15/04/2020
ہدایتی یا حکمی دادرسی سے کیا مراد ہے ؟ قانون میں اس کی کیا تعریف اور اہمیت ہے ؟ ہدایتی دادرسی حاصل کرنے کی کیا ضروریات ہیں اور اس کی کتنی اقسام ہیں ؟ مکمل معلوماتی پوسٹ بمعہ اہم متعلقہ قانونی اصطلاحات
🔴 INJUNCTIVE RELIEF
Injunctive relief, also known as an “injunction,” is a legal remedy that may be sought in a civil lawsuit, in addition to, or in place of, monetary damages. Rather than offering money as payment for a wrong in a civil action, injunctive relief is a court order for the defendant to stop a specified act or behavior. To explore this concept, consider the injunctive relief definition.
🔵Definition of Injunctive Relief
👉Noun 1. A court order requiring a person or entity to do, or to refrain from doing, a specified act.
👉Origin 1520-1530 Late Latin injunctiōn-
🔵What is Injunctive Relief
If someone wants another person or entity to stop doing something, he may file a civil lawsuit requesting injunctive relief. A hearing will be held during which both parties will make their case before a judge. If injunctive relief is granted, the court issues an order prohibiting a specified act or behavior. Generally, injunctions are sought, and awarded, when a monetary award cannot compensate for the wrong.
🔵For example:
Bob and Lisa have a valuable collection of art. They are divorcing, and cannot come to an agreement as to who gets the collection. Lisa advises Bob she is planning to move to another state, and take “her” art collection with her. Bob may petition the court for an injunction prohibiting Lisa from taking the art out of state before a judgment on their divorce is made by the court.
🔵Requirements for Injunction Relief
In order for a court to issue an injunction, certain legal requirements must be met. Regardless of the area of law in dispute, the decision whether to grant an injunction is generally based on balancing four specific factors:
1. Whether there is a reasonable likelihood that the lawsuit will be a success, based on the merits of the case;
2. Whether the plaintiff will suffer irreparable harm if the injunction is not granted;
3. Whether the balance of hardships tip in the plaintiff’s favor; (in order words, the plaintiff must show that without the injunction, the damages he will suffer will far outweigh the damages that the defendant will suffer if the injunction is issued.)
4. The injunction will have a favorable impact on the interests of the public
When considering the injunction, the court will look at all facts of the case, including hearing arguments from both the plaintiff and the defendant.
🔵Types of Injunctive Relief
In the legal process, different types of injunction may be issued at different stages in the case. The primary difference in types of injunctive relief is the degree of permanency. A judge who is reluctant to issue a permanent injunction may be willing to issue a temporary or preliminary injunction, maintaining the status quo, while giving the court an opportunity to hear the rest of the case.
The three types of injunctive relief are the temporary restraining order, preliminary injunction, and permanent injunction.
🔵Temporary Restraining Order
A temporary restraining order is an emergency injunction that helps ensure the individual requesting the injunctive relief is protected from the actions of the other party. A temporary restraining order is an ex parte proceeding, which means that the request for restraining order is made without the other party’s knowledge, and it is issued, or denied, by the judge without a hearing. Because, by nature, ex parte proceedings are one-sided, temporary restraining orders are very temporary, usually lasting only 10 days or so.
At the time this temporary order is issued, a hearing is scheduled to allow both parties to present their case for or against the injunction. It is at this hearing that the judge with determine whether the injunctive should be extended, or even made permanent.
🔵For example:
Matt inherited his parents’ home five years ago, and has leased it to a nice family. The home, built in the 1950s, sits on a large lot, and has a number of large shade trees, both in front and back. Matt receives a letter from the city that, as part of a plan to widen the roads in the neighborhood, they will be cutting down one of those majestic trees, and the work is to be done within a week.
Matt is outraged, and his attempts to make the city understand that he can’t just replace a century-old tree fall on deaf ears. Matt is desperate to stop the tree-cutting, so he files an ex parte request for temporary restraining order to prevent the tree carnage until the matter can be properly resolved.
Because the damage done by cutting down the tree could not be undone, or properly recompensed, there is a good chance the judge will grant a temporary restraining order, and schedule a hearing on the matter to be held as quickly as possible.
🔵Preliminary Injunctive Relief
Preliminary injunctive relief provides protection similar to a temporary restraining order, but, unlike an ex parte temporary restraining order, the matter must be heard in court. Preliminary injunctive relief commonly stops the specified action until the matter has been settled in court. In issuing a preliminary injunction, the court does not make a determination on the merits of the case, but seeks to prevent one party from suffering irreparable loss while the matter is in litigation.
It is not uncommon for the court, when issuing a preliminary injunction, to require the party requesting the injunction to post a bond to ensure the other party is compensated in the event it is later determined that the injunction is not necessary or proper.
🔵Permanent Injunctive Relief
Permanent injunctive relief refers to a temporary injunction that is later made part of the final judgment in a civil lawsuit. In such a case, the injunction becomes permanent, and is effective for the life of the enjoined party, unless a modification is sought from the court at some point in the future.
🔵For example:
Matt, who was successful in obtaining a temporary restraining order preventing the city from cutting down a shade tree, must make his case against the city’s plan as it applies to his property. Matt discovers his parents’ home has historical significance, and petitions to have the property deemed a historical landmark.
When his request is granted, the home becoming subject to the regulations governing the upkeep and care of historical landmarks in the area, the court orders the temporary injunction made permanent. Such permanent injunctive relief would mean the city would have to re-design their plans to skirt the property, and its elder trees.
🔵Court Considers Injunction in Sweet Briar College Case
In March of 2015, the leaders of Sweet Briar College, a rural Virginia women’s college announced that the institution would be permanently closed down due to insurmountable financial difficulties. Students, alumni, and community members were outraged at the decision to close the college, and believed that the financial challenges could be overcome.
Advocates for keeping Sweet Briar open hired an attorney, and filed a lawsuit claiming that the college leaders had violated state law by failing to maintain operation of the college as they should. These advocates asked for an injunction to prohibit the college from closing its doors. The injunction was denied by the Circuit Court judge, who said that, because the board governing the college is a corporation, Virginia’s laws do not give the court authority to stop the closure.
The matter was appealed to the Virginia Supreme Court, which overturned the Circuit Court’s decision, saying that Sweet Briar is actually a trustee of a trust created through a will, which prohibits sale of the property. As such, the corporation could be considered a trust, for which the lower court might consider issuing an injunction stopping the school’s closure.
The Virginia Supreme Court ruling does not actually grant the injunction the Sweet Briar’s advocates were seeking, but returned the matter to the lower court for reconsideration. Whether that court provides injunctive relief to keep the college from closing, it would likely be a very temporary fix, as the college is seen to have a great hill to climb. At the time of this decision, in June 2015, enrollment at the college had dropped to fewer than 200 students, and the college did not accept new freshman registrations for the next school year.
👉Related Legal Terms and Issues
▪ Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
▪ Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
▪ Enjoin – To prohibit someone from performing a specified act, by issuance of an injunction.
▪ Ex Parte – An action in a legal proceeding brought about by one party, without the participation or presence of the opposition.
▪ Monetary Damages – Money ordered by the court to be paid to an individual or entity as compensation for injury or loss caused by the wrongful conduct of another party.
▪ Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
