Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

atish singh (article assistant)     04 June 2010

injunction

we are a joint family.we have a joint family brick manufacturing business.i am the eldest son.since death of 

father,other family members have taken over the business and has stopped giving my family expenses.i have filed a civil partnership suit .recently the court has appointed a receiver .i want injunction on the business. tell me all the ways by which i can get an injunction . also they have levelled false allegations through a petition in the court ,please tell me the ways to defend myself.



Learning

 1 Replies

ADVOCATE SRIDHARABABU (Advocate)     04 June 2010

Regarding injunction in respect to  joint family business it is doubtfull to get unless you establish wastage, siphoning, causing irreparable damage if business continued.

 

Regarding falsity in allegations of your opponents try out following case laws

Supreme court in S.P.CHENGALVARAYA NAIDU V. JAGANNATH AND OTHERS, AIR 1994 SUPREME COURT 853, wherein it is held as follows:-  'The courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.'

 

Observations of the Hon'ble Supreme Court in the case of Gopal Krishnaji Ketkar v. Mahomed Haji latif and Ors. (1968) 3 S.C.R.: Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withhold important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.

 

 

1.       2006 (5) SCC 282 -> The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff : (i) existence of a prima facie case as pleaded, necessitating protection of plaintiff’s rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff’s rights is compared with or weighed against the need for protection of defendant’s rights or likely infringement of defendant’s rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff’s conduct is free from blame and he approaches the court with clean hands.

 

 

1.       2008(11) SCC 1 -> While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the courts is imperative. Contentions raised by the parties must be determined objectively.

 


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register