This article is written by Ashish Sharma of Rajiv Gandhi National University of Law, Patiala. The author has discussed the concept and different types of Injunction issued by the courts.
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”.
Burney defined injunction as, “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 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.
- A judicial process.
- The relief obtained is restraint or prevention.
- The act restrained is wrongful.
Comparison of English and Indian Law
The nature of discretion and the rules of guidance for issuing orders of an injunction are the same in both English and Indian Law. Under English law damages in substitution for an injunction may be given if:
- The injury to the plaintiff’s legal rights is small;
- The injury is one which is capable of being estimated in money;
- The injury can be adequately compensated by a small payment; and
- The case is one in which grant of an injunction would be oppressive to the defendant.
In India also some of these rules are incorporated in sections of the Specific Relief Act, 1963.
Types of an Injunction
There are basically two types of injunction 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 which reads as:
“(1) Temporary injunctions are such as to continue until a specified time, or until further order of the court and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.
(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act which would be contrary to the rights of the plaintiff”.
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:
- 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.”
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.
- Injunction to restrain, repetition or continuance of breach
(1) 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.
It is to be noted that grant of an injunction is at the discretion of the court i.e. 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”. Therefore the court will grant a temporary injunction if the following conditions are satisfied by the case:
- The plaintiff must be able to establish a prima facie case. He is not required to establish the 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.
- 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 balance of convenience requires that the injunction should be granted and compensation in money would not serve an adequate relief.
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 analysis, 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.
In Ishwarbhai v Bhanushali Hiralal Mohanlal Nanda case where in a suit for specific performance, there was no prayer for a decree of perpetual injunction restraining the defendant from transferring the suit land by way of sale till the disposal of the suit. But the plaintiff in a suit prayed for a temporary injunction which was not granted because of the settled principle.
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. In simple words, 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 judgement. 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.
Section 38 of the Specific Relief Act, 1963 specifies certain circumstances under which permanent injunction may be granted. Section 38 with the head ‘Perpetual injunction when granted’ reads as,
“(1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existed in his favour or by implication.
(2) When any such obligation arises from the contract, the court shall be guided by the provisions and rules contained in chapter II (specific performance).
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant the perpetual injunction in the following cases, namely-
- Where the defendant is the trustee of the property of the plaintiff.
- Where there exist no standards for ascertaining the actual damage caused, or likely to be caused by an invasion.
- Where the invasion is such that compensation in money would not afford adequate relief.
- Where the 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;
- Should fall within the sphere of restraining provisions (referred to in section 41 of the specific relief act).
- ‘A’ lets certain land to ‘B’ and ‘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. Any of the shareholders may sue for an injunction to restrain them.
Section 38 expressly states that where an obligation arises from contract, the court shall be guided by the rules and principles given in connection with the specific performance of contracts. Thus, a perpetual injunction will be granted to prevent a breach of contract only in those cases where the contract is capable of specific performance (section 41(e)).
However, section 42 says that where a contract compromise of a positive agreement to do something and negative agreement not to do a certain act, whether expressly or impliedly, the fact that positive part is not capable of specific performance will not prevent the court from of enforcing the negative part by means of an injunction.
The crux of this section is that where an agreement contains both affirmative and negative agreement, the court may enforce the negative agreement if a positive agreement is incapable of specific performance and may restrain a party from committing a breach of the negative part.
The court may grant a permanent injunction where the defendant invades or threaten to invade the plaintiff in the following cases:
- Where the defendant is a trustee of the property for the plaintiff.
- Where there exists no measure to ascertain the loss or actual damage caused. For example, ‘A’ pollutes the air with smoke so as to interfere with the physical comfort of Band C, who carries on business in the neighbourhood. ‘B’ and ‘C’ may sue for an injunction to restrain ‘A’ from polluting the air.
- Where the invasion is such that compensation in terms of money is not an adequate relief. For example, ‘A’ a professor deliver lectures to his students, being his own literature composition he does not communicate them to the whole world. These lectures are the property of the professor and he is entitled to restrain the students from publishing without his contents.
- Where it is necessary to prevent a multiplicity of judicial proceedings.
Section 39 of the Specific Relief Act, 1963 with the head ‘Mandatory injunctions’ reads as, “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.”
Two elements have to be taken into consideration when a mandatory injunction is granted. The two elements are:
- The court has to determine what acts are necessary to prevent the breach; and
- The requisite acts must be as such as the court is capable of enforcing.
Disobedience of Injunction
Rule 2-A of Order 39 and Section 94(c) of the Civil Procedure Code provide for consequences of disobedience of an injunction. Section 94(c) provides that, “In order to prevent the ends of justice from being defeated the Court may if it is so prescribed grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property is attached and sold.”
Rule 2-A of Order 39 provides that,
“(1) In case of disobedience of any injunction granted under Rule 1 and Rule 2 or breach of any of the terms on which injunction was granted, the court granting the injunction or making the order, or any court o which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release.
(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time if the disobedience continues, the property attached may be sold.”
There are cases in which the nature of agreement does not admit specific performance, nor damages likely to serve the purpose. In such cases, the court may restrain the party threatening the breach by way of an injunction. Further, it should be noted that an interim injunction can only be granted when a perpetual injunction is prayed for in a suit.