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3 views

Injunction

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ttvendr7
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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INJUNCTIONS

Injunctions (Preventive Relief)


A) Introduction
In relation to a breach of contract , the proper remedy against a
defendant who acts in breach of his obligations under a contract
is either damages or specific relief.

The two principal verities of specific relief are


i) Decree of specific performance and
ii) Injunction.
In general, an injunction is the proper method of restraining a
defendant from committing a breach of a negative obligation or
from interfering with the plaintiff’s exercise of his rights under
the contract .

Whereas specific performance is the proper method of


compelling a defendant to perform a positive obligation of his
own under the contract.
B) Aim of Injunction
To preserve and protect the suit property or
otherwise for maintaining the status quo on
prima facie material.
C) Types

Injunctions are of various types : They are :

I) Permanent or perpetual Injunction and

II) Temporary or interim Injunction

On the basis of nature of injunction –

Mandatory( to demolish the wall) and

Prohibitory injunction(to prevent the defendant not to encroach)


Temporary Injunction (Sec.37(1)

• Continue until specified time


• Until the further order of the court
• Interim in nature
• Governed by the civil procedure code 1908
under Order 39 Rule 1
• Can be granted at any period of a suit during its
pendency
• Object is to preserve matters in status quo until
the case can be tried.
Essential conditions of Temporary Injunction

Generally before granting the injunction, the


court must be satisfied about the following
factors:
( Three pillars or Triple test for grant of interim
injunction)
• Prima facie case
• Irreparable loss if injunction is not granted
• Balance of inconvenience if injunction does not
issue
Three Pillars /Triple Test

i) Prima facie case.

The court must be satisfied that there is a bonafide dispute

raised by the applicant, that there is an arguable case for trial

which needs investigation and a decision on merits and on the

facts before the court there is a probability of the applicant

being entitled to the relief claimed by him.


ii) Irreparable injury-

The expression irreparable injury, however, does not mean


that there should be no possibility of repairing the injury. It only
means 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


specific or fixed pecuniary standards for measuring damages.
(M.S.Shelke v Pune Municipal Corporation (1995)3 SCC 33
iii) Balance of (in)convenience--

The court must weigh the competing needs and determine

where the balance of convenience lies.

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.


I. Perpetual Injunction ( Sec.38-42 of Specific
Relief Act)

• Perpetual injunction is an injunction which is


declared as a decree by means of the court’s
judgment
• It finally determines the status of the parties
to the suit.
• Perpetual injunction is a specific relief and also
called as preventive relief.
Section 37(2) defines perpetual injunction according
to which –
1. After hearing of the suit,
2. On merits
3. A perpetual injunction is granted only through a
decree,
4. By such injunction, the defendant is perpetually
restrained from assertion of a right or commission
on any act which is contrary to the rights of the
plaintiff.
When perpetual injunction can be issued.
Section 38 enumerates the distinct conditions only on the satisfaction of which

perpetual injunction can be issued

Section 38(1) provides the general conditions related to issuance of perpetual

injunction, according to which perpetual injunction can be issued only when,

a) There is a legal obligation on the defendant in favour of the plaintiff,

b) The defendant is in breach of such obligation,

c) No exceptional circumstances enumerated under section 41 is existing and

d) In the courts opinion, it is reasonable to issue perpetual injunction to

prevent the defendant from continuing such breach.


Section 38(2) is related to issuance of perpetual injunction in a

case where the concerned obligation arises from any contract

and makes it compulsory in such a case for the court to be

guided by the rules and provisions contained in Chapter II.

Section 38(3) defines the limit of the court’s power to issue

perpetual injunction and empowers the court to issue perpetual

injunction against a defendant invading or threatening to

invade the plaintiff’s right to, or enjoyment of, property, where :-


(a) That the defendant is trustee of the property
for the plaintiff or
(b) where there exists 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.
Mandatory injunction

Injunctions are either prohibitory or mandatory.


Prohibitory injunction puts a stop to something
in progress by forbidding future action and is
regulated by Sec. 38
Mandatory injunction conveys an order to undo
that which has been done or to do a particular
act to restore things to their former condition
and is regulated by sec. 39
Section 39 regulates mandatory injunction and requires the court to

consider the following two points before issuing a mandatory

injunction –

1) Whether to prevent the breach of any legal obligation, it is

necessary to compel the defendant to perform a certain act; and

2) Whether the court is capable of enforcing such act.

The second point clarifies that the court can only order compliance of

such duties which it is capable of enforcing. Hence by a mandatory

injunction, a person cannot be compelled to do such act which depend

of his personal skills ( Kashinah v. Muncipal Board, Agra (1939) 26 AIR

All 375)
Damages in lieu of, or in addition to, injunction

• Section 40 gives the plaintiff the right to claim damages in


lieu of or in addition to injunction.
• The court can in its discretion grant the relief of damages
only it has been sought by the plaintiff.
• It is important to note that if the plaintiff does not claim
damages, then –
a) Neither can the court grant him damages,
b) Nor the plaintiff can file a fresh suit for damages.
• This provision has been made to prevent multiplicity of
suits. However, the plaintiff shall be allowed to amend his
pleadings to include a claim of damages
When injunction can be refused
1. Stay of pending judicial proceeding
2. Stay of proceeding in court not subordinate
It was held that the cheques had already been used and the
defendants, as holder in due course, had a right to use them.
Moreover, the plaintiff had filed the present suit after a criminal
case was instituted against him on dishonor of cheques. The stay
of proceedings could not be permitted in view of section 41(b),
specific relief Act. The suit for issue of injunction was therefore
dismissed. ( Capt. Anil Kumar Singh v. Jalveen Rosha)
3. Restraining any person from applying to legislative body

4. Stay of proceedings in criminal matter

The High Court however has the power to stay criminal

proceedings in the court of Magistrate until the disposal of civil

proceddings in which the issue of criminal proceeding is to be

decided ( Rajkumari v. Bumasundari, 25 Cal 610)

5. No issue of injunction to prevent a breach of contract


6. No injunction to prevent doubtful case of nuisance

A brick grinding machine, which generated dust and polluted the

atmosphere and caused physical inconvenience to a doctor in

the neighbour amounted to nuisance and injunction was issued

to stop such activity ie nuisance ( Dr. Ram Raj Singh v. BabulAIR

1982 All 285)

the plaintiffs sued the defendants for a permanent injunction to

restrain the exhibition of the film ‘ Jai Santodhi Maa’ by them. It

was contended that the plaintiffs feelings were hurt by the film
as goddesses Saraswati, Lakshmi and Parvati were shown as

being jealous and were ridicule. It was held that the plaintiffs

failed to prove that the exhibition of the said film was generally a

nuisance. If only the religious sentiments of the plaintiffs were

hurt that did not amount to nuisance. The plaintiffs were free

not to see the movie again. Issue of injunction to restrain the

defendants from exhibiting the film was refused by the court.

( Ushaben v. Bhagyalakshmi Chitra MandirnAIR 1978 Guj 13)


7. No injunction to prevent continuing breach when the
plaintiff has acquiesced
8. No injunction when equally efficacious relief is
otherwise available
9. Plaintiff’s conduct may disentitle him to an injunction
10. When the plaintiff has no personal interest in the
matter

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