NOTES ON INJUNCTION
Basics about injunction
Injunction means a restraining order given by the court.
In other words, injunction mean to
enjoined/stop/prevent from committing a wrongful act
or breech of a legal duty.
The provisions relating to injunction are given under part
III, chapter VII and chapter VIII, sections 36-42.
Part III of the specific Relief Act provides for preventive
relief by way of injunction, temporary and perpetual.
Chapter VII talks about injunction generally u/s 36-37.
Chapter VIII talks about perpetual injunction u/s 38-42.
It is a discretionary relief.
TEMPORARY INJUNCTION
A temporary or interlocutory injunction is merely
provisional or interim in nature and does not conclude
or determine the rights of the parties. It’s basic object is
to preserve matters in status quo until the case can be
tried.
A temporary injunction may be granted to the plaintiff
on his making out a prima facie case in his support.
Section 36 provides that preventive relief may be
granted by injunction, temporary and perpetual.
Section 37{1} provides that temporary injunction may be
granted at any stage of a suit, and it continue until a
specified time or until the further order of the court. It
also provided that it regulated by the provisions of CPC.
Provisions under section 94{c} and order 39, rule 1-5 are
deal with concept of temporary injunction.
Temporary injunction is interim in nature and can also
be known as supplemental proceeding.
As temporary injunction is an interim relief the final
result of it is an order not decree.
A temporary injunction is asked for by way of an
application not suit.
Grounds for the application of temporary injunction are
provided under Rule 1 and Rule 2 of order 39 CPC as
follows:
{a} any party may apply – where there is threaten to
dispose/damage/wasted/alienate or wrongfully sold of
property; or
{b} plaintiff may apply – where there is threat that
defendant may remove or dispose the property in order
to defraud creditors; or
{c} plaintiff may apply – where defendant threaten to
cause injury to property.
And under Rule 2 when there is continuous
PRINCIPLES WHICH MUST BE FOLLOWED BY THE COURT
WHILE AWARDING TEMPORARY INJUNCTION:
In the case of ZAHEER KHAN VS PERCEPT D MARK INDIA
{pvt.} ltd. AIR 2004 held that the court shall grant injunction
if the following conditions are satisfied:
[1] the plaintiff must establish a prima facie case – he is not
required to make out clear title but he must establish that
there is a substantial question to be investigated and that
matter should be presumed in status quo until the injunction
is finally disposed off.
[2] an irreparable harm/injury would result if the injunction
was refused and that there is no other remedy which could
hide the irreparable harm.
[3] the conduct of the plaintiff must not be blame worthy i.e.
plaintiff should not be a wrong doer. Held in GUJARAT
BOTTLING CO. Ltd. VS THE COCA COLA CO. AIR 1995 SC
[4] the balance of convenience requires that the injunction
must be granted in favour of applicant and against the
defendant.
PERPETUAL INJUNCTION
Section 36 provides that preventive relief may be
granted by injunction, temporary and perpetual.
Section 37[2] provides that perpetual injunction can only
be granted by way of decree made at the hearing [audi
alteram partem] and upon the merits of the suit, and
defendant is thereby perpetually enjoined from the
assertion of right, or from the commission of an act.
Section 38 sub section(1) provides grounds under which
a perpetual injunction can be granted by the court i.e. to
prevent the breach of an obligation. [NOTE- obligation as
per section 2(a) of SRA means every duty enforceable by
law.]
Subsection (2) of section 38 provides that when any such
obligation arises from contract, the court shall be
subject to the provisions contained in chapter II (i.e.
from section 9-25).
NOTE- this should be read with section 41(e)where an
injunction to prevent the breach of a contract cannot be
granted or refused by the court if the performance of
which would not be specifically enforced.
Subsection (3) of 38 is moreover explanatory to section
38 as it provides some specific types of cases in which
perpetual injunction can be granted by the court i.e.
(a) When defendant as a trustee of the property,
invades or threatens to invade the plaintiff’s right
to, or enjoyment of property; for e.g.
In course of A’s employment as an advocate,
certain papers belonging to his client B, came
into his possession. Now A threatens to make
this paper public. B may sue for perpetual
injunction to restrain A from so doing. (S.
Ganpati vs Kunjammal AIR 2004.)
A pollutes the air with smoke, so as to
interfere materially with the physical comfort
of B and C who carry on business in
neighbourhood. B and C may sue for perpetual
injunction to restrain A from polluting the air.
A, a professor of law delivers lectures to his
students. The lectures being his own literally
composition, he does not communicate those
lectures to the whole world. These lectures are
property of the professor and not of the
students. A is entitled to restrained the
student from publishing the notes without his
consent.
NOTE: this subsection is not exhaustive, it is only
Illustrative in nature.
(b) Where there exists no standard for ascertaining the
actual damage caused, or likely to be caused, by
such 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 FOR THE SUIT OF
PERPETUAL INJUNCTION (Attar Singh Balram Singh vs Yuvraj
Dutt Singh, 1945)
These conditions are prerequisite-
There must be a legal right express or implied in favour
of plaintiff. (Basanti Paikaray vs Pranath Paikaray AIR
2016).
There must be a violation or a threatened invasion of
such legal right. (Parkasho Devi vs Tarsem Lal AIR 2003).
Such a right should be existing one.
The case should be fit for the exercise of court’s
discretion.
It should not be fall within the sphere of the restraining
provision contained in section 41 Specific Relief Act,
1963.
MANDATORY INJUNCTION
The injunction which commands 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
obligation”.
For e.g. an order to pull down a building which has already
been erected to the obstruction of plaintiff’s right.
Another example A buy new buildings, through which he
obstructs light to the access and use of which B has acquired
a right under the limitation act. 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 which obstructs these
lights.
When a mandatory injunction is granted under this section
two element must be taken into consideration which are as
follows:
1. In the first place, the court has to determine what acts
are necessary in order to prevent the breach of
obligation.
2. In the second place, the requisite acts must be such as
the court is capable of enforcing.
For e.g. (a) pulling down of building, (b) court may also
order all written communication made by B as patient to A
medical advisor to be destroyed.
SHEONATH VS ALI
In this case it was held that mandatory injunction will
not be granted in the following circumstances:
Where compensation in money would be an
adequate relief.
Balance of convenience is in favour of defendant.
Breach of obligation in which the plaintiff has
acquiesced.
WHEN COURT MAY REFUSED TO GRANT PERPETUAL
INJUNCTION
Restraining injunction are given under section 41, which lays
down the circumstances when the perpetual injunction will
be refused by the court:
(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;
(ha)if it would impede or delay the progress or completion of
any infrastructure project or interfere with the continued
provision of relevant facility related thereto or services being
the subject matter of such project. {inserted by Specific
Relief(amendment)Act, 2018 }
(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.
Section 42: - Injunction to perform negative agreement
Notwithstanding anything contained in clause (e) of section
41, where a contract comprises an affirmative agreement to
do a certain act, coupled with a negative agreement, express
or implied, not to do a certain act, the circumstance that the
court is unable to compel specific performance of the
affirmative agreement shall not preclude it from granting an
injunction to perform the negative agreement:
Provided that the plaintiff has not failed to perform the
contract so far as it is binding on him.