The Specific Relief Act, 1963

PART III

 PREVENTIVE RELIEF

 Chapter VII – Injunctions Generally

 (Sections 36 – 37)

PREVENTIVE RELIEF:

Specific relief afforded by means of injunction, temporary or perpetual is called preventive relief. Injunction is a form of specific relief which the Courts grant when pecuniary compensation would be inadequate or altogether futile. The object of granting injunction is to restrain the doing of an act in order to prevent future or threatened injuries.

SECTION 36 –  PREVENTIVE RELIEF HOW GRANTED

Injunction Defined

An Injunction is a judicial process whereby a party is required to do, or to refrain from doing, any particular act. It is a relief in the form of an order of the court addressed to a particular person that either prohibits him from doing a particular act which is called as prohibitory injunction; or orders him to perform certain act which is known as mandatory injunction. Relief of injunction cannot be claimed as a matter of right. It is discretionary and equitable relief.

Halsburydefines an injunction as a judicial process whereby a party is ordered

  • to refrain from doing or
  • (ii) to do a particular act or thing.

 Characteristics of Injunction

 An injunction has three characteristic features, viz.

  1. it is a judicial process;
  2. the object attained thereby is restraint or prevention; and
  3. the thing restrained or prevented is a wrongful act.

Injunction and Specific Performance

Reliefs by way of specific performance and injunction belong to same branch of the law. The difference between the two, however, lies in the following respects: (i) Specific performance is designed to order the defendant to do the very thing he promised to do under the contract, i.e., he is compelled to perform an active duty while injunction is designed to prevent future or threatened injuries or wrongs and as such prevents the violation of a negative duty, (ii) Specific performance only relates to contracts, but injunction relates not only to contracts but also to torts. (iii) A decree for specific performance aiming to enforce some specific act is, therefore, the converse of a decree for injunction, which forbids the performance of some specific acts.

M/s H. M. Kamaluddin Ansari and Vijay Saw Mills v. Union of India, (1983) 4 SCC 417 The Supreme Court held that the Court should not issue an injunction which in operation is contradictory and ineffective. It must be capable of being carried out.

Section 37 – TEMPORARY AND PERPETUAL INJUNCTION

Distinction between Temporary and Perpetual Injunction

  1. A temporary or interlocutory injunction is to continue until a specified time, or until the further order of the Court. It is granted at any period of a suit and is regulated by the Code of Civil Procedure. A perpetual injunction, on the other hand, can only be granted by a decree made at the hearing, and upon the merits of the suit.
  2.  An interlocutory or temporary injunction is merely provisional in its nature and does not conclude or determine a right while the perpetual injunction finally determines the rights of the parties and forms part of the decree made at the hearing, which perpetually restrains the defendant from the assertion of a right or from the commission of an act which would be contrary to the rights of the plaintiff.
  3. A temporary injunction can be granted at any period of a suit during its pendency; but a perpetual injunction is granted at the final hearing of the suit.
  4. A temporary injunction may be granted to the plaintiff on his making out a prima facie case in his support, a perpetual injunction is granted upon the merits of the suit.
  5. A temporary injunction is regulated by the provisions of the Code of Civil Procedure, but a perpetual injunction is governed by the provisions of the specific Relief Act.
  6. A temporary injunction is a mere order; but a perpetual injunction is a decree, it being granted by the decree made at the hearing and upon the merits of the suit.

TEMPORARY INJUNCTION

 Comment

A temporary injunction is an order by which a party to an action is required to do, or refrain from doing, a particular thing until the suit is disposed of or until further orders of the Court. A temporary injunction is interim in nature, granted on an interlocutory application of the plaintiff. Its object is to preserve matters in status quo until the case can be tried. It does not assume finally to dispose of the right, and will only impose such restraint as may suffice to stop the mischief complained of or keep things as they are at the moment. The issue of temporary injunction is governed by the Code of Civil Procedure. [Order: XXXIX,CPC]

The granting of a temporary injunction is a matter of discretion – which means judicial discretion of the Court.

A.C. MUTHIAH VS BCCI, 2011,SC It was held that where the grant of interim relief amounts to decreeing the suit without adjudicating the claims raised in the pleadings of the parties, such a course is not permissible at all. The Apex Court has deprecated the practice of grant of interim relief, which amounts to decreeing the suit in several reported decisions.

PROVISIONS UNDER CODE OF CIVIL PROCEDURE, 1908

Section 94(c), Code of Civil Procedure, 1908, states that the court in order to meet the ends of the justice has discretion in granting a temporary injunction & if any person is guilty of disobedience of such injunction order, it may commit the defaulter to the civil prison & order for sale or attachment of his or her property.

Section 95, Code of Civil Procedure, 1908 provides that where, in any suit temporary injunction granted under section 94 and it appears to the court that such injunction was prayed on insufficient grounds or the suit of the plaintiff fails due to no reasonable or probable ground for instituting it, the defendant may apply before the court, and court may award compensation to the defendant.

Order XXXIX rule. 1 to 4 states the legal and procedural requirements to be fulfilled for granting temporary injunction and consequence of disobedience or breach of injunction.

Essential conditions of Temporary Injunction

Principles governing issue of Temporary injunction – Before a Court issues a temporary injunction it must be satisfied with regard to the following matters:

  1. The Court will first see that there is a bona fide contention between the parties and then which side, in the event of success, will lie the balance of inconvenience if the injunction does not issue.
  2. The Court must be satisfied that the applicant has made out a prima facie case for the issue of an interim injunction.
  3. The Court must be satisfied that there is a likelihood of the plaintiff suffering from an irreparable injury if the injunction is not granted.
  4. Where doubt exists as to the right and when an injunction might be a great hardship on the defendant, an interlocutory injunction will be refused on the defendant undertaking to keep an account.

To sum up, before granting a temporary injunction, the Court must be satisfied that the plaintiff has a prima facie case; that the Court’s interference is necessary to protect him from irreparable or at least serious injury; that the balance of convenience is in favour of the person who asks for the injunction and that there is no other sufficient or adequate remedy open to him by which to protect himself.

SECTION 38 –  PERPETUAL INJUNCTION WHEN GRANTED

A perpetual injunction i.e., permanent injunction, prohibits a party forever from doing the particular act and it can be granted only at the end of the trial after hearing both the parties on merits.

Section 38 (1) of the Specific Relief Act lays down that, subject to the other provisions 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. Obligation includes every duty enforceable by law.

When any such obligation arises from contract the Court shall be guided by the rules and provisions contained in Chapter II of the Act, [viz., relating to specific performance of contracts: Sections 9-25] When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely:

  1. where the defendant is a trustee of the property for the plaintiff. A trustee threatens a breach of trust. His co-trustees, if any, should, and the beneficial owners may, sue for an injunction to prevent the breach.
  2. Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion. Thus, if the defendant prevents the plaintiff from carrying on his business in his premises by closing the windows of the plaintiff under easement acquired by the plaintiff, it will be a case of the grant of perpetual injunction on account of the substantial and wrongful injury to the plaintiff’s rights.
  3. Where the invasion is such that pecuniary compensation would not afford adequate relief. A pollutes the air with smoke so as to interfere materially with the physical comfort of B and C, who carry on business in a neighboring house, B and C may sue for an injunction to restrain the pollution.
  4.  It is to be granted where the injunction is necessary to prevent a multiplicity of judicial proceedings. The inhabitants of a village claim a right of way over A’s land. In a suit against several of them A obtains a declaratory decree that his land is subject to no such right. Afterwards each of the other villagers sues A for obstructing his alleged right of way over the land. A may sue for an injunction to restrain them.

PRE-REQUISITE FOR THE APPLICABILITY

  • There must be a legal existing right in favour of the plaintiff;

·  Such a right must be violated or the defendant invades or threatens to invade plaintiff’s right;

  • Such right must be a present existing right;

·  The case should not fall within the ambit of the restraining provisions provided under section 41 of Specific Relief Act,1963

In State Bank of Bikaner v. Ballabh Das and Sons AIR 1984 Raj. It was held that injunction cannot be granted where no obligation is spelt out. The word ‘obligation’ is very wide in its application. It has the meaning as provided by section 2(a) of this Act i.e every duty enforceable by law. It is a bond which constrains a person to do or suffer something. It may arise from contract or may be in the nature of a trust, or an obligation the breach of which amounts to a tort or civil wrong, or any other legal obligation. It is a duty enforceable by law.

WHEN A SUIT FOR INJUNCTION AND DECLARATION WOULD LIE? 

  • Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 
  • Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 
  • Where the plaintiff is in possession, but his title to the property is in dispute,or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.

SECTION 39 – MANDATORY INJUNCTION

A mandatory injunction is 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 fulfillment of his legal obligation. It is a command to undo that which has been done or to do a particular act to restore things to their former condition.

A few illustrations will be helpful in understanding the principle underlying the issue of mandatory injunction. A, by new buildings, obstructs lights to the access and use of which B has acquired a right under the Indian Limitation Act, Part IV. B may obtain an injunction not only to restrain A for going on with the buildings, but also to pull down so much of them as obstructs B’s lights.

Requirements of Section 39

 It is, however, necessary that before a mandatory injunction can be granted the Court must find out that there is a legal obligation on the part of the defendant to perform certain acts and that the Court is capable of enforcing the acts the performance of which it orders.

One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co-owner on a joint land, did so at earliest or waited till the constructions had been completed. In the first case injunction would normally be issued, whereas if the construction had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that by their conduct of not objecting at the earliest stage, the joint co-owners had induced the maker of constructions to believe that he could make it, and in doing so spent money and effort.

Another test for determining whether an injunction should be issued requiring the removal of the constructions is that where the defendant has expended considerable sums, of money over a construction, the Court may take that factor into account while deciding the suit.

In Assam State Electricity Board v. N.W. Cachar Tea co. Ltd. AIR 2000 Gau It has been held that even mandatory injunction may be granted in an appropriate case without notice to the other side by dispensing with the notice in a case where mandatory injunction if not granted will have grove injustice.

SANKAR KUMAR AND ANR. VS MOHANLAL SHARMA, AIR 1998 ORI 117 In a suit where the plaintiff is claiming a mandatory injunction on the basis that the disputed land belongs to him, the onus is definitely on the plaintiff to prove his own case. Law is well settled that merely because the defendants fail to prove their case, the plaintiff’s suit is not to be decreed and the plaintiff has to stand or fall on the basis of strength of his own case.

Mandatory and Prohibitory Injunctions

 An injunction is a judicial process whereby a party is ordered to refrain from doing or is ordered to do particular act or thing. In its negative form it is prohibitory, while in its positive form it is mandatory. Thus, when a party threatening to invade the legal or equitable rights of another is restrained from continuing or commencing such wrongful act, the injunction so issued is termed a prohibitory injunction. But when a command issues to undo that which has been done or do a particular act to restore things to their former position, the injunction is termed a mandatory injunction. An illustration will make the point quite clear. A is B’s medical adviser. He demands money from B, which A declines to pay. A then threatens to make known the effect of B’s communications to him a patient. This is contrary to A’s duty and B may not only obtain a prohibitory injunction but also an injunction ordering A to destroy all written communications made by B as patient of A.

By Anushka Sharma, Content Board, All India Legal Forum

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