Unit-V

SPECIFIC RELIEF ACT, 1963

The Law of Specific Relief in India was originally codified by Specific Relief Act, 1877. The
provision of this enactment was considered by the Law Commission in its Ninth Report which
was later replaced by the present act of 1963. The Specific Relief Act, 1963 deals with the
remedies granted at the discretion of the court for the enforcement of individual civil rights. In
case of breach of contract, the general remedy available to the aggrieved party is compensation
or damages of loss suffered. For this, a civil suit is filed against the guilty party who had made
the default in performance of its duty or obligation as per the terms of contract under the statutory
provision of Section 73-75 of Indian Contract Act 1872. However, sometimes pecuniary
compensation does not satisfy the plaintiff so he may ask for specific relief. For example, if
somebody unlawfully dispossess a person without his consent having peaceful possession over
the property then specific relief may enable him to have the possession of same property instead
of claiming pecuniary compensation.

RECOVERY OF POSSESSION OF PROPERTY (SECTIONS 5 TO 8)

The recovery of possession of this Act is provided under two heads: recovery of the immovable
property and recovery of the movable property. The law of Specific Relief Act, 1963 works on a
basic principle that "Possession is itself a prima facie evidence of the ownership".

1. Recovery of possession of Immovable property

Section 5 explains the remedies available to a person when he is disposed from his property.

If a person has been removed through the line of possession or wants to recover what lawfully is
his property, then that person can do so through the recovery procedure provided by the Code of
Civil Procedure, 1908 and in which the person will prove that the title belongs to him.

Section 6 of this Act details that if a person has been dispossessed or divested from the property
against the nature of law, then that person can file a suit for recovery of possession. This section
is not only a mere legal rule but also has a wide practical approach. There are certain essential
requirements for fulfilment of recovery under this section that are as follows:

The person suing for dispossession must be in possession of that property.

The person must be dispossessed from the property and such divest from the property must be
unlawfully done or must be carried out against the nature of law.

The dispossession must be without the consent of the person suing.

Section 6 sub-clause (2) explains that no suit can be bought by a person after the expiry of 6
months from the date of dispossession.

YS V.V PURA COLLEGE OF LAW

Section 6 sub-clause (2) also explains that no suit by a person can be brought against the
government.

If the person has not filed any suit in the prescribed time period (section 6) then the only relief
open to him is that of section 5 ie to prove his title of the property in a better way. Section 6 has
certain limitations which explains that if any order or decree has been directed by the court in
regards to section 6 then, no appeal or review shall lie against such order or decree but such
order is open to revision.

2. Recovery of the possession of movable property

Section 7 explains that when a person wants to recover the possession of the movable property.

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they can follow the procedure expressed by the Code of Civil Procedure, 1908. section 7 has
further two sub-clauses which further details that a trustee may file suit against the beneficial
interest he was entitled to and the other sub-clause explains that the ownership of the property
can also be expressed with the presence of a special right given to the person suing, which
would be enough as an essential to file a suit. OF

Essentials of section 7 are as follows:

1. There must be a presence of movable property which is capable of being delivered or

disposed of. LLEGE

2. The person suing must have the possession of the property in question. e possessio

3. There may be an existence of a special or temporary right on the property.

[Act, 1963 explains that when a person is in the possession of Section 8 of the Specific Relief
Act, 1963

the article to which is he is not the owner, shall be compelled to deliver such article to the person
who will have its immediate possession in following cases:

When the possession held by the defendant as the trustee of a person who has the immediate

When compensation in money is not an adequate relief.

When it is difficult to ascertain actual damage caused to the person.

When the possession of the article has been wrongfully transferred from the person so entitled.

SPECIFIC PERFORMANCE OF CONTRACTS

Specific performance means enforcement of exact terms of the contract. Under it the plaintiff
claims for the specific thing of which he is entitled as per the terms of contract. For example
if A agrees to sell certain shares to B of a specific company which are limited in number and after
the payment made by B, if A refuses to sell the shares, then B is entitled to recovery of those
shares.

Contracts which can be specifically enforced (Sections 10 to 13)

According to Sections 10 to 13 of Specific Relief Act 1963 in the following conditions specific
performance of the contract is enforceable:

Section 10. Specific performance in respect of contracts

The specific performance of any contract may, in the discretion of the court, be enforced: -

a. when there exists no standard for ascertaining actual damage caused by the non-the non-
performance of the act agreed to be done; or

b. when the act agreed to be done is such that compensation in money for its non-performance
would not afford adequate relief.

Explanation

Unless and until the contrary is proved, the court shall presume-

that the breach of a contract to transfer immovable property cannot be adequately relieved by
compensation in money; and

that the breach of a contract to transfer movable property can be so relieved except COLLEGE

in the following cases-

(a) where the property is not an ordinary article of commerce, or is of special value or interest to
the plaintiff, or the market; of goods which are not easily obtainable in

(b) where the property is held by the defendant as the agent or trustee of the plaintiff.

Section 11. Specific performance of contracts connected with trusts enforceable.

TRA

(1) The The specific performance of a contract may, in the discretion of the court, be enforced
when the act agreed to be done is in the performance wholly or partly of a trust.

(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be ifically
enf specifically enforced.

Section 12. Specific performance of part of contract.

(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific
performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which
must be left unperformed by only a small proportion to the whole in value and admits of
compensation in money, the court may, at the suit of either party, direct the specific performance
of so much of the contract as can be performed, and award compensation in money for the
deficiency.

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which
must be left unperformed either-

(a) forms a considerable part of the whole, though admitting of compensation in money, or

(b) does not admit of compensation in money, he is not entitled to obtain a decree for specific
performance; but the court may, at the suit of other party, direct the party in default to perform
specifically so much of his part of the contract as he can perform, if the other party-

(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of
the contract reduced by the consideration for the part which must be left unperformed and a case
falling under clause (b), pays or had paid the consideration for the whole of the contract without
any abatement, and

(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract
and all right to compensation, either for the deficiency or for the loss or damage or fo sustained
by him through the default of the defendant.

(4) When a part of a contract which, taken by itself, can and ought to be specifically performed,
stands on a separate and independent footing from another part of the same contract which
cannot or ought not to be specifically performed, the court may direct specific performance of the
former part

Explanation: For the purposes of this section, a party to a contract shall be deemed to be unable
to perform the whole of his part of it if a portion of its subject matter existing at the date of the
contract has ceased to exist at the time of its performance.

Section 13. Rights of purchaser or lessee against person with no title or imperfect title.

(1) Where a person contracts to sell or let certain immovable property having no title or only an
imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the
following rights, namely-

(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property,
the purchaser or lessee may compel him to make good the contract out of such interest;

(b) where the concurrence of other persons is necessary for validating the title, and they are
bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him

to procure such concurrence, and when a conveyance by other persons is necessary to validate
the title and they are bound to convey at the request of the vendor or lessor, the purchaser or
lessee may compel him to procure such conveyance,
(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for
an amount not exceeding the purchase money and the vendor has in fact only a right toredeem
it, the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and,
where necessary, also a conveyance from the mortgagee;

(d) where the vendor or lessor sues for specific performance of the contract and the suit is
dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return
of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit,
interest and costs on the interest, if any, of the vendor or lessor in the property which is the
subject-matter of the contract.

(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale
or hire of movable property.

Contracts Which Cannot Be Specifically Enforced (Sections 14 to 13)

According to Section 14 of Specific Relief Act 1963, there are certain contracts which cannot be
specifically enforced and these are:

Where compensation in money is an adequate relief: Here the court will not order specific
performance of contract as it is expected that the plaintiff will bank upon the normal remedy for
breach of contract i.e., remedy of compensation. For example, contract of mortgage of
immovable property (Rambai v. Khimji), contract of sale of goods (Bharat v. Nisarali), contract of
repair of premises etc.

Where a contract runs into minutes or numerous detail: These contracts include contract

which depends upon the personal qualification or the violation of the parties or is of such nature
that the court cannot enforce specific per performance of its material terms. In Robinson
Davison, it was held by the court that the contract to perform in concert depends upon the
personal kill of defendant's wife, and the contract cannot be specifically enforced due to her
illness. The other example is construction contract where the detailed terms of contract are not
explained.

Contracts of determinable nature: Determinable contract means a contract which can be

determined or revoked or put to an end by a party to the contract. For example, in case of
partnership at will any partner can retire by giving notice in writing to other partners and can
dissolve the firm.

Contracts which involve the performance of continuous duty which court cannot supervise:
Earlier under Specific Relief act, 1877 the continuous duty which court cannot supervise is
considered over a period of 3 years which was omitted under Specific Relief Act. 1963 and no
time limit restricted for the performance of a continuous duty. These include contract of
appointment of employees for continuous service or contract to execute sale deed every year. In
Central Bank v. Vyankatesh, the defendant was required to execute deed everyyear for the
period of 25 years and contract is held to be specifically unenforceable.
Contract of arbitration: According to Section 14(2), a contract to refer present or future

differences to arbitration shall not be specifically enforceable.

However, Section 14(3) contains certain exception and the following kinds of contract are

specifically enforceable: -

1. A contract to execute a mortgage or furnish other security for repayment of any loan which the
borrower is not willing to repay at once, the court would grant specific performance to execute
mortgage or to give any other security.

2. A contract to take up and pay for any debentures of a company.

3. A contract to execute a formal deed of partnership at will when the business has already
commenced.

4. A contract for the construction of any building or the execution of any other work on land if

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5. Detailed or the terms of the contract has been sufficiently explained & the court can determine
the exact nature of building or work.

6. The plaintiff has a substantial interest in performance of the contract and compensation in
money is not an adequate relief.

7. The defendant has in accordance with the contract, obtained possession of whole or part of
the land on which the building is to is to be constructed or other work is to be executed. CLLEGE

Persons For or Against Whom Contracts May Be Specifically Enforced

Section 15 talks about who may obtain specific performance:

The specific performance of a contract may be obtained by-

(a) any party thereto;

(b) the representative in interes representative in interest or the principal, of any party thereto:
Provided that where the learning, skill, solvency or any personal quality of such party is a
material ingredient in the contract, or where the contract provides that his interest shall not be
assigned, his representative in interest or his principal shall not be entitled to specific
performance of the contract, unless such party has already performed his part of the contract, or
the performance thereof by his representative in interest, or his principal, has been accepted by
the other party;

(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between
members of the same family, any person beneficially entitled thereunder,

(d) where the contract has been entered into by a tenant for life in due exercise of a power, the
reminder-man;
(e) a reversioner in possession, where the agreement is a covenant entered into with his
predecessor in title and the reversioner is entitled to the benefit of such covenant;
(f) a reversioner in remainder, where the agreement is such a covenant, and the reversioner is
entitled to the benefit thereof and will sustain material injury by reason of its breach;

(g) when a company has entered into a contract and subsequently becomes amalgamated with
another company, the new company which arises out of the amalgamation,

(h) when the promoters of a company have, before its incorporation, entered into a contract for
the purposes of the company, and such contract is warranted by the terms of the incorporation,
the company: Provided that the company has accepted the contract and has communicated such
acceptance to the other party to the contract.

Who cannot claim specific performance of a contract?

cated LAW

As per sec 16 specific performance of a contract cannot be enforced in favour of a person or be

claimed by a person-

Specific performance of a contract cannot be enforced in favour of a person-

(a) who would not be entitled to recover compensation for its breach; or breach o

(b) who has become incapable of performing, or violates any essential term of, the contract that
on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance
with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to aver and prove that he has performed or has always been ready and willing to
perform the essential terms of the contract which are to be performed by him, other than terms
the performance of which has been prevented or waived by the defendant. Explanation For the
purposes of clause (c), (i) where a contract involves the payment of money, it is not essential for
the plaintiff to actually tender to the defendant or to deposit in court any money except when so
directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to
perform, the contract according to its true construction.

SECTION 26. RECTIFICATION OF INSTRUMENTS

Section 26. When instrument may be rectified.

(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in
writing [not being the articles of association of a company to which the Companies Act, 1956 (1
of 1956) applies] does not express their real intention, then-

(a) either party or his representative in interest may institute a suit to have the instrument
rectified; or (b) the plaintiff may, in any suit in which any right arising under the instrument is in
issue, claim in his pleading that the instrument be rectified; or (c) a defendant in any such suit as
is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification
of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub
section (1), the court finds that the instrument, through fraud or mistake, does not express the
real intention of the parties, the court may, in its discretion, direct rectification of the instrument so
as to express that intention, so far as this can be done without prejudice to rights acquired by
third persons in good faith and for value.

(3) A contract in writing may first be rectified, and then if the party claiming rectification has so
prayed in his pleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under this section
unless it has been specifically claimed: Provided that where a party has not claimed any such
relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the
pleading on such terms as may be just for including such claim.

In contract law, rescission has been defined as the unmaking COLLEGESEL of a

RESCISSION OF CONTRACTS (SECTION 27-30)

contract between parties. This is done to bring the parties, as far as Rescission is the unwinding
of a transaction. possible, back to the position status quo ante). in which they were before they
entered into a contract (the

When is recession available?

Sections 27 to 30 of specific relief act deals with rescission of contract. The relief of rescission is
available to a person who has become the victim of fraud or illegality or something equivalent
which makes the contract either void or voidable. Section 27(1) provides for circumstances

when a party to a contract may rescind it and are as follows:

1. When the contract is voidable or terminable by the plaintiff.

2. Where the contract is unlawful for causes not apparent on its face and the defendant is

more to blame.

Loss of right of rescission

Section 28(2) provides that the right of rescission is not available in the following cases

1. Affirmation

Where the plaintiff on becoming aware of his right to rescind has expressly or impliedly
ratified/affirmed the contract. An express affirmation takes place when the right to rescind is
openly waived. An implied a formation takes place when the party having the right to rescind

is instead enjoying the benefits of the contract

2. Where restitution is not possible
The right of rescission is lost when the position of the parties has been altered to such an extent
that they cannot be put back to their original status. For example, where one party has already
resold the goods or consumed them, restoration off the status quo becomes impossible.

3. Intervention of third parties

Where, for example, a person has obtained goods by fraud and, before the seller is able to catch
him, he transfers the goods to a bona fide buyer, the deceived seller would not be allowed to get
rid of the sale on account of the fraud.

4. Severance

Rescission is not allowed by the plaintiff is seeking rescission of only a part of the contract and
that part is not severable or being separated from the rest of the contract.

Inbuilt remedy of rescission in decree of specific performance (Section 28)

Where a decree of specific performance has been passed in respect of a contract for the sale or
lease of immovable property, but the party to whom such relief has been granted does not pay
the price within the time prescribed by the court, the seller may ask the court for rescission.

The court may:

1. direct the purchaser or lessee, if he has already taken over possession, to restore it to the
seller and

2. to pay him rent for the period during which he enjoyed the benefits of possession.

Limitation

An application for rescission should be filed within 3 years from the date of the decree for specific
performance.

Rescission as an alternate prayer rnate prayer is specific performance not granted (Section 29)

A plaintiff instituting a suit for specific performance of contract may pray that if the contract
cannot be specifically enforced it may be rescinded and delivered up to be cancelled.

Recession and equity (Section 30)

If the court grants decree of recession, it may require the decree holder to restore any benefit
received by him under the contract to the extent to which justice requires.

CANCELLATION OF INSTRUMENTS (SECTION 31-33)

Section 31 to 33 of the Specific Relief Act, 1963 provide for the cancellation of instruments.

When a document is valid, no question arises of its cancellation. When a document is void ab
initio, a decree for setting aside the same would not be necessary as the same is non est in the
eye of the law, as it is a nullity. Section 31 explains the remedy of cancellation as follows:
"Any person against whom a written instrument is void or voidable, and who has a reasonable
apprehension that such instrument, if left outstanding may cause him serious injury, may sue to
have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it
to be delivered up and cancelled." It provides for a discretionary relief. The above-mentioned
provision encompasses three essential conditions on the fulfilment of which this remedy can be
granted by the court-

1. The instrument must be void or voidable.

2. The plaintiff must have a reasonable apprehension of serious injury if the instrument is left
outstanding.

3. Under the circumstances of the case, the court exercises its discretion and orders the
instrument to be delivered up and cancelled.

Who can seek cancellation?

Any person against whom a written instrument is void or voidable and who has reasonable
apprehension that such instrument of if left outstanding may cause him serious injury, may sue to
have it adjudged void or voidable Under this section not only partie parties to the instrument but
also persons affected by such instrument can maintain an action. For example, under Section 53
of Transfer of Property Act, with regard to a fraudulent transfer, one creditor on behalf of other
creditors can sue for cancellation of the sale deed executed by the debtor to delay, defraud or
defeat the rights of the creditor. In the case of Chajulal v. Gokul, the neighbor of an owner of the
house, while mortgaging his property wrongfully stated in the deed that the wall adjoining the
property belonged to him and that he had the right of way over the owner's property. Hence, the
court considered the owner eligible to get such terms in the deed cancelled as this specifically
work affecting his title and interest.

Partial Cancellation (Section 32)

As per Section 32, to court in its discretion can very well cancel only a part of an instrument. It
means, in residue, the instrument can stand in a proper case where there is evidence of different
rights or different obligations. This means that rights and obligations identified must be distinct
and separable. In Ram Chander v. Ganga Saran, the court held that the plaintiff claimed
endorsement on a document to be an act of forgery and thus false, hence, liable to be cancelled.
The court answered in affirmative and partially cancelled only the endorsement because it is a
document in itself separate and distinct from the rest of the document.

Doing equity for seeking equity (Section 33)

The maxim of 'he who seeks equity must do equity' is inherent in Section 33 of the 1963 Act. It
puts an obligation on the party to whom the relief of cancellation is granted, to restore any benefit
which he may have received from the other party and to make any compensation to him

which justice require. This provision would apply to a case where the plaintiff has not specifically
asked for the relief of cancellation and the defendant has successfully resisted the instrument
sought to be enforced against him on grounds of the instrument being void or voidable.
DECLARATORY DECREES (SECTION 34 &35)

The declaratory decree is the edict which declares the rights of the plaintiff. It is a binding
declaration under which the court declares some existing rights in favour of the plaintiff and
declaratory decree exists only when the plaintiff is denied of his right which the plaintiff is entitled
to. After that specific relief is obta obtained by the plaintiff against the defendant who denied the
plaintiff from his right.

According to Section 34, of the Special Relief Act, 1963, any Person entitled to any legal
character, or to any right as to any property, may institute a suit against any person denying, or
interested to deny, his title to such character or right, and the court may in its discretion make
therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any
further relief.

Essentials of a declaratory suit

There are a total of four essential elements considered for a declaratory Suitor for the valid suit
for Declaration and all the four elements are mentioned below.

The plaintiff at the time of suit was entitled to any legal character or any right to any Property.

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The defendant had denied or was planning or interested in denying the rights of the plaintiff.

The declaration asked for should be the same as the declaration that the plaintiff was d to a right.
entitled to a right.

The plain plaintiff was not in a position to claim a further relief than a mere declaration of his
rights which have been denied by the defendant.

Section 35 of the Special Relief Act

According to this section, a declaration made under this section is binding upon both the parties
to the suit and the person claiming relief respectively and where any of the parties are trustees
on the person for whom if, in existence at the date of declaration, such parties would be a
trustee.

Maharaja Benares v. Ramji khan ILR AIL.138-

In this case, it was declared that if the suit is filed and the necessary party is absent then the
court will dismiss the suit for the declaration. So, it is necessary that both the parties should be
available. There is no specific rule to decide whether the discretionary power of the court should
be granted or not, the discretionary power of the court is being exercised according to the case
and there are no specific criteria to decide in which cases the court will exercise it's a
discretionary power.

PREVENTIVE RELIEF

INJUNCTION AND ITS TYPES

The term 'injunction' has been the subject of various attempts at a definition. It has been defined
by Joyce as, "An order remedial, the general purpose of which is to restrain the commission of
some wrongful act of the party informed". Bumey "a judicial process, by which one who has
invaded or threatening to invade the rights of another is restrained from continuing or
commencing such wrongful act". The The most expressive and acceptable definition is the
definition of Lord Halsbury. According to him, "An injunction is a judicial process whereby a party
in an order to refrain from doing or to do a particular act or thing".

Injunction acts in personam i.e. it does not run with the property. For instance, 'A' the plaintiff
gets an injunction against 'B' forbidding him to erect a wall. 'B' sells the property to 'C'. In such a
case, the sale does carry an injunction with it. An injunction may be issued against individuals,
public bodies or even the State. Disobedience of the order of an injunction is punishable as
contempt of court. There are three characteristics of an injunction. They are as follows.

1. A judicial process.

2. The relief obtained is restraint or prevention.

3. The act restrained is wrongful.

Types of an Injunction

1. Temporary

2. Perpetual injunctions

3. Mandatory injunctions

There are basically two types of injunctions as provided by section 36 of the Specific Relief Act,
1963. Section 36 of the Specific Relief Act with the head "Preventive relief how granted' reads
as, "Preventive relief is granted at the discretion of the court by injunction, temporary or
perpetual". As per provisions of section 36 injunctions are either temporary (interlocutory) or
perpetual. Temporary and perpetual injunctions are defined under Section 37 of the Specific
Relief Act.

Temporary Injunctions

The procedure for granting temporary injunctions is not governed by the Specific Relief Act. 1963
but governed by the rules laid down in Order XXXIX, Rules 1 and 2 of Civil Procedure Code
which reads as follows. "A temporary injunction may be granted in the following cases.

1. For the protection of interest in the property

This category will cover the following cases

(a) That property in dispute is in danger of being wasted or alienated by any party to the suit or
wrongfully sold in execution of a decree; or

(b) That the defendant threatens to remove or dispose of his property with a view to defraud his
creditors; and
(c) That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit." other

The court may by the order grant an interlocutory injunction to restrain such act or make such
order for the purpose of staying and preventing the damage of wasting, alienation, sale or
disposition of the property as the court thinks fit until the disposal of the suit.

2. Injunction to restrain, repetition or continuance of breach

In any suit for restraining the defendant from committing a breach of contract or other injury, of
any kind, whether compensation is claimed in the suit or not, the plaintiff may at any time after
the commencement the suit and either after or before judgement, apply to the court for a
temporary injunction to restrain the defendant from committing the breach of contract or an injury
complained of, or any breach of contract or injury arising out of same contract.

Injunction is a discretionary relief

The power of the court to grant an injunction is a discretionary one ie. it is not the right of an
individual to get the injunction. Section 36 expressly lays down that, "Preventive relief is granted
at the discretion of the court by an injunction, temporary or perpetual".

Conditions to be fulfilled for grant of Temporary Injunctions

1. The plaintiff must be able to establish a prima facie case.

He is not required to establish a clear title but a substantial question that requires to be
investigated and that matter should be preserved in the same status as it is until the injunction is
finally disposed of. The court must be satisfied that there is a bona fide dispute raised by the
applicant. The existence of a prima facie right and infraction of such right is a condition precedent
for grant of temporary injunction. The burden is on the plaintiff to satisfy the court by leading
evidence or otherwise that he has a prima facie case in his favour. In deciding a prima facie
case, the court is to be guided by the plaintiff's case as revealed in the plaint, affidavits or other
materials produced by him.

2. Irreparable injury

An irreparable injury may be caused to the plaintiff if the injunction is refused and that there is no
other remedy open to the applicant by which he could protect himself from the feared injury. The
applicant must further satisfy the court about the second condition by showing that he will suffer
irreparable injury if the injunction as prayed is not granted, and that there is no other remedy
open to him by which he can protect himself from the consequences of apprehended injury. In
other words, the court must be satisfied that refusal to grant injunction would result in 'irreparable
injury' to the party seeking relief and he needs to be protected from the consequences of
apprehended injury. Granting of injunction is an equitable relief and such a power can be
exercised when judicial intervention is absolutely necessary to protect rights and interests of the
applicant. The expression irreparable injury however does not mean that there should be no
possibility of repairing the injury. It only means means t that the injury must be a material one,
i.e., which cannot be adequately compensated by damages. An injury will be regarded as
irreparable where there exists no certain pecuniary standard for measuring damages.
3. The conduct of the plaintiff has not been blameworthy.

The plaintiff should come before the Court with clean hands. If he suppresses material facts,
documents then he is not entitled for the relief of injunction and further points of balance of
convenience, irreparable injury even not required to be considered in such case.

4. The balance of convenience requires that the injunction should be granted and compensation
in money would not serve an adequate relief.

The court must be satisfied that the comparative mischief, hardship or inconvenience which is
likely to be caused to the applicant by refusing the injunction will be greater than that which is
likely to be caused to the opposite party by granting it. It is to be noted that it is a settled principle
of law that if in a suit where there is no permanent injunction sought for in the final prayer,
ordinarily a temporary injunction cannot be granted. So, the principles that govern the grant of a
perpetual injunction would govern the grant of a temporary injunction also.

Perpetual/Permanent Injunction

According to Section 37(2) permanent injunction can be granted only on the merits of the case
and it finally decides the rights of the parties whereas temporary injunction is granted on prima
facie case.

When is Perpetual Injunction granted?

According to Section 38 perpetual injunction may be granted to

1. To prevent the breach of an obligation existing in favour of the applicant, whether expressly or
by implication. This obligation may arise from either a tort, contract, trust or any legal obligation.
Illustration: Ram is a tenant at Shyam's flat. Shyam has specifically asked Ram to not displace
the prayer room, as it had a gold statue of a deity. Ram wilfully disobeyed and tried to remove
the statue. Here, the court may grant a permanent injunction, in order for Ram to fulfil the request
of Shyam.

2. When any such obligation arises from contract, the court shall be guided by the rules and
provisions contained in Chapter II i.e., only in cases where contract is capable of specific
performance. Section 41(e) states that no injunction can be granted to prevent breach of a
contract that is not capable specific performance. But Section 42 states that where a contract
comprises of a positive act coupled with a negative agreement to not do an act, the court can
enforce the negative covenant although the positive act is not capable of specific performance.
Illustration: 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 elsewhere.

3. Where the defendant is a trustee of the property for the plaintiff. Illustration: A, an advocate
comes in possession of his client B's documents during employment. A threatens to
communicate the contents of the document to a third party/public. B may sue for an injunction to
permanently restrain A from doing so. An advocate is under an obligation in the nature of trust
not to disclose secrets of his clients.
4. Where there is no standard for ascertaining the actual damage caused, or likely to be caused,
to the plaintiff, by invasion of his rights. Illustration: the installation of an electric transformer in
front of the plaintiff's land causing nuisance, hindrance and obstruction to free access to the
highway was restrained by issuing permanent injunction.

5. Where the invasion of the plaintiff's right is such that compensation in money would not afford
adequate relief. Illustration: An injunction may be sought by an author of a book from restraining
a publisher from publishing the book without consent.

6. Where injunction is necessary to prevent multiplicity of judicial proceedings. Illustration: Arya

has 7 tenants, out of which, 5 tenants have failed to pay the rent for 5 months, consecutively.
She files a suit against all of them, with the same cause of action. The court may allow an
injunction, in order to prevent multiple proceedings, simultaneously.

Conditions for Section 38 to be applicable

1. There must be a legal right express or implied in favour of the applicant.

2. Such a right must be violated or there should be a threatened invasion.

3. It must be an existing right.

4. The case should be fit for the exercise of court's discretion.

5. It should not fall within the sphere of the restraining provisions contained in or referred to in
Section 41 of the SRA, 1963.

Mandatory injunction

Section 39: When to prevent breach of an obligation it is necessary to compel the performance of
certain acts which the code 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
act. The injunction which commands the defendant to do something is termed as a 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 fulfillment of the legal obligations, for example, and order to pull down a building
which he has already erected to the obstruction of the plaintiff's lights". Illustrations A, by new
buildings obstructs the light to the axis and use of which B has acquired a right under the Indian
Limitation Act, 1963. B may obtain an injunction, not only to restrain A from going on with the
buildings, also to pull down so much of them as obstructs B's light. When a mandatory injunction
is granted under the section, two elements have to be taken into consideration: (i) the court has
to determine what acts are necessary in order to prevent a breach of the obligation; (ii) the
requisite acts must be such that the court is capable of enforcing them.

When is Injunction not granted:

Mandatory injunction will not be granted in the following cases:

1. The compensation in terms of money be would be an adequate relief to the plaintiff.

2. Where the balance of convenience is in favour of the defendant.

3. Where the plaintiff is guilty of allowing the obstructions to be completed before coming to the
court, i.e. where the plaintiff has shown acquiescence in the acts of the defendant. In the case of
Daniya Bai v. Jiwan, the sister constructed a house adjacent to that of her brother and the
brother actively participated in the construction activity and also allowed her to take support of his
wall. The court refused to order demolition since the brother never objected for 2 years and later
changed his mind claiming demolition of the construction.

4. Where it is desired to create a new state of things. It can only be granted to restore status quo.