(..14 g..)
PREVENTIVE RELIEF OR INJUNCTIONS
TEMPORARY & PERPETUAL[1]
(S. 36 TO 42)
QUESTION BANK
Q.1. Enumerate the various kinds of injunctions and the principles underlying them.
Q.2. State under what circumstances the Court can refuse to grant an Injunction under the Specific Relief Act.
Q.3. Distinguish perpetual injunction and temporary injunction. Give illustrations.
Q.4. What is meant by injunction? Distinguish between temporary and perpetual injunction.
Q.5. What is perpetual injunction? When Court can grant the perpetual injunction?
Q.6. What is injunction? What are all the types of injunction? Write a detailed note on the same.
Q.7. Write a detailed note on ‘temporary’ and ‘perpetual’ injunction.
SHORT NOTES
- Temporary Injunction
- Mandatory Injunction
- Perpetual Injunction
| “Stop Work” |
I. Injunction[2]:-
Halsbury defines ‘injunction’ as a judicial process whereby a party is ordered:-
In other words, it is an order of the Court whereby it restrains:-
- i) the commission, or
- ii) continuance of some wrongful omission.
In the former case, the injunction is called a prohibitory or restrictive injunction; in the latter case, it is called ‘mandatory’. The former, i.e. ‘prohibitory injunction’, is more common than the latter, i.e. mandatory.
II. Preventive Relief:-
Specific relief afforded by means of injunction is called Preventive relief. It is based on the maxim “prevention is better than cure”. An injunction is a form of specific relief the Court grants when pecuniary compensation is inadequate or futile.
The object of granting an injunction is to restrain the doing of an act in order to prevent future or threatening injuries.
This preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual (S. 36).
III. Kinds of Injunctions:-
There are two types of injunctions. Viz.
- Temporary injunction or interim injunction[5].
- Perpetual injunction or permanent injunction.
These injunctions may be Prohibitory or mandatory in nature.
Injunctions
Temporary or Interim Perpetual or Permanent
(Order 39 of CPC) (Ss. 36 to 44 of the Act[6])
Prohibitory Mandatory Prohibitory Mandatory
1) Temporary Injunction:-
A temporary Injunction is also called an ‘interim injunction’. The temporary injunction is that which remains in force for a specified time [i.e. for 10 days, etc.] or until further order of the Court (S. 37). Such injunction can be granted at any stage of the suit and is governed by Order 39 of the Code of Civil Procedure 1908 and not by the Specific Relief Act. The object of a temporary injunction is to maintain the status quo (i.e. the position to keep the property as it is).
2) Perpetual Injunction:-
Which is also called a ‘permanent injunction’. The perpetual injunction is permanent in nature and is provided under S. 36 to 44 of the Specific Relief Act. The perpetual injunction is contained in a decree passed by the Court after a full hearing of the merits of the case. The object of the perpetual injunction is to restore the property to its former state (i.e., as it was before).
Difference between Temporary and Perpetual injunctions:-
a) When Passed?
A Temporary injunction is passed by order during the pendency of the suit.
A Perpetual injunction can be granted only by the decree made at the hearing and upon the merits of the case.
b) How long does it continue?
A Temporary injunction continues only until a specified time or until further order of the Court.
A perpetual injunction finally settles the parties’ mutual rights and permanently directs one party to do or abstain from doing something.
c) Purpose of granting:-
The temporary injunction’s effect and object are to preserve the property in dispute in the status quo; it does not conclude a right.
The effect and object of a Perpetual injunction is to finally give effect to and protect the plaintiff’ right (i.e. to restore the property in an earlier state).
d) Legal Provision:-
Temporary injunctions are regulated by Order 39 (XXXIX) of the Code of Civil Procedure 1908.
Perpetual Injunctions are regulated by S. 38 to 42 of the Specific Relief Act.
IV. Perpetual injunction when granted (S. 38):-
In the following circumstances, a perpetual injunction may be granted to either Plaintiff or Defendant to preserve their right.
1) To Plaintiff:-
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.
Where any obligation arises from the contract, the Court shall be guided by the rules and provisions contained in Chapter II (of the Specific Performance of the Contract)[7].
In Pandian Chemicals Ltd. V. Purnitharalli
(AIR 2017 Mad. 198)
The Court held:- Plaintiff is not ready and willing to perform his part of a contract is not entitled to specific performance of a contract.
2) Defendant:-
When the defendant invades or (threatens to invade) the Plaintiffs right or enjoyment thereto, the Court may grant a Perpetual injunction to the Plaintiff in the following cases, namely-
- a) Where the defendant is a trustee of the property for the Plaintiff.
- b) Where there is no standard for ascertaining the actual damage caused, or likely to be caused, to the Plaintiff by the invasion of his rights.
- c) Where the invasion of the Plaintiff’s right is such that compensation in money would not afford adequate relief and
- d) Where the injunction is necessary to prevent multiplicity of judicial proceedings.
Thus, perpetual injunction is granted at the discretion of the Court.
Illustrations
(a) A lets certain land to B, and B contracts not to dig out sand or gravel. A may sue for an injunction to restrain B from digging in violation of his contract.
(b) A trustee threatens a breach of trust. His co-trustee, if any, should, and the beneficial owner may sue for an injunction to restrain the breach.
(c) The directors of a public company are about to pay a dividend out of capital or borrowed money. Any of the shareholders may sue for an injunction to restrain them[8].
Scope and Object of S. 38-
This section lays down the general principles that govern the grant of perpetual injunction in contracts and torts. This rule only executes the English principles of the Equity Court, which acted in India for many years.
The remedy by way of injunction is based on some principles. The Court should consider:-
- i) Whether the action to be restrained is likely to cause an injury[9].
- ii) Whether damages could compensate for such injury[10], and
iii) Whether the injunction is necessary to prevent the multiplicity of judicial proceedings[11].
Illustration
The inhabitants of a village claim a right of way over A’s land. In a suit against several of them, A obtains a declaratory decree that his land is subject to no such right. Afterwards, each other villagers sues A for obstructing his alleged rights of way over the land. A may sue for an injunction to restrain them.
In Card vs Sime
A professor who delivers or dictates lectures or notes to the students, which is his own literary compositions, is his own property. A is entitled to restrain the student, by injunction, from publishing the notes without his consent.[12].
V. Perpetual injunction when refused[13] (S. 41):-
A perpetual injunction cannot be granted in the following ten cases:-
a) To restrain any person from prosecuting a judicial proceeding[14]:-
To restrain any person from prosecuting a judicial proceeding pending in the court or institution of the suit in which the injunction was sought unless such restraint is necessary to prevent a multiplicity of proceedings.
b) To restrain any person from instituting or prosecuting any proceeding[15]:-
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 from applying to the legislative body[16].
To restrain any person from applying to any legislative body.
(d) To restrain any person from instituting criminal proceedings[17]:-
To restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) To prevent a breach of contract which cannot be specifically enforced[18]:-
To prevent the breach of a contract, the performance of which cannot be specifically enforced;
(f) Difficult in proving a nuisance[19]:-
To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) Plaintiff’s acquiescence[20]:-
To prevent a continuing breach in which the plaintiff has acquiescence.
(h) Equally efficacious remedy available[21]:-
When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of a breach of trust;
In G. Nursing Home Ltd V/s Dr D. Mukharjee[22]
Delhi High Court Held:- that a suit for injunction simpliciter will not lie where an equally efficacious remedy of possession can be obtained. But where the plaintiff-company, running a nursing home, allowed defendant-debt ors to practice their profession in work chambers or cabins of the nursing home and the defendants unauthorisedly entered hospital premises and disrupted the working of the hospital despite termination of their directorship and withdrawal of permission, defendants can very well be restrained using a prohibitory injunction. There is no need for the plaintiff to file a suit for possession.
(i) Conduct of Plaintiff:-
When the conduct of the plaintiff or his agent is such as to disentitle him from the assistance of the Court;
Illustration
A seeks an injunction to restrain his partner B from receiving the partnership debts and effects. It appears that A had improperly possessed himself of the books of the firm and refused access to them. The Court will refuse the injunction.
(j) No personal interest of Plaintiff:-
When the plaintiff has no personal interest in the matter.
VI. Mandatory injunction[23] (S. 39):-
- 39 provides that to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court can enforce. In such cases, the Court may, at its discretion, grant an injunction-
- i) To prevent such a breach, and also.
- ii) To compel the performance of the requisite acts.
Illustrations
(a) A, by a new building, obstructs lights to the access and use of which B has acquired a right under the Indian 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 to obstruct B’s lights.
(b) 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 such a project.
(c) The Court may order all written communications made by B as a patient to A, as medical adviser, to be destroyed[24].
Nature of Mandatory Injunction:-
This relief is available to the breach of any obligation, whether arising out of contract or tort. It may be perpetual or Temporary, though in very rare cases, a Temporary injunction of this nature is issued. An injunction is a command to undo that which has been done or to do a particular act to restore things to their former condition.
Illustration
A, by a new building, obstructs lights to the access and use of which B has acquired a right under the Indian Limitation Act. Part IV. B may obtain an injunction to restrain A from going on with the buildings and pull down so much of them as to obstruct B’s lights.
In this illustration, A is first called upon to restore the place to the position in which it was before the act was done, and then he is restrained when he has so restored it, from doing anything in respect of it which would be a breach of obligation on his part. In this way, this injunction is, in its nature, Prohibitory.
This relief is discretionary in nature. It is the court’s discretionary power, and it needs to be applied cautiously.
In Probhoo V/s Doodh Nath[25]
Facts: The plaintiff instituted the suit very soon after the constructions started being made by the defendant Co-owner on the joint land, costing Rs. 500 only, and the constructions were not asserted by the plaintiff in any manner.
The Court held:- Plaintiff was granted mandatory injunction directing removal of the constructions.
VII. Damages in lieu of or in addition to an injunction (S. 40):-
The Plaintiff in a suit for perpetual injunction under S. 38, or Mandatory injunction under S. 39, may claim damages-
- i) Either in addition to, or
- ii) In substitution of,
Such injunction and the Court may award such damages if it thinks fit[26].
However, no relief for damages shall be granted unless Plaintiff has claimed such relief in his plaint. But where no such damages have been claimed in the plaint, the Court shall allow the Plaintiff to amend the plaint at any stage of the proceeding.[27].
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[1] प्रतिबंधात्मक उपाय, मनाई हुकूम तात्पुरता व कायमचा, [निवारक राहत के माध्यम से मनाही-हुक्म]
[2] न्यायिक प्रक्रिया कि ज्यायोगे पक्षकारांना काहीतरी (अपाय) करण्यापासून परावृत्त राहणास अथवा (योग्य) कृत्य करण्यासाठी आज्ञा दिली जाते [मनाही-हुक्म].
[3] प्रतीबंधात्मक उपाय [कुछ करणे से प्रतीबंध]
[4] कुछ करणे के लिये आज्ञा
[5] तात्पुरता मनाई हुकुम [अस्थायी निषेधाज्ञा या अंतरिम निषेधाज्ञा]
[6] Specific Relief Act
[7] S. 38 (2).
[8] (d) The directors of a fire and life insurance company are about to engage in marine insurance. Any of the shareholders may sue for an injunction to restrain them.
(e) A, an executor through misconduct or insolvency, is bringing the property of the deceased into danger. The court may grant an injunction to restrain him from getting at the assets.
(f) A, a trustee for B, is about to make an important 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.
(g) A makes a settlement (not founded on marriage or other valuable consideration) of an estate on B and his children. A then contracts to sell the estate to C. B or any of his children may sue for an injunction to restrain the sale.
(h) In the course of A’s employment as a vakil, 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.
(i) A is B’s medical advisor. He demands money of B which B declines to pay. A then threatens to make known the effect of B’s communication 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.
(J) A, the owner of two adjoining houses, lets one to B and afterwards lets the other to C. A and C begin to make such alterations in the house let to C so as it will prevent the comfortable enjoyment of the house let to B. B may sue for an injunction to restrain them from doing so.
(k) A lets certain arable lands to B for purposes of husbandry, but without any express contract as to the mode of cultivation. Contrary to the mode of cultivation customary in the district, he threatens to sow the land with seeds injurious thereto and requiring many years to eradicate. A may sue for an injunction to restrain B from sowing the lands in contravention of his implied contract to use them in a husbandry-like manner.
(l) A, B and C are partners, the partnership being determinable at will. A threatens to do an act tending to the destruction of the partnership property. B and C may, without seeking a dissolution of the partnership, sue for an injunction to restrain A from doing the act.
(m) A, B and C are members of an undivided Hindu family. A cuts timber growing on the family property, and threatens to destroy part of the family house and sell some of the family utensils. B and C may sue for an injunction to restrain him.
(n) A, the owner of certain houses in Calcutta, becomes insolvent. B buys them from the official assignee and enters into possession. A persists in trespassing and damaging the houses, and B is thereby compelled, at considerable expense, to employ men to protect the possession. B may sue for an injunction to restrain further acts of trespass.
(o) The inhabitants of a village claim a right of way over A’s land. In a suit against several of them, A obtains a declaratory decree that his land is subject to no such right. Afterwards each of the other villagers sues A for obstructing his alleged rights of way over the land. A may sue for an injunction to restrain them.
(p) A, in an administration suit to which a creditor, B, is not a party, obtains a decree for the administration of C’s assets. B proceeds against C’s estate for his debts. A may sue for an injunction to restrain B.
[9] क्या रोकी जाने वाली कार्रवाई से चोट लगने की संभावना है\ [मनाई हुकुमाने जी कृती थांबावायाची अहि ती झाल्यास नुकसान होईल का?
[10] ते नुकसान आर्थिक स्वरुपात भरपाई करता येन्यासारखे आहे का? [क्या ऐसी चोट की भरपाई, हर्जाने से की जा सकती है।]
[11] ईतर बऱ्याच केसेस टाळण्यासाठी मनाई हुकुम अव्वाश्क आहे का? [क्या न्यायिक कार्यवाही की बहुलता को रोकने के लिए निषेधाज्ञा आवश्यक है।]
[12] In Joao v. Village Panchayat (AIR 2000 Bom. 444).
Court Held– Perpetual injunction can be ordered where, the neighbor of Plaintiff has violated, Plaintiff’s right to light, air etc. by violating Municipal Laws.
[13] नकार दिल्यावर कायमचा हुकूम [शाश्वत निषेधाज्ञा कब नाकारी जाती है।]
[14] कोणत्याही व्यक्तीला न्यायालयीन कार्यवाही करण्यापासून रोखण्यासाठी [किसी भी व्यक्ति को न्यायिक कार्यवाही चलाने से रोकने के लिए।]
[15] कोणत्याही व्यक्तीला कोणतीही कार्यवाही सुरू करण्यापासून किंवा खटला चालवण्यापासून रोखण्यासाठी [किसी भी व्यक्ति को किसी भी कार्यवाही को शुरू करने या मुकदमा चलाने से रोकने के लिए।]
[16] विधान मंडळाकडे अर्ज करण्यापासून रोखण्यासाठी [विधायी निकाय में आवेदन करने से रोकने के लिए।]
[17] कोणत्याही व्यक्तीला फौजदारी कारवाई करण्यास प्रतिबंध करणे [किसी भी व्यक्ति को आपराधिक कार्यवाही करने से रोकना।]
[18] कराराचा भंग रोखण्यासाठी ज्याची विशेषतः अंमलबजावणी केली जाऊ शकत नाही [करार के उल्लंघन को रोकने के लिए जिसे विशेष रूप से लागू नहीं किया जा सकता है।
[19] उपद्रव सिद्ध करणे कठीण [उपद्रव साबित करने में मुश्किल।]
[20] वादी ची मूक संमती [वादी की मूक स्वीकृति]
[21] तितकेच प्रभावी उपाय उपलब्ध [उतना ही कारगर उपाय उपलब्ध]
[22] AIR 2004 Delh. 53.
[23] मनाई हुकूमाव्दारे एखादया व्यक्तीला विषिश्ट गोश्ट करायला भाग पाडणे [अनिवार्य निषेधाज्ञा]
[24] (d) 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 Indian Penal Code (XLV of 1860). The Court may grant an injunction, to restrain the publication, even though it may be shown nor 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) The Court may also order the copies produced by piracy, and the trademarks, statements and communications, therein respectively mentioned to be given up or destroyed.
[25] AIR 1978 All. 178.
[26] S. 40 (1).
[27] S.40 (2).