injunction[term paper]

Chapter 1

1.1 INTRODUCTION

An injunction commands an act that the court regards as essential to justice, or it prohibits an act that is deemed to be contrary to good conscience. It is an extraordinary remedy, reserved for special circumstances in which the temporary preservation of the status quo is necessary.

An injunction is ordinarily and properly elicited from other proceedings. For example, a landlord might bring an action against a tenant for waste, in which the right to protect the land-lord's interest in the ownership of the premises is at issue. The landlord might apply to the court for an injunction against the tenant's continuing harmful use of the property. The injunction is an ancillary remedy in the action against the tenant.

Injunctive relief is not a matter of right, but its denial is within the discretion of the court. Whether or not an injunction will be granted varies with the facts of each case.

The courts exercise their power to issue injunctions judiciously, and only when necessity exists. An injunction is usually issued only in cases where irreparable injury to the rights of an individual would result otherwise. It must be readily apparent to the court that some act has been performed, or is threatened, that will produce irreparable injury to the party seeking the injunction. An injury is considered irreparable when it cannot be adequately compensated by an award of damages. The pecuniary damage that would be incurred from the threatened action need not be great, however. If a loss can be calculated in terms of money, there is no irreparable injury. The consequent refusal by a court to grant an injunction is, therefore, proper. Loss of profits alone is insufficient to establish irreparable injury. The potential destruction of property is sufficient.

Injunctive relief is not a remedy that is liberally granted, and, therefore, a court will always consider any hardship that the parties will sustain by the granting or refusal of an injunction. The court that issues an injunction may, in exercise of its discretion, modify or dissolve it at a later date if the circumstances so warrant.

1.2 DEFINITION

An injunction is an equitable remedy in the form of a court order that requires a party to do, or to refrain from doing, certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions. In some cases, breaches of injunctions are considered serious criminal offenses that merit arrest and possible prison sentences.

(Illustration: injunction n. a writ (order) issued by a court ordering someone to do something or prohibiting some act after a court hearing. The procedure is for someone who has been or is in danger of being harmed, or needs some help (relief) or his/her attorney, to a) petition for the injunction to protect his/her rights; to b) get an "order to show cause" from the judge telling the other party to show why the injunction should not be issued; c) serve (deliver or have delivered) the order to show cause on the party whom he/she wishes to have ordered to act or be restrained ("enjoined"); d) appear at a scheduled hearing in which both sides attempt to convince the judge why the injunction should or should not be granted. If there is danger of immediate irreparable harm at the time the petition is filed, a judge may issue a temporary injunction which goes into affect upon it being served (deliver or have delivered) to the other party. This temporary injunction will stay in force until the hearing or sometimes until the outcome of a lawsuit is decided in which an injunction is one of the parts of the plaintiff's demands (in the "prayer"). A final and continuing injunction is called a permanent injunction. Examples of injunctions include prohibitions against cutting trees, creating nuisances, polluting a stream, picketing which goes beyond the bounds of free speech and assembly, or removing funds from a bank account pending determination of ownership. So-called "mandatory" injunctions which require acts to be performed, may include return of property, keeping a gate to a road unlocked, clearing off tree limbs from a right-of-way, turning on electricity or heat in an apartment building, or depositing disputed funds with the court.)

1.3 WHEN INJUNCTION APPLIES

Rationale and reasons for injunctionsThis injunctive power to restore the status quo ante; that is, to make whole again someone whose rights have been violated, is essential to the concept of fairness (equity). For example, money damages would be of scant benefit to a land owner who wished simply to prevent someone from repeatedly trespassing on his land.

These are some common reasons for injunctions:

• stalking
• domestic violence
• harassment
• discrimination
• bullying (in some cases)
• physical or sexual abuse
• the wrongful transfer of real property, also called fraudulent conveyance
• the disclosure of sensitive information in line with the Official Secrets Act 1989 (UK only)
• trademark infringement
• copyright infringement
• patent infringement
• trade secret disclosure
• tortious interference of contract
• criminal contempt
• civil contempt

chapter 2

2.1 TYPES OF INJUNCTION

Preliminary A preliminary or temporary injunction is a provisional remedy that is invoked to preserve the subject matter in its existing condition. Its purpose is to prevent dis-solution of the plaintiff's rights. The main reason for use of a preliminary injunction is the need for immediate relief.

Preliminary or temporary injunctions are not conclusive as to the rights of the parties, and they do not determine the merits of a case or decide issues in controversy. They seek to prevent threatened wrong, further injury, and irreparable harm or injustice until such time as the rights of the parties can be ultimately settled. Preliminary injunctive relief ensures the ability of the court to render a meaningful decision and serves to prevent a change of circumstances that would hamper or block the granting of proper relief following a trial on the merits of the case.

A motion for a preliminary injunction is never granted automatically. The discretion of the court should be exercised in favor of a temporary injunction, which maintains the status quo until the final trial. Such discretion should be exercised against a temporary injunction when its issuance would alter the status quo. For example, during the Florida presidential-election controversy in 2000, the campaign of george w. bush asked a federal appeals court for a preliminary injunction to halt the manual counting of ballots. It sought a preliminary injunction until the U.S. Supreme Court could decide on granting a permanent injunction. In that case, Siegel v. Lepore, 234 F.3d 1163 (11th Cir. 2000). the U.S. Court of Appeals for the Eleventh Circuit refused to grant the injunction, stating that the Bush campaign had not "shown the kind of serious and immediate injury that demands the extraordinary relief of a preliminary injunction."

Preventive Injunctions An injunction directing an individual to refrain from doing an act is preventive, prohibitive, prohibitory, or negative. This type of injunction prevents a threatened injury, preserves the status quo, or restrains the continued commission of an ongoing wrong, but it cannot be used to redress a consummated wrong or to undo that which has already been done.

The Florida vote count in the presidential election of 2000 again serves as a good example. There, the Bush campaign sought preventive injunctions to restrain various counties from performing recounts after the Florida results had been certified. The Bush campaign did not attempt to overturn results already arrived at, but rather attempted to stop new results from coming in. In turn, the Gore campaign attempted to obtain a preventive injunction to prevent Florida's secretary of state from certifying the election results.

Mandatory Injunctions Although the court is vested with wide discretion to fashion injunctive relief, it is also restricted to restraint of a contemplated or threatened action. It also might compel Specific Performance of an act. In such a case, it issues a mandatory injunction, commanding the performance of a positive act. Because mandatory injunctions are harsh, courts do not favor them, and they rarely grant them. Such injunctions have been issued to compel the removal of buildings or other structures wrongfully placed upon the land of another.

Permanent Injunctions A permanent or perpetual injunction is one that is granted by the judgment that ultimately disposes of the injunction suit, ordered at the time of final judgment. This type of injunction must be final relief. Permanent injunctions are perpetual, provided that the conditions that produced them remain permanent. They have been granted to prevent blasting upon neighboring premises, to enjoin the dumping of earth or other material upon land, and to prevent Pollution of a water supply.

An individual who has been licensed by the state to practice a profession may properly demand that others in the same profession sub-scribe to the ethical standards and laws that govern it. An injunction is a proper remedy to prevent the illegal practice of a profession, and the relief may be sought by either licensed practitioners or a professional association. The illegal Practice of Law, medicine, dentistry, and architecture has been stopped by the issuance of injunctions.

Acts that are injurious to the public health or safety may be enjoined as well. For example, injunctions have been issued to enforce laws providing for the eradication of diseases in animals raised for food.

The government has the authority to protect citizens from damage by violence and from fear through threats and intimidation. In some states, an injunction is the proper remedy to bar the use of violence against those asserting their rights under the law.

Acts committed without Just Cause that interfere with the carrying on of a business may be enjoined if no other adequate remedy exists. A Trade Secret, for example, may be protected by injunction. An individual's right of personal privacy may be protected by an injunction if there is no other adequate remedy, or where a specific statutory provision for injunctive relief exists. An individual whose name or picture is used for advertising purposes without the individual's consent may enjoin its use. The theory is that injunctive relief is proper because of a celebrity's unique property interest in the commercial use of his or her name and likeness (i.e., their right of publicity).

Restraining Orders A Restraining Order is granted to preserve the status quo of the subject of the controversy until the hearing on an application for a temporary injunction. A Temporary Restraining Order is an extraordinary remedy of short duration that is issued to prevent unnecessary and irreparable injury. Essentially, such an order suspends proceedings until an opportunity arises to inquire whether an injunction should be granted. Unless extended by the court, a temporary restraining order ceases to operate upon the expiration of the time set by its terms.

2.2 INJUNCTION UNDER DIFFERENT PERSPECTIVE

American injunctions

Temporary restraining orders

A temporary restraining order (TRO) may be issued for short term. A TRO usually lasts while a motion for preliminary injunction is being decided, and the court decides whether to drop the order or to issue a preliminary injunction.

A temporary restraining order may be granted ex parte, that is, without informing in advance the party to whom the temporary restraining order is directed. Usually, a party moves ex parte to prevent an adversary from having notice of one's intentions. The TRO is granted to prevent the adversary from acting to frustrate the purpose of the action, for example, by wasting or hiding assets (as often occurs in dissolution of marriage) or disclosing a trade secret that had been the subject of a non-disclosure agreement.

To obtain a temporary restraining order, a plaintiff must prove four elements: (1) likelihood of success on the merits; (2) irreparable harm,absent the order; (3) that less harm will result to the defendant if the TRO issues than to the plaintiffs if the TRO does not issue; and (4) that the public interest, if any, weighs in favor of plaintiff. If the balance of hardships tips in favor of plaintiff, then the plaintiff must only raise "questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberative investigation."

Other kinds of restraining orders

Many states have injunction laws that are written specifically to stop domestic violence, stalking, sexual assault or harassment and these are commonly called restraining orders, orders of protection, abuse prevention orders, or protective orders.

2.3 INJUNCTIONS IN U.S. LABOR LAW CONTEXT

After the United States government successfully used an injunction to outlaw the Pullman boycott in 1894 in the case of In re Debs, employers found that they could obtain federal court injunctions to ban strikes and organizing activities of all kinds by unions. These injunctions were often extremely broad; one injunction issued by a federal court in the 1920s effectively barred the United Mine Workers of America from talking to workers who had signed yellow dog contracts with their employers.

Unable to limit what they called "government by injunction" in the courts, labor and its allies persuaded the U.S. Congress in 1932 to pass the Norris-LaGuardia Act, which imposed so many procedural and substantive limits on the federal courts' power to issue injunctions as to effectively prohibit all federal court injunctions in cases arising out of labor disputes. A number of states followed suit and enacted "Little Norris-LaGuardia Acts" that imposed similar limitations on state courts' powers. The courts have since recognized a limited exception to the Norris-LaGuardia Act's strict limitations in those cases in which a party seeks injunctive relief to enforce the grievance arbitration provisions of a collective bargaining agreement.

Employment discrimination

Differing from most other cases, where equitable relief is given very rarely, in discrimination cases, injunctive relief is actually the preferred method of remedy. However, if there is evidence that there is now a hostile relationship between the employer and employee, the court may order a reasonable amount of "front pay"along with the back pay (back pay: The amount of lost wages and benefits that an employee lost ever since he was terminated, up to the point that the judgment is entered

2.4 AUSTRALIAN APPREHENDED VIOLENCE ORDERS

A court may grant an apprehended violence order (AVO) to a person who fears violence, harassment, abuse, or stalking. A court may issue an AVO if it believes, on the balance of probabilities, that a person has reasonable grounds to fear personal violence, harassing conduct, molestation, intimidation, or stalking. A defendant's non-compliance with the order may result in the imposition of a fine, imprisonment, or both.

2.5 UK SUPER-INJUNCTIONS

In England and Wales a new form of injunction known as a "super-injunction" is a form of gagging order in which the press is prohibited from reporting even the existence of the injunction, or any details of it. An example was the super-injunction raised in September 2009 by Carter-Ruck solicitors on behalf of oil trader Trafigura, prohibiting the reporting of an internal Trafigura report into the 2006 Côte d'Ivoire toxic waste dump scandal. The existence of the super-injunction was only revealed when it was referred to in a parliamentary question (mention in which Parliamentary privilege permits the disclosure without being held in contempt of court), which was circulated on the internet, leading to the injunction being varied (before it could be challenged in court) to permit reporting of the question By long legal tradition, parliamentary proceedings may be reported without restriction. Parliamentary proceedings are only covered by qualified privilege.

A "hyper-injunction" is similar, but also includes an order that the injunction must not be discussed with members of Parliament or journalists or lawyers. One known hyper-injunction was obtained at the High Court in 2006, preventing its subject from saying that paint used in water tanks on passenger ships can break down and release potentially toxic chemicals. This example became public knowledge in Parliament under Parliamentary privilege.

2.6 INJUNCTION (BANGLADESH PERSPECTIVE)

A Bangladesh court has overturned an injunction that barred leasing out the country’s onshore gas blocks to international oil companies (IOCs), a senior energy official said on Friday.

“The decision paved the way for much needed exploration by the IOCs to meet the ever growing demand for natural gas,” said Mohammad Mohsin, government secretary for the energy division.

The court also discharged a petition that challenged the government’s move to sign production-sharing contracts (PSC) with IOCs for onshore oil and gas exploration.

“It will also help us (government) to initiate a fresh bidding process to explore natural gas in any onshore blocks,” Mohsin told Reuters.

A High Court ordered a halt in 2001 to PSCs with IOCs and awarding any hydrocarbon blocks, both onshore and offshore, after a senior official sought an injunction after a massive gas field explosion in 1997.

In 2006, a court lifted the injunction on signing production-sharing agreements with international oil companies for offshore gas blocks, but the onshore order remained in place.

Bangladesh has a daily gas shortage of up to 250 million cubic feet (mmcft).

Around 98 percent of the country’s gas production of about to 1,940 mmcft per day comes from onshore gas fields, and the rest, 2 percent or 35 mmcft, comes from the lone offshore Sangu gas field at the Bay of Bengal in Chittagong.

Gas output by the IOCs accounted for 1,069 mmcft per day or over 53.50 percent of the total generation of around 1,980 mmcft and the state-run Bangladeshi firms produced 920 mmcft per day.

The IOCs have been awarded 12 hydrocarbon blocks – both onshore and offshore – since gas exploration began in the late 1960s.

Foreign firms involved in gas exploration and production in Bangladesh include Chevron (CVX.N: Quote, Profile, Research) of the United States, the U.K.’s Cairn Energy (CNE.L: Quote, Profile, Research), Tullow (TLW.L: Quote, Profile, Research), French oil firm Total SA (TOTF.PA: Quote, Profile, Research), Australia’s Santos International (STO.AX: Quote, Profile, Research), the U.S-based Haliburton (HAL.N: Quote, Profile, Research) and Canada’s Niko Resources (NKO.TO: Quote, Profile, Research).

MOre Analysys.

the High Court last Thursday vacated a nine-year old injunction on government’s bid to involve the international oil companies (IOCs) in onshore hydrocarbon exploration. The same bench also discharged a writ petition challenging the official move to sign production-sharing contracts (PSCs) with the IOCs for both onshore and offshore exploration for oil and gas. Another HC bench back in 2006 partially vacated the injunction allowing the government to sign PSCs with the IOCs in the case of offshore gas blocks.

The vacation of the court injunction has come at a time when the country is reeling under the worst-ever gas crisis. The operations of mills and factories and CNG filling stations have been seriously affected by the short supply of gas. Residents in many parts of the city and its adjoining areas are not getting gas supply to their kitchen from morning to evening everyday. On the top of everything, many power plants have been running well below their capacity because of inadequate gas supplies. In such a situation, the government, following its discussion with trade bodies and associations, has recently enforced the first-ever holiday staggering programme for industries in and around Dhaka to manage the crisis somehow. But reports have it that the objective of the programme is being met, only partially, as many industrial units are not complying with government instruction.

Such flouting is not acceptable. However, one cannot, at the same time, overlook the sufferings of the gas-based industries. Many entrepreneurs had decided to go for gas-based industries because of its low cost and assured supply. They had got the impression from the successive governments, experts and donors agencies that the country was floating on gas. But the reality is now proving otherwise. The proven reserve of the existing gas fields across the country, according to experts, would be able to meet the demand for another three to four years. The reserve, actually, would not have lasted that long, had the government provided enough gas to all the existing and standby consumers. The discovery of gas and its use have helped the nation save a substantial amount of foreign exchange every year that would have been otherwise used for import of petroleum products. More importantly, it has helped the domestic manufacturers to lower the cost of their products.

However, all is not lost, it seems. Experts are hopeful about striking new gas reserves both onshore and offshore. But the situation on the ground calls for immediate actions to help translate hope into reality. The actions relate to exploration activities. Since the state-owned Bangladesh Petroleum Exploration Company (Bapex) does not have the resources to go for cost-intensive and big exploration works, the country is left with no option other than engaging the IOCs. But the progress to that effect appears to be very slow. For instance, the HC vacated the injunction partially in 2006 to allow the government to sign any deal with IOCs on offshore exploration. Four years have gone by since then, two successful international bidders are still waiting to sign PSCs with the government to get exploration rights for a few offshore blocks. However, the maritime boundary dispute with Myanmar and India could be another reason for the delay. But in the case of onshore exploration, the government is not facing any such problem. With the High Court clearing the way for onshore exploration by IOCs, the government should take immediate measures to invite international bids for exploration in the remaining prospective onshore blocks.

SPECIFIC RELIEF ACT

PREVENTIVE RELIEF HOW GRANTED 

 52. Preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual.

   

 

 TEMPORARY INJUNCTIONS PERPETUAL INJUNCTIONS 

 53. Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period of a suit, and are regulated by the Code of Civil Procedure.

A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit: the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. ¹

   

 CHAPTER 3

3.1 PERPETUAL INJUNCTION

     54. perpetual injunction when granted.-Subject to the other provisions contained in, or referred to by this Chapter a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.

     When such obligation arises from contract, the court shall be guided by the rules and provisions contained in chapter II of this act .

      When the defendant invades or threatens to invade the planintiff’s right to or enjoyment of property, the court may grant a perpetual injunction in the following cases (namely):-

       (a)where the defendant is trustee or the property for the plaintiff;

       (b)where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion;

       (c)where the invasion is such that pecuniary compensation would not afford adequate relief;

       (d)where it is probable that pecuniary compensation can not be got for the invasion;

       (e)where the injunction is necessary to prevent a multiplicity of judicial proceedings.

           

      Mandatory injunction

    section55

 Mandatory injunction.-When to prevent the brech of contract of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

          

Illustrations

        (a)A,by new buildings, obstructs to the acces and use of which B has acquired a right under the Limitation Act,Part IV. B may obtain an injunction, not only to restrain A from going on with the buildings, but also to pull down so much of them as obstructs B’s lights.

        (b)A builds of house with eaves projecting over B’s land. B May one sue for an injunction to pull down so much of the eaves as so project.

        (c) In the case put as illustration (y)to section 54, the Court may also order all written communications made by B, as patient, to A as medical adviser to be destroyed.

        (d)In the case put as illustration (y) to section 54, the Court may also order A’s letters to be destroyed.

        (e) A threatens to publish statements concerning B which would be punishable under chapter XXI of the Pakistan Penal Code(XLV of 1860). The Court may grant an injunction to restrain the publication, even though it may be shown not to be injurious to B’s property,

        (f) A being B’s medical adviser, threatens to publish B’s written communications with him, showing that B has led an immoral life. B may obtain an injunction to restrain the publication.

        (g)In the cases put as illustration  (y) and (w) to section 54, and in illustrations (e)and (f) to this section, the court may also order the copies produced by pairacy, and the trade marks, statements and communications there in respectively mentioned, to be given up or destroyed.

Section 56

Injunction when refused   56. An injunction cannot be granted-

(a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to stay proceedings in a Court not subordinate to that from which the injunction is sought;

(c) to restraint persons from applying to any legislative body;

(d) to interfere with the public duties of any department of the Government, or with the sovereign acts of Foreign Government;

(e) to stay proceedings in any criminal matter;

(f) to prevent the breach of a contract the performance of which would not be specifically enforced;

(g) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;

(h) to prevent a continuing breach in which the applicant has acquiesced;

(i) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(j) when the conduct of the applicant on his agents has been such as to disentitle him to the assistance of the Court;

(k) where the applicant has no personal interest in the matter.

Illustrations

(a) A seeks an injunction to restrain his partner, B, from receiving the partner-ship-debts and effects. It appears that A had improperly possessed himself of the books of the firm and refused B access to them. The Court will refuse the injunction.

(b) A manufactures and sells crucibles, designating them as "patent plumbago crucibles", though, in fact, they have never been patented. B pirates the designation. A cannot obtain an injunction to restrain the piracy.

(c) A sells an article called "Mexican Balm," stating that it is compounded of divers rare essences, and has sovereign medicinal qualities. B commences to sell a similar article to which he gives a name and description such as to lead people into the belief that they are

buying A's Mexican Balm. A sues B for an injunction to restrain the sale. B shows that A's Mexican Balm consists of nothing but scented hog's lard. A's use of his description is not an honest one and he cannot obtain an injunction.

  

Section 57

Injunction to perform negative agreement   57. Notwithstanding section 56, clause (f), where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement: provided that the applicant has not failed to perform the contract so far as it is binding on him.

Illustrations

(a) A contracts to sell to B for taka 1,000 the good-will of a certain business unconnected with business-premises, and further agrees not to carry on that business in Chittagong. B pays A the taka 1,000 but A carries on the business in Chittagong. The Court cannot compel A to send his customers to B, but B may obtain an injunction restraining A from carrying on the business in Chittagong.

(b) A contracts to sell to B the good-will of a business. A then sets up similar business close by B's shop and solicits his old-customers to deal with him. This is contrary to his implied contract, and B may obtain an injunction to restrain A from soliciting the customers, and from doing any act whereby their good-will may be withdrawn from B.

(c) A contracts with B to sing for twelve months as B's theatre and not to sing in public elsewhere, B cannot obtain specific performance of the contract to sing, but he is entitled to an injunction restraining A from singing at any other place of public entertainment.

(d) B contracts with A that he will serve him faithfully for twelve months as a clerk. A is not entitled to a decree for specific performance of the contract. But he is entitled to an injunction restraining B from serving a rival house as clerk.

(e) A contracts with B that, in consideration of taka 1,000 to be paid to him by B on a day fixed, he will not set up a certain business within a specified distance. B fails to pay the money. A cannot be restrained from carrying on the business within the specified distance.

3.2 CASE LAW(specific relief act)

case law

Section 54- circumstances when perpetual relief is granted

Perpetual relief is granted under section 54.it says down that an injunction may be granted to prevent the breach of an obligation in favor of the applicant. Whether expressly or by implication, provided there exists no measure for ascertaining the actual damage or likely to be caused by threat of the defendants and where such invasion or threat is such that pecuniary compensation would not afford adequate relief

Hossainahmed vs. HD Hussein and brothers 32 DLR (AD) 223

Section 54- grant of perpetual injunction to prevent breach of obligation

provisions of sec 54 of the specific relief act authorize grant of perpetual injunction to prevent the breach of an obligation existing in favor of the applicant whether expressly or by implication the court may grant perpetual injunction also under the said provision when the defendants invade s or threatens to invade the plaintiff s right to or enjoyment of a property

June Ferguson vs. amateur rushed Chowdhury 25 DLR 1.

Section 55

Breach of obligation

Injunction may be issued to prevent breach of obligation

PLD 1955 Lahr, 88: PLR1955 lash 242

Section 55

The wall in question was built from days before the filling of the suit it is right and proper that the order of its demolition if at all by way of mandatory injunction should ordinarily be passed on the conclusion of the suit

Abdul Baric vs. Seagull Islam 20 DLR 501

Section 56

The petitioners having proved their exclusive possession in the suit land degree of perpetual injunction in their favor without a prayer for declaration of title in valid in law

Abdul kidder monody vs. others 47 DLR

Section 56

In a suit for perpetual injunction the plaintiff's shall have to prove the exclusive possession in the land in order to get a degree the court may incidentally enqui237re into the prima facie title of the parties

Mate all crooker vs. another vs. colander Talukdar and another 52 DLR

Section 57

Implied negative covenant when ca39n not be imputed when the positive part 0f the agreements can not be enforced by an injunction the same object can not be achieved by imputing an implied negative covenant in the agreements and enforce it under the provision of section 57 of the act 

Modern talkies vs. chorine cinema 28DLR 414

Chapter IX of injunction generally, section 52, 53

3.3 CASE REFERENCE

civil

The civil injunction - case study in the successful use of temporary restraining against street gangs in Redondo Beach, California

The lawsuit's defendants included 28 gangsters, some with names like "Scrappy," "Monster," and "Li'l Capone." Once a source of terror for neighborhood residents, these gangsters faced jail time for actions as innocuous as littering or stepping onto someone else's property without permission.

As part of a team effort with citizens, city officials, and the local prosecutor's office, the Redondo Beach Police Department used the civil injunction in a successful preemptive strike against gang-related crime. As a result, peace returned to the community, and mothers who once feared taking their children to the park wrote letters of praise and thanks to the police department.

THE REDONDO BEACH EXPERIENCE

In many ways, Redondo Beach typifies the popular conception of Southern California living. Sun bathers, volleyball players, and inline skaters crowd the beach and bike paths. The pier teems with top-quality restaurants and souvenir shops for tourists. The climate typically is neither too cold nor too warm. Well-kept, middle- to upper-middle-class homes abound. To many, Redondo Beach is a very desirable place to live.

Unfortunately, members of the North Side Redondo (NSR) Gang, also known as the Redondo 13, give Redondo Beach high marks too. A turf-oriented street gang currently in its third generation of membership, the NSR has called Redondo Beach home for over 40 years.

While primarily Hispanic, the gang also includes Caucasians, African Americans, and, from time to time, Asians. NSR has a total membership of approximately 180 gangsters, with an active membership of about 40. Members range in age from 14 years old to over 40, with an average age of 24. The gang claims the entire city of Redondo Beach as its turf and has resorted to violence in answer to perceived transgressions by both rivals and innocent residents.

In 1990, the Redondo Beach Police Department petitioned the Los Angeles County District Attorney's Office to declare the NSR a violent street gang under the authority of a section of the California Penal Code known as the Street Terrorist Act (STA). Recognizing the violent nature of the gang, the district attorney granted the department's petition. Afterward, the department served identified gang members with papers notifying them of the enhanced sentences they would receive for convictions under the STA.

Yet, NSR members remained undeterred, and over the years, they became involved in many violent and illegal acts. In 1993, the NSR fought a war with a rival gang that resulted in 3 homicides and 11 other shooting incidents. The war ended when over 100 members of the Redondo Beach Police Department and 120 officers from neighboring jurisdictions served search warrants at 16 locations, leading to the arrest and conviction of several key NSR members. This incident became typical of NSR activity over the years--episodes of extreme violence punctuated by periods of general quiet, usually brought about by heavy and aggressive law enforcement interdiction.

SOLVING THE GANG PROBLEM

In July 1995, the Redondo Beach Police Department formally adopted the philosophy of community-oriented policing. Management encouraged department personnel to search proactively for creative solutions to long-standing problems. As a result, in late 1995 when residents expressed concern about the high level of gang activity in and around Perry Park, the community policing officer assigned to their neighborhood gathered residents, city officials, the city prosecutor, and members of the police department--including gang officers, command staff personnel, and the chief--to discuss the situation.

During the meeting, residents offered anecdotal accounts of intimidation, gunfire, drug dealing, and drunken gatherings at all hours of the night. One after another, mothers told how afraid they were to take their children to the park. Police officers familiar with the NSR knew that residents had a factual basis for their fears. Roughly the geographic center around which a number of NSR members lived, Perry Park was long known as a gathering place for NSR gangsters.

By the end of the meeting, the city prosecutor had formulated a plan of attack. First, he would prosecute to the fullest extent of the law any gang members arrested for crimes in and around Perry Park. Next, he would prevent these offenders from entering the park by making it a condition of their probation. Finally, he would use an approach that had proved moderately successful in curbing gang activity in other jurisdictions: filing a civil injunction against the gang members.

CHAPTER 4

4.1 THE INJUNCTION PROCESS

A civil injunction is a lawsuit that, if granted by the court, requires or limits certain actions by the defendants. In essence, an injunction serves as a protective order for the city.

In this case, the city of Redondo Beach would sue NSR gang members, proving that they were a nuisance and thereby restricting their activity via a court order. Over the next several months, members of the police department's Gang Enforcement Team began the arduous task of proving that a problem existed in Perry Park. To that end, they:

 4.2 SAMPLE CASE

Donald v Ntuli

Case Reference [2010] EWCA Civ 1276
Court Court of Appeal

Judge Lord Neuberger of Abbotsbury MR, Kay LJ, Sedley LJ

Date of Judgment 16 Nov 2010

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Summary

Privacy - Injunctions - Arts 8 and 10 ECHR - Anonymity of parties - Non-disclosure of fact of injunction

FACTS

The Claimant was a member of a boyband in the 1980s. The Claimant had conducted a relationship with the Defendant on and off since 2000. An ex parte on notice application was made for an interim injunction. A superinjunction anonymising the parties and restraining the defendant and third parties from referring to the fact of the injunction was sought and obtained in April 2010. The Judge's order contained a proviso that the Defendant could discuss information about the Claimant already disclosed to family and close friends with those individuals. The Defendant appealed seeking the discharge of the injunction and, in the alternative complaining that the orders for anonymity and non-disclosure of the fact the application had been obtained were unnecessary. The Judge prohibited publication of "any intimate, personal or sexually explicit details about the relationship …
including any facts of a sexual nature." Reference to the fact of the relationship was permitted under the Judge's order. The Defendant contended that publication of non-sexual, non-salacious information about the relationship should not have been restricted and was not core private information. The Claimant cross-appealed that the injunction did not go far enough and ought to include a prohibition on disclosure or communication of the fact of the relationship, subject to the family and close friends proviso.

ISSUE

Whether

(1) the superinjunction should be discharged in its entirety

(2) the additional orders to protect privacy should be made

(3) orders for anonymity of the parties and non-disclosure of the application and injunction were necessary

HELD

Held, dismissing the cross-appeal and the appeal in part:

(1) The substantive injunction remained in force. The argument that the publication of non-core information ought not to be restricted was rejected. The Judge had rightly considered within the intense focus on competing rights the Claimant's past admissions and the Defendant's interest in telling her story but placed a relatively low value on it.

(2) The injunction did not lack clarity. The word "intimate" from the prohibition on disclosure did not have merely sexual connotation but referred to non-sexual but personal information about the relationship that the Claimant was likely to establish was covered by a reasonable expectation of privacy at trial.

(3) There were no grounds for extending the prohibition on disclosure and communication to the fact that a relationship took place. There was no evidence that the relationship was entirely secret. Disclosure of it carried no particularly grave adverse consquence

(4) The orders for non-disclosure of the fact that an injunction had been obtained was unnecessary in view of the terms of the substantive injunction and circumstances of the case. Orders for non-disclosure of the proceedings are essentially case-sensitive. The test is essentially one of necessity.

(5) Anonymity was unnecessary. It would have been possible and appropriate for the Judge to have written a judgment in publishable form. The benefit of not anonymising was removing the risk of misidentification of the parties, although continued anonymity may be justified where identification risked serious consequences for a person's private life.

 CHAPTER 5

 COMMENT

Other than where the protagonists have taken measures to conduct a purely clandestine relationship or revelation will lead to particularly grave consequences, disclosure of the mere fact of a relationship ought to be permitted. The super-injunction elements (i.e. non-disclosure of the fact of the injunction and anonymity of the parties) are essentially case-sensitive issues, with an emphasis on 'necessity' and the production of published judgments wherever possible. Such orders may be superfluous when the privacy issues are appropriately addressed by the terms of the substantive injunction.

CHAPTER 6

ALL IN ONE

An injunction is a court order, issued by a judge, that prohibits an individual, business firm, labor union, or other type of organization from engaging in a specified action, or that requires them to resume an action. An injunction is intended to protect the property rights of an individual or business from being violated. It is not used to punish violations of the law, although it may be used to enforce a breach of contract.

A preliminary injunction may be issued when a lawsuit is initiated to protect property rights while the litigation is in progress. Such an injunction is often issued on a temporary basis without a hearing. Preliminary injunctions are frequently sought in patent infringement cases, where the plaintiff alleging a patent violation obtains a preliminary injunction against the party who is charged with infringing on the plaintiff's patent rights. In such cases a judge may issue a preliminary injunction prohibiting the defendant from manufacturing or distributing the product or products alleged to be in violation of the plaintiff's patent rights. The effect of such an injunction may be to put the competitor out of business, especially if it is a smaller company and the patent suit takes a long time to resolve. Consequently, judges may grant such preliminary injunctions only when there is a reasonable likelihood that the patent infringement claim will be successful.

In trademark infringement cases, courts typically consider four factors before deciding whether or not to grant a preliminary injunction. These include the strength of the plaintiff's case and the overall probability of its success; whether the plaintiff is likely to suffer irreparable harm if the injunction is not granted; whether the plaintiff's injury outweighs the potential harm the injunction would cause the defendant; and the effect of an injunction on the public interest. In addition, courts may consider the likelihood of future infringement—whether the infringement was an isolated case and not likely to occur again in the future. That is, the court may refuse to issue a preliminary injunction on the basis that the defendant is not likely to violate the plaintiff's trademark rights again in the future.

Under the European Treaty Convention, cross-border injunctions may be granted in patent infringement and other intellectual property cases. In one case, a Dutch judge granted an injunction that covered Belgium, the Netherlands, and Luxembourg.

CHAPTER 7

LABOR INJUNCTIONS

In the early 20th century injunctions were frequently used by big business to prevent labor unions from going on strike. The Norris-LaGuardia Act of 1932 limited the ability of federal courts to issue injunctions in labor disputes. The Labor-Management Relations Act of 1947, also known as the Taft-Hartley Act, allowed the president of the United States to seek an injunction to prevent a strike when a labor dispute threatened national health or safety. After issuing an unfair labor-practices complaint, the National Labor Relations Board (NLRB) may seek injunctive relief in federal court to compel a party to either desist or resume an action under Section 10(j) of the National Labor Relations Act.

Since it settled the baseball strike of 1994 with an unfair labor practices charge and an injunction against the major-league owners, the NLRB has used its power to seek injunctive relief to a greater extent. In order to obtain a labor injunction, the NLRB must show that irreparable harm would be caused and that injunctive relief would be "just and proper." The most common situations in which the NLRB has sought an injunction include management interference with a union's organizing campaign, owners subcontracting work to avoid bargaining obligations, owners refusing to recognize an incumbent union, unions using coercion to meet an illegal objective, and the occurrence of mass picketing violence.

CHAPTER 8

 OTHER COMMON USES OF INJUNCTIONS

In the realm of contracts, an injunction may be used to enforce a negative covenant (an agreement not to perform certain acts or services) when there is a breach of contract. For example, a recording company may seek an injunction against a recording artist who is under contract, to prevent the artist from recording for another label or performing in violation of specific articles of the contract.

Preliminary injunctions are also commonly used by the Securities and Exchange Commission (SEC), especially in factually or legally difficult cases and in cases where it can demonstrate "irreparable harm." Many franchise terminations result in litigation alleging wrongful termination of franchise rights, and it is not unusual for plaintiff franchisees to seek a preliminary injunction allowing them to continue to operate as a franchisee until the case is decided.

Sources

1.     internet

2.     books

a)    CPC

b)    specific relief act

3.     Class lecture

submitted by

Md. Rashedul Momenin

GS,BLSDO