,
where invasion is such that monetary compensation would not be justified as adequate relief, or
whereinjunctionorderis necessary to prevent multiple proceedingsof the case.
Application for Restraining/Injunction Order
To get restraining order in India, an injunction application has to be filed through a civil lawyer before the appropriate court or tribunal where your case is being heard. The nature of injunction sought can be preventive, prohibitive, restrictive or mandatory. The application is to be accompanied by a written statement that will clearly specify why the injunction order is needed.When an application for injunction is filed by one party, the Court shall direct a notice of application to the opposite party, before granting the order for injunction. However, if according to the Court,the purpose of the injunction would be defeated by the delay, it may not provide such notice. If the court does not inform the opposite party, the reason for doing so will be recorded by it.
If injunction has been granted without notifying the opposite party, the Court will direct the applicant to notify the opposite party immediately after injunction order has been passed, by delivery or by sending him by registered post, a copy of the application for injunction together with-
copy of the affidavit filed in support of the application;
copy of the plainti.e. document stating the accusations; and
copiesof documents on which the applicant relies.
The applicant will then have to file in Court on the day on which such injunction is granted or on the next day an affidavit stating that the copies aforesaid have been delivered or sent to the opposite party. The Court has to dispose of application for injunction within thirty dayswhenan injunction has been granted without giving notice to the opposite partyand if it fails,then reasons are to be recorded for the same.
Order for injunction can alsobe dismissed or set asideby the Court, on an application by any party dissatisfied by the order. If in an application for temporary injunction or in any affidavit supporting such application, applicant hadknowingly made a false or misleading statement in relation to an important factand the injunction was granted without giving notice to the opposite party, the Court shall dismiss the orderunless, for reasons to be recorded, it considers that it is not necessary to do so as any false or misleading statement did not affect the decision.
But, if order for injunction was passed after giving to a party an opportunity of being heardproperly, the order shall not be dismissedon the application of that party except where such dismissal has become necessaryby a change in the circumstances, or unless the Court is satisfied that the order is unjust on the part of such party. Onecan even claim any additional damages along with the injunction sought, either temporary or permanent, or in substitution of the said injunction, the court may award such damages, if it thinks fit.
A restraining order is a preventive measure that tries to look into the interests of both the parties. Such orders are necessary to deal with and to protect rights of the parties during the proceedings of the case and also after final order is passed. Temporary orders prevent abuse of process during the pendency of case. The Court has also been given the power to take a legal action against the party which disobeys the terms of any suchorder.Whether an order will be passed or not depends uponthe facts and circumstances of each case.