MOOT MEMORIAL- INJUCTION, Assignments of Law

Download MOOT MEMORIAL- INJUCTION and more Assignments Law in PDF only on Docsity! Roll Number - 2016LJA148 GURU NANAK DEV UNIVERSITY - 2nd MOOT COURT SEMESTER 9 Before THE CIVIL JUDGE SENIOR DIVISION APPLICATION NO. ____ OF 2021 UNDER ORDER XXXIX, RULE 1 AND RULE 2 OF CIVIL PROCEDURE CODE, 1908 BETWEEN PLANTIFF………………………………………………APPLICANT v. DEFENDANT……………………………………………RESPONDENT IN THE MATTER CONCERNING AD-INTERIM INJUNCTION MEMORIAL ON BEHALF OF RESPONDENT TABLE OF CONTENTS 1. LIST OF ABBREVIATIONS………………………………3 2. INDEX OF AUTHORITIES………………………………4 • Cases………………………………………………………………4 • Books and Lexicons………………………………………………5 • Statutes……………………………………………………………5 3. STATEMENT OF JURISDICTION………………………….……6 4. STATEMENT OF FACTS…………………………………….……7 5. ISSUES PRESENTED………………………………………..……8 6. SUMMARY OF ARGUMENTS………………………………….…9 7. ARGUMENTS ADVANCED ………………………………………….10 [1] WHETHER THE APPLICATION IS MAINTAINABLE? [1.1] Definition of Ad-Interim Injunction……………….…………10 [1.2] Prima Facie Case………………………………………….……12 [1.3] Irreparable Injury……………………..………………..……14 [1.4] Balance of (In)convenience……………………………….…16 8. PRAYER…………………………………………………………………18 MEMORIAL ON BEHALF OF RESPONDENT Page of 2 18 • BOOKS USED : • STATUTES USED : S. No. NAME OF BOOK 1. Civil Procedure (CPC) with Limitation Act, 1963,C.K.Takwani Eastern Book Co.(EBC)2019 S.No. STATUTES 1. The Code of Civil Procedure, 1908 2. Specific Relief Act 1963 MEMORIAL ON BEHALF OF RESPONDENT Page of 5 18 STATEMENT OF JURISDICTION The Counsel for the Respondent, the Defendant, hereby humbly submits to this Honourable Court’s Jurisdiction under Section 15 of the Civil Procedure Code, 1908 . 1 Section 15 : Court in which suits to be instituted. - Every suit shall be instituted in the Court of the lowest 1 grade competent to try it. MEMORIAL ON BEHALF OF RESPONDENT Page of 6 18 STATEMENT OF FACTS RELATIONSHIP BETWEEN THE PARTIES The plaintiff, in the present case, is the elder brother of the defendant. He acquired a property and constructed the same. When this event took place, the defendant was 17 years old. Further, the plaintiff permitted the defendant to stay on the 1st floor of the said property. RELATIONSHIP TURNED SOUR After the marriage of the plaintiff, the relations between the two brothers turned sour. The reason behind this turn in the relationship was because of the obstruction caused by the defendant when the plaintiff wanted to construct two toilets on the ground floor and along with that raise construction on the 2nd floor. LEGAL RECOURSE Infuriated by the obstruction caused by the defendant, the plaintiff filed a suit for possession of the 1st floor, declaration and injunction. Along with this suit, he also moved an application under Order XXXIX, Rule 1 and Rule 2 of the Civil Procedure Code, 1908 for ad-interim injunction. THE TWO STAIRCASES The ad-interim injunction is for the removal of the staircase which according to the plaintiff, has been constructed by the defendant in the front of the property without taking the consent of the plaintiff or a sanction of the municipal corporation. The plaintiff alleges that there is a staircase in the backside, which is properly sanctioned and in use. He further states that, he cannot enjoy his property unless the construction by the defendant is removed. MEMORIAL ON BEHALF OF RESPONDENT Page of 7 18 ARGUMENTS ADVANCED ISSUE I : WHETHER THE APPLICATION FOR AD-INTERIM INJUNCTION IS MAINTAINABLE OR NOT ? [1.1] Meaning of Ad-Interim Injunction : 1. It is humbly submitted before the Honourable Court that the application filed by the Plaintiff for the removal of the staircase in front of house through an ad-interim injunction is not maintainable since the Plaintiff in the present case has no prima facie case which is the most important requirement for the grant of an injunction order by the Court, neither he has suffered any irreparable injury and the balance of convenience also swings in favour of the defendant. Further, it is an admitted fact on record that defendant is in the permissive possession of the first floor. Even though he is not owner, yet he is in possession, hence he cannot be removed from possession forcibly except in due course of law, hence as long as he is in possession of the first floor, he is entitled to all the easements attached with the first floor of the suit property. 2. The Black’s Law Dictionary defines Injunction as “a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury.” 2 3. The Cambridge Dictionary defines Injunction as “an official order given by a law court, usually to stop someone from doing something.” 3 Black’s Law Dictionary - Definitions of the Terms and Phrases of American and English Jurisprudence, 2 Ancient and Modern, By HENRY CAMPBELL BLACK, M. A. Cambridge Dictionary 3 MEMORIAL ON BEHALF OF RESPONDENT Page of 10 18 4. An injunction is a judicial process whereby a party is required to do , or to refrain from doing, any particular act . It is a remedy in the form of an order of the court addressed to a particular person that either prohibits him from doing or continuing to do a particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory injunction). 4 5. The present application is that of an ad-interim injunction which is basically a stage of the temporary injunction. A temporary injunction, may as it very often does, consists of two stages, one granted without finally disposing of the application for injunction to operate immediately till the disposal of the said application and the other granted while finally disposing of the main application to ensure generally till the disposal of the suit. While the former is generally classed as “ad interim injunction”, the latter is generally called “temporary injunction ”. 5 6. Before granting the injunction as an equitable relief, the Court has to satisfy itself regarding the fulfilment of three essential factors. These factors, known as the “three pillars”, are the foundation on which every order of injunction rests. Apart from this, it is also referred to as the “triple test” for the grant of interim injunction. These factors are as follows : (i) Whether the plaintiff has a prima facie case ? (ii) Whether the plaintiff would suffer irreparable injury if his prayer for temporary injunction is not granted? (iii) Whether the balance of (in)convenience is in favour of the plaintiff? 7. In Dorab Cawasji Warden vs. Coomi Sorab Warden and Ors. , the Honourable 6 Supreme Court of India laid down guidelines to be followed while granting injunctions. The guidelines are as follow : Halsbury's Laws of England (4th Edn.) Vol. 24, para 9014 Jagjit Singh Khanna vs Dr. Rakhal Das Mullick And Anr., AIR 1988 Cal 955 1990 AIR 867 6 MEMORIAL ON BEHALF OF RESPONDENT Page of 11 18 (i) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (ii) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (iii) The balance of convenience is in favour of the one seeking such relief. [1.2] Prima Facie Case : 1. The expression "prima facie" means at the first sight or on the first appearance or on the face of it, or so far as it can be judged from the first disclosure. Prima facie case means that evidence brought on record would reasonably allow the conclusion that the plaintiff seeks. The prima facie case would mean that a case which has proceeded upon sufficient proof to that stage where it would support finding if evidence to contrary is disregarded. 7 2. It is humbly submitted before the Honourable Court that the plaintiff does not have a prima facie case, which is a condition precedent for the grant of the equitable relief of injunction that he is asking for. The reason for this is that the plaintiff filed for an ad- interim injunction for the removal of the staircase built by the defendant only when he filed a suit for possession and declaration. He instituted this suit after the alleged obstruction caused by the defendant. 3. It is further submitted that the plaintiff could have objected when the construction of the front staircase was taking place or approached the authorities at that time. Rather he stayed quiet at that time and only asked for its demolition when he brought a suit for possession and declaration. He has alleged that the defendant did not take his consent for the construction but from the facts we can clearly infer that the Plaintiff gave his implied consent by refraining himself from taking any action at the time of the construction of the staircase by the defendant. See Black’s Law Dictionary 7 MEMORIAL ON BEHALF OF RESPONDENT Page of 12 18 2. It is humbly submitted before the Honourable Court that the second ingredient for the grant of injunction is that there should be an irreparable loss. In the present case, there is no such injury which the plaintiff will have to suffer. However, if the staircase at front is removed, it will cause irreparable loss and injury to defendant rather than plaintiff as it would cause inconvenience and monetary loss to the defendant.. The reason for this being that it will be a very costly affair to defendant for reconstruction of staircase if the suit of the plaintiff in end fails. On the other hand, the plaintiff would not suffer any kind of irreparable injury, if during the pendency of the suit the said staircase stays intact. 3. It is further submitted that notice of demolition has not been received from municipal corporation. Hence, apprehension of the plaintiff is without any foundation that no permission can be granted for developing the property unless the unauthorised construction is removed. 4. It is further submitted that a party should come to the court only after it has exhausted all the remedies available to him. When the plaintiff became aware of the construction of the first staircase he should have approached the municipal corporation for seeking the remedy of demolition which he is currently asking from the Court. The municipal corporations have their legalisations granting them powers to determine whether any contravention has been made or not. Hence, it is the right of the municipal corporation to demolish unauthorised construction, if any, after the due inspection by the municipal corporation commissioner. 5. In Mathew Philips vs P.O. Koshy , His Lordship G. K. Govinda Bhat, J.of the 13 Karnataka High Court held that “The City of Bangalore Municipal Corporation Act, 1949, is a self-contained Code, which provides a remedy for any contravention of its provisions or the bye-laws made thereunder. It is for the appropriate authority constituted under the Act to determine, whether or not a licensee of a building has contravened the terms and conditions of his licence. Prima facie, I am not satisfied that AIR 1966 Kant 74 13 MEMORIAL ON BEHALF OF RESPONDENT Page of 15 18 any legal right of the plaintiff has been infringed or that he has any locus standi to maintain the suit. I do not wish to prejudice the final result of his suit by expressing any final opinion in the matter. The existence of a doubt as to the right of the plaintiff is sufficient to refuse the application for a temporary injunction.” 6. In Dr. K. Panduranga Nayak vs Smt. Jayashree , the Karnataka High Court held that 14 “The injunction sought for in the instant suit is that the Corporation Commissioner should be restrained from regularising these deviations. Such a relief is wholly unthinkable as rightly observed by the trial Court. Certain amount of discretion vests in the Commissioner and it is for him to take appropriate action as he deems fit. If the plaintiff does not sustain injury by such deviation then the Civil Court cannot grant injunction either prohibitory or mandatory as there is provision for approaching the Commissioner complaining of such a deviation.” [1.4] Balance of (In)convenience 1. In Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh , 15 the Orissa High Court held that, ‘Balance of convenience’ means the comparative mischief or inconvenience to the parties. The inconvenience to the plaintiff, if temporary injunction is refused, would be balanced and compared with that to the defendant if it is granted. If the scale of inconvenience leans to the side of the plaintiff, then interlocutory injunction alone should be granted. 2. Balance of convenience as under Halsbury's Laws of England - Unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the AIR 1990 Kant 23614 Supra 12 15 MEMORIAL ON BEHALF OF RESPONDENT Page of 16 18 balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. 16 3. It is humbly submitted before the Honourable Court that granting of the interim injunction will cause greater inconvenience to the defendant than the plaintiff.the defendant has used his money to build the front staircase to which the plaintiff impliedly consented by not objecting it at the time of the construction and also not approaching the municipal authorities. Granting of the interim construction will lead to demolition of the staircase. If at trial the suit concludes in favour of the defendant then reconstruction of the staircase will be a costly affair for the defendant. 4. It is further submitted that the plaintiff has filed for the demolition of the staircase out of malice. The defendant has been peacefully using the staircase continuously without any interference. It is only the plaintiff who has obstructed his peaceful enjoyment in order to get back at the defendant for the obstruction that he cause when the plaintiff tried to raise construction. Hence, balance of convenience swings in favour of the defendant. 5. In American Cyanamid Co. v. Ethicon Ltd. , Lord Diplock observed that “The object 17 of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where "the balance of convenience" lies.” Halsbury's Laws of England (Fourth Edition Reissue, 1991, Volume 24).16 1975 (AC) 396 17 MEMORIAL ON BEHALF OF RESPONDENT Page of 17 18