CHAPTER-VII
PREVENTIVE RELIEF
The preventive relief in the form of injunction has been dealt with in Chapter VII and VIII of the specific Relief Act 1963. An injunction is a judicial process whereby a party is ordered to refrain from doing or directed to do a particular act or thing. In the former case, it is called a restrictive injunction and in the later, a mandatory injunction. Injunction is the means for granting specific relief by prevention of a party from doing that which he is under an obligation not to do. An injunction as is well known an equitable relief and based on well known maxim of the law of equity i.e. he who seeks equity must do equity. The law as contained in the Specific relief Act is governed by aforesaid principle.
In the case of Mrs.Poonamvs Sh. Krishan Palon 20 November, 2014 held that “It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.” the Court also resorted the decision and observation given by the Hon,ble Supreme Court that is settled law that a trespasser cannot seek injunction against the true owner, stating that an injunction cannot be granted in favour of a person who is a trespasser against the true owner. Who seeks equity must do equity.
An injunction has three characteristics:-
- It is a judicial process
- The object attained thereby is restraint or prevention and in some cases of doing certain acts
- The thing restrained or prevented is a wrongful act.
Preventive relief is said to be such a relief by which a person is prevented to do an act, which is not validly liable to do. 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.
Example - ‘X’ is constructing a wall in Y's Land. At the suit of Y by providing him preventive relief X can be prohibited to do so because X is not legally liable to do so.
INJUNCTIONS UNDER SRA
Following types of Injunctions are granted by the Court.
1. Temporary and Permanent Injunctions (Sections 36 & 37)
2. Perpetual Injunctions (Section 38)
3. Mandatory Injunctions (section 39)
4. Damages in lieu of or in addition to Injunction (Section 40)
5. Injunction to perform a negative covenant (section 42)
SECTION 36- HOW PREVENTIVE RELIEF CAN BE GRANTED?
According to Section 36 of the Specific Relief Act, 1963 Preventive Relief is granted at the discretion of the Court by Injunction, temporary or perpetual. A preventive relief (injunction) is an order or command of the Court preventing a party from doing something which he is under a legal duty not to do. For instance, every person is legally bound not to commit trespass or not to defame a person, and, therefore, the court may issue an injunction preventing a party from committing a trespass, or defaming someone. Thus The Preventive Injunction wills be granted on sole discretion of the court, which will be based and guided by sound and reasonable judicial principals.
Executive Committee of Vishya Degree College, ShamliVs. Lakshmi Narayan, AIR1 976 SC 888:
In this case, the court held that the relief of Injunction cannot be granted or obtained as of right, the granting of relief or injunction is discretionary. The relief has to be granted by the court according to sound legal principles and ex debilojustitiae.
SECTION 37- TEMPORARY AND PERPETUAL INJUNCTIONS
Temporary Injunctions or Interim Injunctions- these injunctions are those which remain in force until specified time or till date of next hearing of the case, or until further orders of the court. Such injunctions can be granted at any stage of the suit and are governed by Order 39 of the Code of Civil Procedure, 1908 and not by Specific Relief Act, 1963.
OBJECT
The primary purpose of temporary or interim or sometimes referred to as interlocutory injunctions is the preservation of the status quo of the property (subject-matter) in dispute until the legal rights and conflicting claims of the parties before the court are adjudicated. Its purpose is to prevent the dissolution of the plaintiff’s rights, which in nutshell is a means to provide immediate relief to the plaintiff.
Gujarat Bottling Co. Ltd. vs. Coca Cola Company 1995(5) SCC 545
The object of the interlocutory injunction is to protect the plaintiff against injury by violation of is right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.
Hampstead & Suburban Properties Ltd. v DioneDous (1969) 1 Ch. 248
Applications for interlocutory injunctions are subject to the balance of convenience’ test except in cases where there is “a plain and uncontested breach of a clear covenant not to do a particular thing”
Padmanabhan v Thomas AIR 1989 Ker 188
A suit for injunction is an equitable remedy and if the plaintiff has acted in an unfair or aninequitable manner, he would not be entitled to the injunction. It cannot be said that a temporary unlawful possession obtained by an unlawful act is sufficient for maintaining such suit. Thus, where the plaintiffs broke open the lock, forcibly trespassed into the room, and attempted to get it into their possession, the plaintiffs’ dealing was unfair and inequitable and therefore equitable remedy under this Act should be denied to them.
Permanent Injunction - Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. Thus, for obtaining a permanent injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the injunction is granted by means of judgment. A permanent injunction therefore finally decides the rights of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids the defendant to assert a right which would be contrary to the rights of the plaintiff.
In other words permanent injunctions are granted by a way of decree, as it is supposed to be final, creating an obligation on the defendant to either restrain from doing an act or an omission or compels him or her to act or omit. Thus, the defendant is enjoined with the assertion of the right of the plaintiff, failing to abide by it or act contrary to it will result in infringement of the plaintiff’s right.
In SurtaNath Singh v. Khedu Singh 1994it was observed that "The grant of injunction is discretionary, the same must be exercised on settled principles of law to advance the cause of justice. It is subject to correction by the appellate Court.
ParulBala Roy v Srinibash 1952 A. Cal. 364The prohibiting power of equity therefore extends through the whole range of rights and duties which are recognized by law and would be applied to every case of intended violation. Thus, imposition of an illegal tax by a municipal committee is a breach of an obligation. Further, a vendor of land is under a duty to a purchaser to disclose latent defects which the purchaser could not with due diligence discover; if the vendor fails in his duty he does not commit a breach of contract, but he does commit a breach of an obligation.
DIFFERENCE BETWEEN TEMPORARY AND PARMANENT INJUNCTION-
Temporary injunction | Perpetual injunction |
For a specified time and may be granted at any point during the suit. | By the decree of the court, by the examination merits of the case. |
Order 39 (Rules 1 to 5) of CPC governs temporary injunctions. | Sections 38 to 42 of SRA governs perpetual Injunctions |
Is non-conclusive and short run. | Is Final, Conclusive and Long Run. |
May only focus on the Plaintiff‘s side. | Focuses on the Plaintiff as well as the Defendant. |
May be revoked by the court. | Is non-revocable by the court, though appealable |
CHAPTER-VIII
PERPETUAL INJUNCTIONS
Chapter VIII of the Act contains Sections 38 to 42 dealing with perpetual injunction.
SECTION 38- PERPETUAL INJUNCTION WHEN GRANTED
This section has to be read with section 41. Perpetual Injunctions may be granted at the discretion of the court, to prevent the breach of an obligation existing in the favour of the plaintiff. Such obligation can be made either expressly or by implication. Whenever the defendant invades or even threatens to invade the plaintiff’s right to property or the enjoyment thereof, the court may grant a Perpetual Injunction to the plaintiff in the following situations:
1. Where the defendant is a trustee of the property for the plaintiff.
2. Where there is no standard for ascertaining the actual damage caused, or likely to be caused, to the plaintiff, by invasion of his rights.
3. Where the invasion of the plaintiff’s right is such that compensation in money would not afford adequate relief.
4. Where injunction is necessary to prevent multiplicity of judicial proceedings
Requirements of Applicability
The conditions pre-requisite for the application of this section are-
- There must be an expressed or implied legal right in favour of the plaintiff;
- Such a right must be violated or there should be a threatened invasion;
- Such right must be an existing one;
Illustrations
- ‘A’ lets certain land to ‘B‘. ‘B‘contracts not to dig sand and gravel. ‘A‘may sue for an injunction to refrain ‘B’ from digging in violation of the contract.
- Where the directors of the company are about to pay a dividend out of capital then any of the shareholders may sue for an injunction to restrain them.
SECTION 41- INJUNCTION WHEN REFUSED
This section was amended as per 2018 amendment. In the Amendment, after Clause (h), the following Clause “ha” shall be inserted.
“Section 41 (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.”
The amendment in this section adds to its list that the court can refuse to provide the injunction when it would impede or delay the infrastructure project. This amendment has been in consonance with Section 20A. The legislature through this amendment has given prime importance to the infrastructure projects as due to these suits and injunctions the projects remain incomplete and it affects the general public. Thus restrictions have been laid down with regards to the infrastructure projects.
In furtherance to amendment to Section 41, a Schedule has been inserted which lists down the categories of projects and infrastructure sub-projects which are to be covered by Section 20A and Section 41(ha). Thus the restrictions and provisions mentioned in Section 20A and 41(ha) will be applicable to all the things mentioned in the Schedule.
When injunction cannot be granted
In following cases perpetual injunction cannot be granted;
(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent multiplicity of judicial cases.
(b) To restraint any person from insulting or prosecuting any proceeding in a court not subordinate to that from which injunction is sought.
(c) To restraint any person from applying any legislative body.
(d) To restraint any person from instituting or persecuting any proceeding in a criminal matter.
(e) To prevent breach of a contract, the performance of which would not 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 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.
(i) When conduct of plaintiff or his agent is such to disentitle him to the assistance of the court.(j) When the plaintiff has not personal interest in the matter.
The provisions of Section 41 is not exhaustive a refusal of injunction will depend on the discretion of the court.
SECTION 39- MANDATORY INJUNCTION
Section 39 of the Specific Relief Act, 1963 prescribes that, ―When to prevent breach of an obligation it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also compel the performance of requisite acts.”
“Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned”
A mandatory injunction is defined by Salmond as¯“an order requiring the defendant to do some positive act for the purpose of putting an end to a wrongful state of things created by him, or otherwise in the fulfillment of his legal obligations.”
Object of mandatory injunction
The object of a mandatory injunction is to restore him to the original condition and not create a new state of things. It is a most exceptional remedy and one which is never to be applied except with the greatest safeguard for the prevention of waste, as well as injustice.
Illustrations
- A, by new building, obstructs lights to the access and use of which B has acquired a right under the Indian 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 as obstructs A’s lights.
- A threatens to publish statements concerning B which would be punishable under the Indian Penal Code. The court may grant an injunction to restrain the publication, even though it may be shown not to be injurious to B’s property.
Elements of section 39
In granting a mandatory injunction under the Specific Relief Act two elements have to be taken into consideration.
1. First, the Court has to determine what acts are necessary in order to prevent a breach of the obligation.
2. Secondly, the requisite acts must be such as the Court is capable of enforcing. In a suit for mandatory injunction it is necessary to prove special injury or substantial damage.
Before a suit for mandatory injunction can be filed, there must be an obligation on the part of the defendant to perform certain acts, whether it is not alleged that other party has committed a breach of an obligation on his part as the case is merely one of trespass, the plaintiff's remedy to file a suit for possession of the land and a suit for mandatory injunction cannot be filed without suing for possession of the land. The obligation must be a legal obligation and not a mere moral duty.
An injunction is, in its nature, prohibitory. The defendant is first called up 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 breach of obligation on his part. The object in every case is to compel the defendant to restore things to their former condition. This type of injunction will be granted to prevent more injury and damages to the plaintiff.
DorabCawasji Warden vs. CoomiSorab Warden AIR 1990 S.C.867
The guidelines for interim mandatory injunctions are laid down -
- The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
- It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
- The balance of convenience is in favour of the one seeking such relief.
In SakthiDurga Builders & Developers vs. P.S. Raman, 2007(3) CTC at page 163(D.B.), the Court held that interim mandatory injunction can be granted only when there is a strong prima facie case apart from other aspect regarding irreparable loss and the balance of inconvenience and tests to be satisfied are far more stringent in case of an interim mandatory injunction and can be granted only in exceptional cases'.
SECTION 40- DAMAGES IN LIEU OF, OR IN ADDITION TO, INJUNCTION
When a plaintiff sues for Perpetual Injunction or a Mandatory Injunction, he may also claim damages, either in addition to, or in substitution for, the injunction, and the court, if it thinks fit, award such damages.
An injunction or damage are not alternate remedies but can be granted at the discretion of the court.
The damages cannot be granted unless the plaintiff has claimed damages in the plaint or in proceedings he will be allowed to amend the plaint by incorporating clause for damages.
Conditions
Following conditions are required for seeking damages in addition to injunctions:
- The plaintiff in addition to or substitution to a suit praying perpetual injunction or mandatory injunction may claim damages & the court may if it deems fit to award such damages
- For the plaintiff to claim damages as relief in his plaint only if no such damages have been claimed in the plaintiff, then the court shall allow the plaintiff to amend its plaint on such terms it prescribes.
- If the suit, favouring the plaintiff to prevent the breach of an obligation stands dismissed, it shall create a bar on his or her right to sue for damages for such breach.
SECTION 42- INJUNCTION TO PERFORM NEGATIVE AGREEMENT
Section 42, Specific Relief Act, 1963, wherein a contract, it stipulates (expressly or impliedly) either to do certain an act in affirmative or in negative, there persists a circumstance that the court is unable to assert the specific performance of such act, it shall not preclude it from granting an injunction, only if the plaintiff holds his or her end of the bargain, i.e. performing his or her reciprocal promise.
Essentials of Section 42
Section 42 is an exception to the provisions contained in Section 41(e). The essential requirements of Section 42 are:
1. The contract consists of two agreements i.e. an affirmative agreement to do a certain act and a negative agreement not to do a certain act.
2. The negative part is capable of being separated from the rest of the contract.
3. The applicant must not have failed to perform the contract so far as it is binding on him (proviso to the section
Illustration
A contracts with B that, in consideration of Rs.1,000 to be paid to him by B on a day fixed, he will not set up a certain business within a specified distance. B fails to pay the money. A cannot be restrained from carrying on the business within the specified distance.
CONCLUSION
The general rule is that injunction can’t be claimed as a matter of right, rather it solely depends on the discretion of the courts. The concept of injunction as a “soft-yet-effective remedial measure” in the legal discourse has been adopted from Common Law’s doctrine of equity. The concept of injunction as a “soft-yet-effective remedial measure” in the legal discourse has been adopted from Common Law’s doctrine of equity. The rationale behind the grant of injunction is on the same judicial testing parameters that are:
- Prima Facie case;
- Balance of Convenience; and
- Irreparable Injury.