ANJUMAN ISLAM BARRISTER A R ANTULAY COLLEGE OF LAW

STUDENT NAME:- KARUNA DURGESH SHIRDHANKAR

ROLL NO. 50

DIVISION :-A

[Link]

PROF. NAME: AAFREEN SHAIKH

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List of abbreviations used:

1. ex debito justitiae- means to do justice between parties, or to correct legal

wrongs without precedent.

2. ad interim orders-

3. Ubijus ibi remediam

4. Aequitas sequitur legem

5. Ex turpi causa non oritur actio

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List of Cases Referred:
1. L.D. Mestone School vs. Kashi Nath Mishra (1951)

2. Pepsi Foods vs Jai Drinks (P) Ltd. on 4 March, 1996

3. Interkardio Pvt. Ltd. vs. Gyrus Group PLC

4. Inox Leisure Limited v. PVR Limited (2020)

5. Kishore Samrite v. State of Uttar Pradesh : (2013) 2 SCC 398

6. Jayant Nath v. Saligram Ltd. between the two. :- (2021) SCC Online Del 561

7. Overnite Express Limited vs Delhi Metro Rail Corporation

8. Lalbhai Dalpatbhai & Co. vs Chittaranjan Chandulal Pandya on 14 April,

1965

9. Ram Kishun v. Jamuna Prasad, (1951) 6 DLR 22 (Pat)

[Link] v. Silvaraj, (1987) Supp SCC 161

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 INDEX

SR NO. PARTICULARS PAGE NO.

1. Introduction of Injuction 5 to 7

2. Meaning and definition of Injuction 8 to 8

3. Essential Elements and Illustration of Injuctions 9 to 17

4. Case Laws 18 to 22

5. Conclusion 23 to 24

6. References 25 to 25

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 Introduction of Injuction:

(Sections 36-37)

An injunction is a remedy granted by the court that prohibits the commission of a wrong
threatened or the continuance of a wrongful course of action already begun.

If a party fails to comply with an injunction granted by a court, then the party could face
criminal or civil penalties or contempt of court.

For example:-

The law of injection has been provided for by the specific Relief Act, 1963 and is also regulated
by the code of Civil Procedure, 1908 in India.

A hearing must be held to obtain an injunction. In emergencies, a court can issue a temporary
restraining order that prohibits or requires action without notice to the non-moving party.
These emergency orders are much more limited in duration than injunctions, which require
notice. To obtain an injunction, the Court will require the moving party to give security to
safeguard against a wrongful injunction being entered. This security can be paid into the
Court in cash, or the moving party can obtain a bond or some other form of financial security
to protect the non-moving party. A permanent injunction is typically only entered after a trial
on the merits.

Need of Injuctions:-

When irreparable damage is suffered by an individual from the actions of other individual and
the same cannot be remedied through any other means, there is a need for injections in order
to stop that other individual from doing those certain actions.

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Disobedience of an injunction is punishable as contempt of court.

 It is used as a preventive measure by restricting the one who creates a nuisance for
others.

 It can only be issued against defendant and not a stranger to the case or third party as
has been held in the case of L.D. Mestone School vs. kashi Nath (1951)

Courts will generally not issue injunctions in cases where only money is at issue. Courts take
the view that money damages can be awarded after a full trial on the merits. Injunctions are
used only to prevent irreparable harm or “harm which cannot be compensated for through
damages upon resolution of the underlying action.

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Generally speaking,

There are two types of injections under Act as mentioned below:

Types of Injuctions

Temporary Injunctions Perpetual Injunction

The Specific Relief Act of 1963, an Act to define and amend the law relating to certain
kinds of specific relief, includes sections on injunctions:

Section 37 Temporary and perpetual injunctions

Section 38: When a perpetual injunction is granted

Section 39: Mandatory injunctions

Section 40: Damages in lieu of, or in addition to, injunction

Section 41: Grounds for refusal to grant injuctions

Section 42: Injunction to perform negative agreement

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 Meaning and Definition of the Injuction

Definition.-

An injunction is a specific order of the court forbidding the commission of a wrong

threatened or the continuance of a wrongful course of action already begun, or in some
cases, when it is called mandatory injunction commanding active restitution of the
former state of things.

 Barney's Encyclopaedia of the law of England.- It is defined as 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.

 Lord Halsbury.-

An injunction is a judicial process whereby a party is ordered to refrain from doing or

to do a particular act or thing.

Story says.-

If one were disposed to be scrupulously critical on such a subject, he might

object to the apparent contract between justice in the first part of the sentence
and equity and good conscience in the latter. This truth is that in this connection
the words have the same identical meaning.

 Joyce.-

"An order remedial, the general purpose of which is to restrain the commission or
continuance of some wrongful act of the party informed."

Injunction acts in personal. It does not run with the property.

For example:-.

A, plaintiff secures an injunction against B forbidding him to erect a wall. A sells the
property to C. The sale does carry the injunction with the property.

An injunction may be issued for and against individuals, public bodies or even the state.
Disobedience of an injunction is punishable as contempt of court.

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 Essential elements and Illustrations of Injuctions

Courts will generally not issue injunctions in cases where only money is at issue. Courts take
the view that money damages can be awarded after a full trial on the merits. Injunctions are
used only to prevent irreparable harm or “harm which cannot be compensated for through
damages upon resolution of the underlying action. ”Coates v. Heat Wagons, Inc., 942 N.E.2d
905, 912 (Ind. Ct. App. 2011).

Even when a legal remedy is possible, the trial court should award injunctive relief “where a
legal remedy will be inadequate because it provides incomplete relief or relief that is
inefficient to the ends of justice and its prompt administration.” Id. In other words, injunctive
relief is proper when it is “more practical, efficient, or adequate than that afforded by law.
”Barlow v. Spies, 744 N.E.2d 1, 6 (Ind. Ct. App.

Characteristics of Injuction:-

1 It is a judicial process,

2 the relief obtained thereby is a restraint or prevention, and

3 the act prevented or restrained is unlawful

Injunction will not be Issued in following cases:-

1. Where damages are the appropriate relief,

2. Where injunction is not the appropriate relief,

3. Where the plaintiff is not entitled to an injunction on account of his conduct.

4. Where contract cannot be specifically enforced.

5. Where injunction would operate inequitably.

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Section 36. Preventive relief how granted.-

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

perpetual.

What is preventive relief.-

Preventive relief is said to be such a relief by which a person is prevented to do an act,

which he is not validly liable to do.

For example:- A is constructing a wall in B's land. At the suit of B by providing him
preventive relief A can be prohibited to do so because A is not legally liable to do so.
Thus when the court prevents a party from doing that which he is under an obligation
not to do it is called preventive relief. Such relief is usually granted to prevent breach
of contract or the violation of right arising otherwise than by contract.

The object of issuing an injunction, it should be noted is usually preventive. Through

preventive injunction, a party is ordered to restrain from doing a wrongful act or thing
which he is under an obligation not to do.

Executive Committee of Vaishya Degree College, Shamli v. Lakshmi

Narain, MANU/SC/0052/1979 : AIR 1976 SC 888:

 The relief of injunction cannot be granted or obtained as of right. The granting

of relief of injunction is discretionary.

 The relief has to be granted by the court according to sound legal principles and
ex debilo justitiae.

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Section 37. Temporary and perpetual injunction.

(1) Temporary injunctions are such as are to continue until a specified 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 (5 of 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 would be contrary to the
rights of the plaintiff.

Temporary or interlocutory injunction are to continue temporarily either until a

specified time or until further order of the court. It is only provisional in nature.

Ram Kishun v. Jamuna Prasad, (1951) 6 DLR 22 (Pat): There may be an order to
preserve the property until the final hearing of the case. The object may be to maintain
status quo. So that the alleged harm is avoided, which could otherwise occur until the
case is finally disposed of by the court on merits.

Bruce v. Silvaraj, (1987) Supp SCC 161: A person filing a suit for injunction can
succeed only when he is in possession of the property. If he is not in possession of the
property, or adverse possession has not been confirmed an injunction cannot be issued
in his favour.

Kallappa and Lunda Ram v. Shivappa Aparaj, MANU/KA/0042/1995 : AIR 1995

Kant 238 (243): Where the plaintiff is in possession of the property and the possession
is not illegal and that there is no evidence that the possession before the suit has been
obtained by unfair means, injunction, without declaration can be issued.

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 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 arise from contract, the court shall be guided by the rules
and provisions contained in chapter II.

(3) when the defendant invades or threaten 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 exist 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.
Illustration:-

1. 1. A lets certain land to B, and B contracts not to dig sand or gravel there-out. A may
sue for injunction to restrain B from digging in violation of his contract.
2. The director 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.
3. A, B and C 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.
Sunil Kumar v. Ram Prakash, MANU/SC/0521/1988 : AIR 1988 SC 576:
The Supreme Court observed that a suit for permanent injunction by a coparcener
against the father for restraining him from alienating the house property belonging to
the joint Hindu family for legal necessity was not maintainable because the coparceners
has got the remedy challenging the sale and getting it set aside in a suit subsequent to
the completion of the sale.

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 Mandatory injunctions
Section 39 of the Special Relief Act, 1963 deals with the Mandatory Injunction . The
section doesn't clearly define a mandatory injunction but deals with the grant of a
mandatory injunction.

The section says that in order to prevent the breach of an obligation, the court can compel
the performance of certain actions at its discretion, which it is capable of enforcing and
can issue injunctions for the infringement complained of. The principle of mandatory inj
unction is used to grant final relief and not interim reliefs, like in exceptional or exemplary
cases like saving life, etc. There are essentially two conditions requested for mandatory
injunctions:

(a) the defendant must be obliged to perform an act and any such breach of the obliged
act must be claimed by the plaintiff;

(b) the reliefs, as asked for, must be enforceable by the court. The principle says that
the defendant must do a positive act in order to restore the wrongful act committed by
him.
Illustration:-

1. 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.

2. A threatens to publish statements concerning B which would be punishable under chapter

XXI of Indian Penal Code, 1860. The court may grant an injunction to restrain the
publication, even though it may be shown not be injurious to restrain the publication.

3. A is B's medical advisor. He demands money of B which B declines to pay. A then

threatens to make known the effects of B's communications to him as a patient. B may sue
for an injunction to restrain him from so doing. The court may also order A's letter to be
destroyed.

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 In Oorab Cawasji Warden v. Coomi Sorab Warden (1990), the Supreme Court held that:

1. The complainant must present a strong case in the court and it should be of a level
higher than that of the prima facie case;

2. The plaintiff must make it clear that the grant of a mandatory injuction is obligatory to
prevent irreparable damage or serious injury which cannot be compensated in terms of
money and,

3. The balance of convenience should also be in favour of the complainant as against the
defendant.

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 Damages in lieu of, or in addition to, injunction

Section 40 of the Specific Relief Act, 1963, specifically talks about the damages or
compensation that can be given by the courts in lieu of or in addition to the injunction.
The Section states that:

(1) In a claim for a perpetual injunction pursuant to Section 38 or for a mandatory

injunction pursuant to Section 39, the plaintiff may claim damages in addition to
or in substitution for such injunction, and the court may, if it considers it
appropriate, award such damages.

(2) No compensation under this provision shall be granted unless the claimant
requests such relief in the plaint. Provided that where no such damages have been
asserted in the plaint, the court shall, at any point of the trial, which may be just
and fair for that argument, allow the plaintiff to amend the plaint.

(3) The dismissal of a claim to avoid the breach of a contract existing in favor of the
plaintiff shall preclude his right to sue for damages for such infringement.

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 Grounds for refusal to grant injuctions

Section 41 of the Specific Relief Act, 1963, mentions those cases wherein the Court
cannot grant an injunction. An injunction cannot be granted in the following cases:

 To stop any person from prosecuting a judicial proceeding pending at the

institution of the suit of injunction. However, it does not cover a scenario when
such a restraint is essential to prevent multiplicity of proceedings;

 To stop or restraint any person from applying to any legislative body;

 Where the plaintiff has no personal interest in the case;

 To stop any person from prosecuting any proceedings in any criminal matter;

 To stop any person from prosecuting any proceedings in a Court which is not
subordinate to the one from which the injunction is sought;

 To stop an act on the ground of nuisance, for which it is not reasonably clear
that it will create a nuisance;

 To stop any continuing breach for which the plaintiff has acquiesced;

 To stop the breach of contract, the performance of which would not be

specifically enforced;

 When the conduct of the plaintiff or any of his agents is such so as to disentitle
him from the assistance of the court;

 When an equally efficacious relief is available and can be obtained by any

other means except in case of breach of trust;

Illustrations

1. A seeks an injunction to restrain her 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 B to assess them. The court will refuse the injunction.
2. A manufactures and sells crucibles, designating them as "patent plumb-age crucibles"
though in fact they have never been patented. B pirates the designation. A cannot obtain
an injunction to restrain the piracy.

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Section 42. Injunction to perform negative agreement.

Section 42 presupposes that a contract is composed of three ingredients-

(a) an affirmative agreement to do certain act,

(b) a negative agreement not to do a certain act and the negative part must be
capable of being separated from the rest of the contract, and

(c) the plaintiff must have fully carried act his part of the contract.

Conditions necessary for the applicability of section.-It is essential-

(1) the contract should compromise of two agreements, one affirmative and the
other negative,

(2) both the agreements must be divisible,

(3) the negative agreement must relate to a specific act, it should not be general
negative of a stipulation,

(4) the court should be unable to compel specific performance of the affirmative
agreement,

(5) the plaintiff must not have failed to perform the contract so far as it is binding
on him.

Illustrations:

1. A contracts to sell to B for Rs. 1000 the goodwill of a certain business unconnected
with business premises, and further agrees not to carry on that business in Calcutta.
B pays A the Rs. 1000 but A carried on the business in Calcutta. The court cannot
compel A to send his old customers to B, but B may obtain an injunction restraining
A from carrying on the business in Calcutta.

2. A contracts with B to sing for twelve months at B's theatre and not to sing in public
elsewhere. B cannot obtain specific performance of the contract to sing, but he is
entitled to an injunction restraining A from singing at any other place of public
entertainment.

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 Case Laws:
1. L.D. Mestone School vs. kashi Nath (1951)

These two connected appeals arise out of two orders of injunction passed in a suit
brought by the respondent Shri Kashi Nath Misra against the appellant L.D. Meston
School Society, Ballia, for a declaration that a resolution passed by the appellant society
on 21-6-1950 was "illegal, ultra vires and ineffective" and that Pt. Sita Ram Chaturvedi,
Principal, of a college which is managed by the appellant society could not be asked to
make over a charge of his office.

It may be noticed that neither Pt. Sita Ram Chaturvedi nor Dr. Kapil Deo Upadhya was
a party to the suit. The injunction that was prayed for was for the benefit of Pt. Sita Ram
Chaturvedi and was to operate as against Dr. Kapil Deo Upadhya. None of them being
parties to the suit, it is obvious that no such injunction could be issued. For both these
reasons, we think that the orders passed by the Court below were wholly unjustified.
They must, therefore, be set aside.

2. Pepsi Foods vs Jai Drinks (P) Ltd. on 4 March, 1996

It is held that prima facie, "PEPSI" had a right under the contract to terminate the
license agreement and the only right available to "JAI" was to file a suit for
damages, "JAI" cannot continue to manufacture or market the products for which
the license had been given by "PEPSI" "PEPSI" is, therefore, entitled to an
injunction restraining "JAI" from manifacturing or marketing the products under
the brand name of Lehar Pepsi, Lehar 7 Up and Lehar Mirinda.

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 3. Interkardio Pvt. Ltd. vs. Gyrus Group PLC

The plaintiff has filed the present suit against the defendants, inter alia seeking relief
of permanent injunction. The plaintiff had entered into an agreement with defendant
no. 1 referred to as Gyrus on 22.9.2004 where under the plaintiff was appointed as
the exclusive distributor of Gyrus with the right to import, promote and sell the
products of Gyrus in the agreed territory i.e. India, Nepal and Bangalore.

Assuming that the distribution agreement stood automatically renewed as

contended by the plaintiff, the plaintiff cannot rely upon Section 42 of the Act also
for the reason that admittedly it has failed to perform its obligations under the
contract. The plaintiff has failed to meet the annual purchase targets in the first two
years of the agreement. Obviously, the plaintiff cannot seek to restrain the
defendants, to enforce the negative agreement while at the same time itself failing
to perform its own obligations thereunder.

4. Inox Leisure Limited v. PVR Limited (2020)

The High Court of Delhi (“DHC”) in the case of Inox Leisure Limited v. PVR
Limited (decided on May 18, 2020) held that an injunction seeking interference
with the contractual relations of parties, without an explicit law in place, would
violate the fundamental rights under Article 19(5) of the Constitution of India.

5. Kishore Samrite v. State of Uttar Pradesh : (2013) 2 SCC 398

This case is an important illustration of how injunctions can be used to prevent harm
to a party in a contractual relationship in India. The High Court granted an
injunction against the respondent to prevent further loss and to make the contract
equitable between the parties.

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 6. Jayant Nath v. Saligram Ltd. between the two. :- (2021) SCC Online
Del 561

In this recent case, the Delhi High Court granted interim injunction to the plaintiff,
where the defendant did not sell the goods in violation of the terms of their
distributorship agreement. Thus this decision further underscores the need for
mandatory relief in the 1990s contractual disputes where damages are insufficient
to rectify the harm.

7. Lalbhai Dalpatbhai & Co. vs Chittaranjan Chandulal Pandya on 14

April, 1965

it is evident that there is no material on record which would show how far the
enforcement of the negative stipulation contained in the contract is necessary for
the protection of the legitimate interests of the plaintiffs. The plaintiffs are carrying
on business as managing agents of various textile mills, while the defendant is a
fresh graduate from the university. It is no doubt that the defendant has had
experience in the engineering department of one of the mills under the management
of the plaintiffs for a short period but nothing has been shown on the affidavits as
to how the plaintiffs would be prejudiced if the defendant is nor restrained from
serving any other employer.

This application is only for an interim injunction and it may be that at the hearing
of the suit the plaintiffs may be able to lead evidence to show that it is necessary for
the protection of the interests of the plaintiffs that the defendant should be restrained
from serving in any other textile mill in the same capacity or even with any other
employer, but to-day there is no material before us which would warrant the grant
of an injunction even in a limited form. The test which we have formulated above
is not satisfied and we cannot, therefore, issue an injunction in any form against the
defendant.

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 8. Ram Kishun v. Jamuna Prasad, (1951) 6 DLR 22 (Pat)

The question to be examined in this case is whether the petnrs. are entitled to
be granted a temporary injunction against the oposite party restraining the
latter from executing the order of eviction made by the House Controller,
Monghyr.

The argument was stressed that it was in the discretion of the lower Cts. to
grant or not to grant an order of temporary injunction, & the H. C. ought not
to interfere in such a case. But I am of the opinion that the lower Cts. have
not exercised their discretion according to well-settled judicial principles but,
on the contrary, have acted in an arbitrary manner. Instead of finding whether
a prima facie case has been made out, the lower appellate Ct. has indeed
decided the whole suit by finding that "there was no lack of jurisdiction on
the part of the House Bent Controller in passing the eviction order & the title
suit filed is merely a contrivance to extend the period of stay o£ the applts. in
the house as long as possible

9. Bruce v. Silvaraj, (1987) Supp SCC 161

It arises out of a suit for injuction. It is well settled that injuction can be obtained
on the basis of possession. In view of the result of the connected appeal where
possession of the adversary has been confirmed, no injuction was available to be
granted. The civil appeal is allowed and the judgment and decree of the High
Court are set aside and those of the lower appellant courts which dismissed the
suit shall stand restored.

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 10. Overnite Express Limited vs Delhi Metro Rail Corporation

Reading of the judgments referred to above leads this Court to only one conclusion
that a Contract which in its nature is determinable, cannot be specifically enforced
in view of the clear legal bar under Section 14(1)(c) of the Specific Relief Act, 1963.

Once a Contract is not enforceable, Section 41(e) Specific Relief Act, 1963,
occupies the field and provides that an injunction cannot be granted to prevent the
breach of a Contract, the performance of which would not be specifically enforced.
Section 41(e) of the Specific Relief Act, 1963.

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 CONCLUSION

Injunction is an equity-based relief. It is completely at the court's discretion to grant

an injunction or to refuse it. The relief cannot be claimed as an affair of right however
worthwhile the applicant's case may be. The power to grant an injunction must,
therefore, be exercised with the utmost prudence, vigilance, and care. It is an
extraordinary and sensitive power that is associated with the risks of imposing losses
or disadvantages upon the innocent party. Thus unlike all other things in this world,
the grant of an injunction is also not absolute.

One of the greatest hurdles in administering justice today is a delay. Delay injustice
needs to be tackled by the joint efforts of all stakeholders. However, the harsh truth in
today's World is that we are progressing towards a society that is overrun by hordes of
lawyers, hungry like locusts, and bridges of judges in numbers that have never been
considered before. But it is wrong to believe that ordinary people want black-robed
judges, well-dressed lawyers, fine-tuned courtrooms to resolve their disputes. People
with legal Issues, such as people with pain, want relief and want it as quickly as possible
and an injunction is just one of the methods to help those people in seeking relief for
upholding their rights.

The grant of injunction is not a matter of right but it is the full discretion of the courts
and the parties cannot claim it as a right. The injunctions can be granted by the courts
only when they feel that the case fulfils the criteria as laid down under the Acts for grant
of injunctions and it should be as per the sound principles of law and ex debito justitiae.

The following are few of the principles that are to be borne in mind while dealing with any
such applications:

• Where there Is a right, there Is a remedy (Ubijus ibi remediam)

• The one who is seeking equity must do equity and must come with clean hands (Ex
turpi causa non oritur actio).

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 • Equity follows the law (Aequitas sequitur legem).

• Law aids those who are vigilant and not those who are indolent or sleeping over their
rights (Vigilantibus Non Dormientibus Jura Subveniunt).

It can be said that the plaintiff has to establish the legal right and his exclusive
possession to get the relief of injunction and the court has the power and discretion
to grant the Injunction order to prevent the breach of obligation and protect the
rights of the people.

Since the power to grant injunction is discretionary ,the refusal to grant the
same by the court Is, thus, proper and cannot be said to be arbitrary.

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REFERENCES:-

1. [Link]

2. [Link]

3. [Link]
of-two-parties-in-absence-of-law-would-violate-article-195-of-the-constitution-of-india/

4. [Link]

5. [Link]
of-two-parties-in-absence-of-law-would-violate-article-195-of-the-constitution-of-india/

6. [Link]
[Link]

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