Introduction

Injunctions are covered under chapter VII and chapter VIII in Part III of Preventive Relief of ‘The Specific Relief Act, 1963 from section number 36 to 42 and in order XXXIX, Rules of the Code of Civil Procedure. Injuction is a wide term, and many definitions have been given. The injunction definition in law is a legal remedy imposed by the court in civil proceedings. This note highlights the provisions related to injuctions in ‘The Specific Relief Act, 1963’.

* Preventive Relief how granted : Section 36 of ‘The Specific Relief Act, 1963’ provides, “Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual”.

* The term “injuction” has been the subject of various attempts of definition. As defined by Joyce, “An order remedial, the general purpose of which is to restrain the commission or continuance of some wrongful act of the party informed.”

* In Burney injunction has been defined to be a judicial process, by which one who has invaded or is threatening to invade the rights, legal or equitable, of another is restrained from continuing or commencing such wrongful act.”

* The definition which clearly includes both is given by Lord Halsbury. According to him “An injunction is a judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing”.

* Injunctions acts in personam. It does not run with property.

* An injunction may be issued for and against individuals, public bodies or even the State.

* Disobedience of an injuction is punishable as contempt of court.

There are three characteristics of an injunction :

1) It is a judicial process.

2) The relief obtained thereby is a restraint or prevention and,

3) The act prevented or restrained is a wrongful act.

* The granting of the relief of injunction is purely discretionary and the plaintiff cannot claim it as of right. The relief has to be granted by the court according to sound principles. While exercising its discretionary powers the court must keep in mind the well-settled principles of justice and fair play. (Executive committee Vaishya Degree College Shamli v. Lakshmi Narain…..SC, 1976).

* An injunction will not be issued,

i) Where damages are the appropriate remedy.

ii) Where injunction is not the appropriate relief.

iii) Where the plaintiff is not entitled to for, on account of his conduct.

iv) Where the contract cannot be specifically enforced.

v) Where the injunction would operate inequitable.

Kinds of Injunction

Section 36 : Preventive relief how granted

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

Injunctions are either temporary (interlocutory) or perpetual. They are defined in section 37.

Section 37 : Temporary and perpetual(permanent) injunctions

(1) Temporary injunctions are such as are to continue until a specific time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.

(2) 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 could be contrary to the rights of the plaintiff.

* A Temporary injunction is an interim(meantime, not permanent) relief which safeguards the subject-matter in its existing condition while the issue is in the suit or proceeding. A temporary injunction stays in force for a prescribed time or till the courts deem fit, or till the further order is passed by the court. Whereas a Permanent injunction is made at the time of final judgement and remains in force for a long time.

* A Temporary injunction is an order of the court whereas a Permanent injunction is a decree.

* Code of Civil Procedure regulates Temporary injunction whereas Permanent injunction is regulated by the Specific Relief Act, 1963.

* A Temporary injunction since provisional, can be reversed by court granting it. Whereas a Permanent injunction is irrevocable by the court who passes the order. But it may be set aside by appellate or higher courts.

Cases in which temporary injunction may be granted :

A temporay injunction may be granted in the following cases :

I) For protection of interest in property in following cases :

i) If the property in dispute in a suit is in danger of being wasted or damaged, or transfer ownership by any party to the suit.

ii) When the defendand threatens, or intends to remove or dispose of his property with the intention to defraud creditors.

iii) If the defendand threatens to dispossess the plaintiff or cause injury to the plaintiff in relation to any property in dispute in suit.

II) Injunction to restrain repetition or continuance of breach of contract or other injury of any kind either before or after judgement, the plaintiff may apply to the court for a temporary injunction.

Section 38 : Perpetual injunction when granted :

(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (Chapter II is related to specific performance of contract)

(3) When the defendant invades or threatens to invade the plaintiff’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 of 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 compensation in money would not afford adequate relief;

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

Requirements for applicability of this section are,

i) there must be legal right express or implied in favour of the applicant.

ii) such a right must be violated or there should be a threatened invasion.

iii) such a right should be an existing one.

iv) the case should be fit for the exercise of court’s discretion.

v) it should not fall within the restraining provisions contained in or referred to in section 41 (which is related to ‘injunctions when refused’).

‘Obligation’ word has been used in a wide sense and it may arise from Contract, Trust, Tort, or Any other legal obligation.

As per section 38(2) a permanent injunction will be granted to prevent breach of contract only in those cases where the contract is capable of specific performance and it is again made clear in section 41(e).

Kishan Lal v. Radhye Shyam, it was held that, an injunction cannot be issued in favour of a trespasser against the true owner.

In Municipal Board v. Abdul Hammeed where the plaintiff fails to establish his legal right to the property or his legal right to continue in possession, he could not be granted perpetual injunction against the owner or the manager of the property.

Some illustrations where perpetual injunction can be granted :

1. A lets certain lands to B and B contracts not to dig sand. A may sue for an injunction to restrain B from digging in violation of his contract.

2. A, a trustee for B, is about to make an imprudent sale of a small part of the trust-property. B may sue for an injunction to restrain the sale, even though compensation in money would have afforded him adequate relief.

3. In the course of A’s employment as an advocate, certain papers belonging to his client, B, come into his possession. A threatens to make these papers public, or to communicate their contents to a stranger. B may sue for an injunction to restrain A from so doing.

4. A pollutes the air with smoke so as to interfere materially with the physical comfort of B and C, who carry on business in a neighbouring house. B and C may sue for an injunction to restrain the pollution.

5. A infringes B’s patent. If the Court is satisfied that the patent is valid and has been infringed, B may obtain an injunction to restrain the infringement.

Section 39 : Mandatory injunctions :

When, to prevent the breach 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.

The injunctions which command the defendant to do something is termed as ‘Mandatory Injunction’.

Salmond defines mandatory injunction as, “an order requiring the defendant to do a positive act for the purpose of putting an end to a wrongful state of things created by him, or otherwise in fulfilment of the legal obligations”.

Illustration (a) :  A, by new buildings, obstructs lights to the access 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.

Illustration (b) : A is B’s medical adviser. He demands money of B which B declines to pay. A then threatens to make known the effect of B’s communications to him as a patient. This is contrary to A’s duty, and B may sue for an injunction to restrain him from so doing. The Court may also order all written communication made by B, as patient, to A, as medical adviser, to be destroyed.

Illustration (c) : A builds a house with eaves projecting over B’s land.      B may sue for an injunction to pull down so much of the eaves as so project.

As held in Lakshi v. Tara, two elements must be taken into consideration while granting mandatory injunction. Firstly, the Court has to determine what acts are necessary in order to prevent a breach of obligation and secondly, the requisite acts must be such as the Court is capable of enforcing.

For example, in illustration a, pulling down of a building. In illustration b, destruction of written communication. In illustration c, pulling down of eaves.

Difference between permanent and mandatory injunction : Permanent injunctions are granted after the court has made a final determination in the case. They prohibit the defendant from continuing a particular action or behavior. Whreas, Mandatory injunctions require the defendant to carry out a particular action. They are often granted in cases of breach of contract, where the plaintiff requires the defendant to fulfill their contractual obligations.

Mandatory injunctions however, will not be granted in following cases :

i) Where compensation in terms of money would be an adequate relief’

ii) Where the balance of convenience is in favour of the defendant.

iii) Where the plaintiff id guilty of allowing the obstructions to be completed before coming to the court.

iv) Where it is desired to create a new state of thing. Mandatory injunctions are granted to restore status quo.

Section 41: Injunction when refused :

An injunction cannot be granted-

(a) to restrain any person from prosecuting 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 restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(c) to restrain any person from applying to any legislative body;

(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;

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

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

(g) to prevent a continuing breach in which the plaintiff has acquiesced;

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

(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;

(j) when the plaintiff has no personal interest in the matter.

Damages in lieu of or in addition to Injunction. (Sec. 40)

The section provides that, the plaintiff in a suit for perpetual injunction under section 38 or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction, and court may, if it thinks fit, award such damages. The plaintiff has to specifically include in his plaint a claim for damages also. If he has not done so, he may seek permission of the court for the amendment of his pleading. But where a suit, in which damages were not claimed, is dismissed, a subsequent separate suit for damages would not lie.