Temporary Injunction suit in Bangladesh
In legal disputes, time plays a crucial role in determining the rights and interests of the parties involved. While civil suits can take a significant amount of time to reach a final decision, there are situations where immediate action is necessary to prevent irreparable harm or prejudice to the subject matter of the suit or the rights of the parties.
To address such situations, the legal system in Bangladesh allows for the granting of interim relief, such as temporary injunctions.
Temporary injunctions serve as a means to protect the interests of the parties until the suit is disposed of or further orders are given by the court. This article provides an in-depth understanding of injunction suits in Bangladesh, exploring their legal framework, principles, and conditions for grant.
The Legal Framework: Order 39 of the Code of Civil Procedure 1908
The provisions governing temporary injunctions in Bangladesh are outlined in Order 39 of the Code of Civil Procedure 1908. Rule 1 of Order 39 establishes the circumstances under which a temporary injunction may be granted.
It states that a temporary injunction may be granted when it is proven, by affidavit or other means, that:
(a) any property in dispute is in danger of being wasted, damaged, or alienated by any party to the suit or wrongfully sold in execution of a decree, or (b) the defendant threatens or intends to remove or dispose of their property with the purpose of defrauding their creditors.
Based on this provision, the court has the power to grant a temporary injunction to restrain such acts or make any other order deemed necessary to prevent wasting, damaging, alienation, sale, removal, or disposition of the property until the suit is disposed of or further orders are issued.
Applying for Temporary Injunctions and Nature of Relief
Typically, the plaintiff is the party that prays for temporary injunctions. However, in appropriate circumstances, the defendant may also seek and obtain an order of temporary injunction against the plaintiff. It is important to note that the relief of temporary injunction is of an equitable nature and is not granted if the party applying for it does not come with clean hands.
Parties Bound by an Order of Injunction
An injunction can only be issued against a party to the suit. However, in certain cases, it may be issued against a person outside the jurisdiction of the court.
On the other hand, an injunction cannot be issued against a stranger who is not a party to the suit or against a court. Government officers exercising their rights in the course of their duty are generally exempt from injunctions, unless bad faith can be established.
An order of injunction is binding on the parties to the suit, as well as their agents or servants. However, individuals who were neither parties to the suit nor named in the injunction order cannot be held liable for violation of the order unless they were aware of its existence and willfully disobeyed it.
Operation and Duration of Temporary Injunctions
A temporary injunction order takes effect from the date it is made, and any party with notice or knowledge of the order is bound by it from that time. Temporary injunctions can be granted until the disposal of the suit or until further orders are given by the court.
The injunction is dissolved when a further order is made or when the suit comes to an end. If the duration of the injunction is not specified or vacated earlier, it terminates when the suit concludes.
Principles Governing the Grant of Injunctions
The court has the authority to impose reasonable terms and conditions on the granting of an injunction. However, these conditions must not make it impossible for the party to comply, thus denying the relief they would otherwise be entitled to. Before granting an injunction, the court must be satisfied with certain aspects:
- Prima Facie Case:
The applicant must demonstrate a prima facie case supporting the right claimed. This does not require the case to be proven conclusively but rather that, if the evidence presented is believed, it supports the claimed right. The court does not delve into resolving conflicts of evidence or deciding complex questions of fact and law at this stage. It focuses on whether a possible conclusion can be reached based on the evidence presented.
- Actual or Threatened Violation:
The applicant must show an actual or threatened violation of the right claimed. There should be a reasonable apprehension of irreparable or serious damage if the injunction is not granted.
- Fair and Honest Conduct:
The applicant’s conduct must be fair and honest. There should be no acquiescence or undue delay in seeking the injunction.
- Balance of Inconvenience:
The court considers whether granting the injunction would cause greater inconvenience compared to refusing it. This balance of inconvenience analysis aims to determine the most equitable outcome.
- Lack of Equally Efficacious Relief:
The court assesses whether there are alternative means or proceedings available to obtain an equally effective remedy. If such alternatives exist, the injunction may not be granted.
Situations Where Temporary Injunctions Can be Granted
Temporary injunctions can be granted in various circumstances, including:
- Protection of Property: When property in dispute is at risk of being wasted, damaged, alienated, or wrongfully sold in execution of a decree.
- Defrauding Creditors: If the defendant threatens or intends to remove or dispose of their property to defraud their creditors.
- Breach of Contract or Injury: When the defendant is about to commit a breach of contract or cause injury of any kind.
- Interest of Justice: When the court determines that the interest of justice necessitates the granting of an injunction, even if the specific situations mentioned above are not applicable.
Instances Where Injunctions Cannot be Granted
Injunctions cannot be granted under certain circumstances, including:
- Vague or Indefinite Allegations:
If the allegations made in the application are vague or indefinite, an injunction cannot be issued. The description of the property should be specific and not ambiguous.
- Special Enactment:
Injunctions cannot be granted in matters covered by provisions in a special enactment.
- Interference with Public Duties:
Injunctions should not interfere with the performance of public duties.
- Infructuous Orders:
Temporary injunctions cannot be granted when the act sought to be restrained has already been done, rendering the order ineffective.
Important roles played by injunction suit
Injunction suits play a vital role in protecting the rights and interests of parties in legal disputes. In Bangladesh, temporary injunctions serve as interim relief during the pendency of a civil suit, safeguarding against potential irreparable harm or prejudice.
The legal framework provided by Order 39 of the Code of Civil Procedure 1908 governs the granting of temporary injunctions. Courts exercise discretion when deciding whether to grant an injunction, considering factors such as prima facie case, irreparable injury, balance of inconvenience, and the unavailability of equally efficacious relief.
Res judicata precludes complaint injunction:
When res judicata presumptively precludes a lawsuit, no preliminary injunction can be issued. Nonetheless, in a number of decisions it was ruled that, at the interlocutory stage, the court is only to consider whether the plaintiff has raised triable issues and whether there are substantial questions that require investigation.
When there is no uncertainty about the application of res judicata, it cannot be said that the applicant has a prima facie case, according to the argument. On the other hand, if an applicant’s possession was determined in a prior lawsuit, he may be entitled to an injunction based on the prior determination.
Similarly, B cannot obtain a temporary injunction against A if A was determined to be the true proprietor of the disputed property in a previous lawsuit. In light of the earlier ruling in the writ petition that the plaintiff lacked title, his request for a temporary restraining order regarding the subject land is without merit.
Question of maintainability of litigation in temporary injunction application:
It has been held that the court is not required to examine the maintainability of a suit at the time of hearing an injunction matter; this determination is to be made after the filing of a written statement and the formulation of the issue at hand.
In another case, it was held that the maintainability of a lawsuit should not be addressed at the interlocutory stage, especially when evidence will be required at the trial of the lawsuit to correctly decide the issue.
It is argued that the principle is expressed too broadly. It is true that the question of maintainability must be postponed when additional evidence is required to determine the issue, but there may be instances in which the suit is not maintainable and a temporary injunction cannot be issued. A plaintiff cannot have a prima facie case if the lawsuit cannot be maintained ex facie.
Impact of admittance:
In determining an application for temporary injunction, an admission made by a party in a prior proceeding may be considered at face value, and if such an admission destroys the applicant’s case, temporary injunction cannot be granted.
The plaintiff cannot obtain a temporary injunction to safeguard his alleged possession if, according to his own evidence, he transferred the land prior to the completion of his own settlement.
Cohabitation for Injunction Granting:
Circumstances in which a temporary restraining order may be granted:
An order of temporary injunction may be issued if
(i) the property in dispute is in danger of being wasted, damaged, alienated, or wrongfully sold in execution of a decree; (ii) the defendant threatens or intends to remove the property to defraud his creditors; (iii) the defendant is about to commit a breach of contract or other injury of any kind; or (iv) the court is of the opinion that the interest of justice so requires.
Property in contention
The property over which an injunction can be issued must be the property that is directly at issue in the lawsuit and no other property, nor property that is indirectly affected by the property at issue. In order to obtain an injunction regarding immovable property, it must be specified in a manner that allows it to be readily identified.
To obtain an injunction, the applicant must have an interest in the disputed property.When the defendant is in possession of the suit property claiming title, he is permitted to alter the nature and character of the property so long as it does not detract from its value.
He is also permitted to construct on the property at his own risk and cannot be restrained. One cannot obtain an injunction to prevent an alleged debtor from disposing of his property.
Injunction in particular performance litigation
Contract of sale does not confer title to the vendee; therefore, a transferee under a sale deed cannot be prevented from enjoying possession of the property by a person alleging to have a prior agreement of sale in his favor.
During the pendency of a suit for specific performance, the defendant may be restrained from conveying the suit property or allowing third parties to construct on it.
It has been determined, however, that in a petition for specific performance, an order of injunction prohibiting alienation is unnecessary because section 52 of the Transfer of Property Act is a sufficient safeguard.
Favor by constructing the structure, and the court would not in equity order the structure’s demolition.
Subsequently, the Appellate Division distinguished those cases and ruled that a co-owner cannot continue construction if he possesses more land than his share.
In Hashem Ali v. Begum Nurjahan, 9 MLR, the Appellate Division determined that the principle that in urban areas no co-sharer should be restrained by injunction from constructing is inapplicable when the right to construct is founded on a fraudulent deed.
When one co-owner invites a tenant onto the property without the consent of the other co-owner and the tenant operates a workshop without permission and a license from the Municipal Corporation, the court may prohibit the tenant from operating a workshop on the property.
Steps of an Injunction Suit in Bangladesh:
|1||Relevant Law||Order 39 of the Code of Civil Procedure 1908 deals with the provisions of Temporary Injunctions in Bangladesh.|
|2||Purpose||To provide interim relief during the pendency of a civil suit, protecting the rights and interests of the parties involved.|
|3||Who can apply?||Generally, the plaintiff is the party that prays for a temporary injunction. In certain situations, the defendant may also seek and obtain an order of temporary injunction against the plaintiff.|
|4||Nature of the relief||The relief of temporary injunction is of an equitable nature. It is not granted if the party applying for it does not come with clean hands.|
|5||Parties involved||An injunction can be issued only against a party to the suit. In exceptional cases, an injunction may be issued against a person outside the jurisdiction of the court.|
|6||Injunction against strangers||An injunction cannot be issued against a stranger who is not a party to the suit or against a court. It also does not apply to government officers bona fide exercising their rights or alleged rights in the course of their duty.|
|7||Binding of the injunction||An order of injunction is binding on the parties to the suit and their agents or servants. However, persons who were not party to the suit nor named in the injunction order cannot be proceeded against for violation of the order.|
|8||Operation of the injunction||An order of temporary injunction operates from the date it is made, and any party who has notice or knowledge of the order is bound by it. It remains in effect until the disposal of the suit or until further orders from the court.|
|9||Duration of the injunction||Unless its duration is specified or vacated earlier, an order of temporary injunction terminates as soon as the suit comes to an end. It takes effect upon communication to the party injuncted.|
|10||Principles governing grant||The grant of a temporary injunction is at the discretion of the court and must be based on sound legal principles. The court must be satisfied that the applicant has a prima facie and arguable case, will suffer irreparable injury or loss without the injunction, and that the balance of inconvenience favors the applicant. The court considers various factors such as the prima facie case, irreparable injury, and balance of inconvenience while granting the injunction.|
This table provides a comprehensive overview of the key aspects of injunction suits in Bangladesh, helping to understand the relevant legal provisions and the factors considered by the court when granting temporary injunctions.
How to Hire the best law firm in Bangladesh to initiate your injunction suit in Bangladesh:
Tahmidur Rahman Remura Wahid (TRW) is widely regarded as one of the finest law firms in Bangladesh, and it provides superior legal services to clients who wish to file an injunction suit.
There are numerous reasons why TRW is the best option for individuals and businesses requiring effective legal representation in injunction cases.
In the first place, TRW has a team of highly competent and seasoned attorneys who specialize in civil litigation, including injunction cases.
The firm’s attorneys have a comprehensive comprehension of the legal framework surrounding temporary injunctions in Bangladesh, including the pertinent provisions of the Civil Procedure Code of 1908. Their expertise enables them to navigate the complexities of injunction cases with precision and efficiency, guaranteeing their clients the best possible outcome.
The attorneys at TRW have a history of success in injunction cases. They have a thorough understanding of the principles governing the issuance of injunctions and are familiar with the relevant legal precedents and case law. This extensive experience gives them a competitive advantage and enables them to craft persuasive arguments and case-specific strategies.
Additionally, TRW is known for its customer-centric approach. The firm places a premium on gaining a thorough understanding of clients’ objectives, concerns, and priorities. They take the time to attend to their clients and give each case individualized attention.
This client-centered approach enables them to develop effective legal strategies that correspond with their clients’ objectives, protecting their clients’ interests throughout the injunction suit process.
In addition to their legal knowledge, TRW is renowned for its professionalism and honesty. The firm adheres to the utmost ethical standards in all of its dealings, fostering trust and openness between its attorneys and clients.
They maintain open channels of communication, keeping clients apprised of the status of their cases and providing timely counsel and direction. Clients can rely on TRW’s attorneys to provide straightforward assessments of their cases and reasonable expectations, enabling them to make well-informed decisions.
In addition, TRW has established a solid reputation for its commitment to social responsibility. The firm’s dedication to making a positive impact beyond the courtroom is evidenced by its participation in pro bono work and community service.
This commitment to social justice correlates with the values of many clients who seek legal representation from a firm that prioritizes both their individual needs and the general welfare of society.
Tahmidur Rahman Remura Wahid (TRW) is the finest law firm in Bangladesh for pursuing an injunction.
With its team of skilled and seasoned attorneys, client-centered approach, dedication to excellence, and commitment to social responsibility, TRW provides the highest level of legal representation for clients seeking to protect their rights and interests through injunction proceedings.
Whether navigating a complex legal landscape or advocating for the best interests of clients, TRW consistently delivers exceptional results, making it the firm of choice for individuals and businesses in need of expert legal counsel in injunction matters.
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