This article is written by Pruthvi Ramakanta Hegde, a lawyer. This article emphasises the perpetual injunction, its scope and limitations, when it is granted, laws dealing with the perpetual injunction, and legal tools with case law.

This article has been published by Shashwat Kaushik.

Introduction 

“Stop and never do that again!” This is precisely what a perpetual injunction under law reflects. Perpetual injunctions have their origins in the English legal system, where courts of equity would issue such orders to prevent ongoing harm or violations of rights when monetary compensations are insufficient. The perpetual injunction is named final relief; it is like a permanent no to doing something that is causing harm. It is also known as a permanent injunction. This legal tool is used when other solutions won’t fix the issue, and only stopping action will help. Perpetual injunctions are the cornerstone of the legal system. Moreover, perpetual injunction is a discretionary relief and it is not claimed as a matter of right. The Honourable Supreme Court in the case of Murlidhar Agarwal And Anr vs. State of Uttar Pradesh And Ors (1974), exemplifies the same aspect that perpetual injunctions are issued as per the discretionary nature, considering the specific circumstances and facts of each case.

What is a perpetual injunction

Perpetual injunctions are covered under Section 37(2) of the Specific Relief Act of 1963. Accordingly, a perpetual injunction is the decree granted by the judge after the trial. This decree permanently prevents the defendant from asserting a particular right or engaging in any action that violates the plaintiff’s rights. It forbids the defendant from taking actions or making claims that infringe on the plaintiff’s legal rights.

For instance, there’s a property dispute between two neighbours. Neighbour A claims that a certain area of land belongs to them, while neighbour B insists it’s theirs. Neighbour A files a lawsuit, asking for a perpetual injunction. If the court finds it proper and deems fit to grant the perpetual injunction, it will grant the same by passing a decree on this behalf. It means that neighbour B is permanently forbidden from building anything on that disputed land or claiming it as his own. This will protect A’s rights to such areas of land.

Laws dealing with perpetual injunction

The perpetual injunction is primarily guided by the provisions and principles of the Specific Relief Act, 1963. The important sections under this Act that govern the perpetual injunction are as follows:

Section 38 

Section 38 of the Act covers when the perpetual injunction is granted. The section allows the court to issue an order that permanently stops someone from doing a certain action. 

However, when the obligation for perpetual injunction arises from a contract, Section 38(2) specifies that the court will use the rules and guidelines mentioned under Chapter II of the law to make decisions about it. 

Section 41 

Section 41 highlights when the court cannot grant a perpetual injunction. In such circumstances, the court will grant the perpetual injunction by considering the factual aspects of each case.

Perpetual injunction as a decree

The decree, as per Section 2(2) of the Code of Civil Procedure, 1908, is considered a formal decision made by the court of competent jurisdiction that encompasses the legal rights of the parties with regards to matters in dispute. The decisions are considered conclusive and final and will bind the parties. Whereas, as per the meaning of the perpetual injunction, it is considered a final decision and permanent relief that commands a person to refrain from doing something permanently. This injunction resembles the character of a decree. The court decisively solves the dispute by granting a  permanent halt to the harmful actions.

Perpetual injunction and res judicata

Res judicata is a legal principle that means a matter has already been judged. It refers to the rule that once a matter has been finally decided by a competent court, it cannot be litigated again between the same parties on the same subject matter. If a court has previously granted a perpetual injunction in a case, it could establish a precedent that prevents the same parties from relitigating the same issue in a subsequent case. 

For instance, if party A sue’s party B for a perpetual injunction, that decision of the honourable court is a final judgement. If party A could raise the defence of res judicata, party B cannot bring up the same matter again.

When a perpetual injunction is granted

As per Section 38 of the Specific Relief Act 1963, a perpetual injunction can be granted under the following circumstances:

Enforcement of obligation

The court issues a perpetual injunction to stop someone (defendant) from breaking an obligation that they have towards the plaintiff. Such an obligation could either be stated explicitly or inferred from the situation. The main intention is to ensure the plaintiff’s right and also to make such an obligation fulfilled through granting a perpetual injunction.

For example, if there is an agreement between A and B wherein B has promised to do something for A, like not building a fence that would block sunlight into A’s backyard, this promise has been expressly stated and agreed upon by B. Now B tries to break such a promise that is expressly stated. In such circumstances, in order to protect the interests of A, the court can issue a special order called a perpetual injunction. 

Defendant is causing or about to cause harm

The court can grant a perpetual injunction when the defendant is causing or about to cause harm to the plaintiff’s legal rights or enjoyment of property. The defendants are legally forbidden from doing such harmful acts. 

Some of the particular situations are:

Acting as a trustee

As per the meaning of trustee, someone is responsible for looking after the property of others and making sure that it’s for their benefit. If the defendant caused or is about to cause harm when looking after the property as a trustee, in such circumstances, the court can order a perpetual injunction to stop the defendant from causing such harm to the plaintiff’s property as a trustee.  

For example, if A has appointed B as a trustee to take care of certain land for A’s benefit, but B, as a trustee, harms or causes danger to A’s property rights and enjoyment of such land by building the damaging structure,. In such circumstances, the court can order a perpetual injunction, and thereby property rights and enjoyment are preserved. 

Hard to measure exact harm

When it’s not possible to measure or determine the exact harm that has been done or might happen due to the harm caused, in such circumstances, the court may order a perpetual injunction. For example, company A has developed a new and innovative software product. Company B, a competitor, started using a similar product that appears to be based on Company A’s technology. Company A believes that Company B’s software is an unauthorised copy of their product and is causing harm to Company A. Company A finds it difficult to precisely measure the exact harm they have suffered because of Company B’s actions. The harm might also continue into the future, making it even more challenging to calculate the exact impact. In such a  situation, A can approach the court for a perpetual injunction as a permanent solution.

Money compensation wouldn’t fix the harm

If the harm caused by the defendant’s action is so severe, it wouldn’t be enough to give the plaintiff money as compensation. In such a situation, the  court might stop such further harm by ordering a perpetual injunction. For e.g. A farmer depends on a pristine lake for irrigation and livelihood. A factory’s chemicals pollute the lake, devastating the ecosystem’s soil. In such circumstances, the money cannot undo the damage. The court stops future harm by granting a perpetual injunction against the factory. The  main reason in such a situation is that compensation is inadequate and prevention is essential.

When stopping the harm helps avoid lot of court cases

If allowing the harmful action causes numerous cases to be brought to court, the court can order a perpetual injunction. In other words, the court might stop the harmful action to avoid a situation where both parties keep going to court over and over again for the same matter. The main intention is to prevent repeated legal actions. For example, if a neighbourhood has a narrow road and Mr. A builds a structure that obstructs the road, causing inconvenience to all residents, instead of each neighbour individually suing Mr. A or their individual problems, the court issues a perpetual injunction against the obstruction. This prevents a cascade of lawsuits and ensures a lasting solution for everyone, sparing the court from handling numerous repetitive cases.

When perpetual injunction can not be granted

As per Section 41 of the Specific Relief Act, an injunction can not be granted by the court:

• To stop someone from continuing with the legal case that they have already started, unless it’s needed to prevent the parties from taking multiple legal actions on the same subject matter.
• When it is going to prevent someone from taking legal action in a higher court. But not from the court subordinate to the one from whom injunction is sought.
• If it is going to restrain someone from taking legal action or a decision from the legislative body.
• To prevent someone from taking criminal legal action.
• To prevent someone from breaching a contract that cannot be specifically enforced. This provision has to be interpreted in conjunction with Section 38(2) and Section 42. Chapter 2 outlines situations where specific performances cannot be enforced, such as those specified in  Section 11(2), Section 14, Section 16, Section 17 and Section 18 of the Specific Relief Act of 1963.

• To prevent an act of nuisance, unless it is clear that such acts are indeed nuisances.
• To prevent ongoing violations when the plaintiff has silently consented.

• If there is another way or relief under the law other than perpetual injunction, in such cases, the court cannot grant perpetual injunction. In K Venkata Rao vs. Sunkara Venkata Rao (1998), the honourable Supreme Court held that perpetual injunction is a court order to stop something. It cannot be ordered when there is an alternative way to solve the dispute. 
• If giving an injunction causes problems for infrastructure projects or services related to them, the court won’t grant an injunction order. They want to make sure that such crucial projects can be continued without any unnecessary obstacles. Section 20A prohibits injunctions in infrastructure project related suits if such would hinder the project’s progress; Section 20B allows the state government to designate civil courts as special courts for handling infrastructure project related suits. Section 20C mandates that these suits must be disposed of within twelve months, extendable by six months, with court recorded reasons.
• If the plaintiff or his agent’s action or behaviour disqualifies from court assistance, the court cannot grant an injunction.
• When the plaintiff has no personal interest in the subject matter of their complaint. In Narandas Moradas Gaziwala vs. S.P am. Papamani and Another (1966) the honourable Supreme Court ruled that in order to grant the perpetual injunction, the plaintiff has to demonstrate that he has a legitimate legal right that requires safeguarding. 

Situations where perpetual injunction cannot be granted

Suits for declaration and injunction

When a person’s ownership over a property is unclear or disputed, simply asking the court for an injunction without requesting a declaration of ownership is not a valid legal approach. This is especially true when both parties involved are claiming ownership. The person seeking relief may need to first establish their ownership through a declaration before seeking an injunction.

Injunction against an alien

An injunction is a legal order that binds a person. However, if the person against whom the injunction is sought is located in a different country, the injunction may not have any practical effect on them because  the court’s jurisdiction is limited to its own geographical boundaries.  

Injunction against breach of contract

An injunction can’t be used to prevent someone from breaking a contract if the terms of the contract can’t be enforced specifically. In other words, if the court can’t ensure the contract is fully carried out as agreed upon, it won’t grant an injunction to prevent its breach.

Injunction and illegal agreements 

If an agreement is against the law, it’s not legally valid, and the court won’t provide an injunction to support it.

Injunction in specific performance cases

In cases where someone is asking the court to make another person fulfil a specific obligation, an injunction might not be granted. If the person asking for the injunction hasn’t shown that they’re ready and willing to fulfil their part of the agreement, the court might not provide the requested relief.

Injunction against manager of family property

The perpetual injunction against the head of a family (manager of the joint property) who is typically not granted when they are acting within their legal rights, such as selling property to cover legal necessities or debt. However, an interim (temporary) injunction can be granted under certain conditions, which may include but are not limited to irreparable harm, public interest, good faith, balance of convenience and any other conditions as the court deems fit. 

Grounds for challenging the decree of perpetual injunction

Though a perpetual injunction is a permanent relief, its legality can be challenged on the following grounds:

Errors of law 

If there is an apparent error in the interpretation or application of legal principles in the decree, it can be challenged. For example, if the court misinterprets the relevant laws or legal precedents, it may serve as a basis for a challenge. 

Lack of jurisdiction

If the court that issued the decree lacked jurisdiction over the matter or the parties involved, the decree could be challenged on these grounds.

Fraud or misrepresentation

If it can be demonstrated that one of the parties engaged in fraud or misrepresentation that significantly impacted the outcome of the case, the decree may be challenged.

New evidence

The discovery of new, relevant evidence that was not available during the original trial could potentially provide grounds for challenging the decree.

Violation of principles of natural justice

If the principles of natural justice, such as the right to a fair hearing, were violated during the proceedings, the decree could be challenged.

Violation of fundamental rights 

If a decree infringes upon the fundamental rights of a party conferred under the Indian Constitution, it may be challenged on these grounds.

Unreasonable or unjust decree 

If the decree appears to be unjust, arbitrary, or unreasonable, it might be challenged based on these considerations.

Landmark case laws

In the R. Rajagopalan alias RR Gopal vs. State of Tamil Nadu (1994) case, Honourable Supreme Court granted a perpetual injunction to a journalist, R.R. Gopal, to prevent the publication of an article about a top ranking police officer in Tamil Nadu. It was claimed as to be a defamatory statement and not allowed for publication since it contains sensitive and personal information. The court recognised the importance of balancing the right to freedom of speech and expression with the right to privacy. While upholding the significance of a free press, the court also acknowledged the need to safeguard an individual’s personal dignity and privacy. The court held that the right to freedom of speech is not absolute and can be subjected to legitimate public interest; indiscriminate exposure of personal affairs should be prevented. The granting of a perpetual injunction in this case underlines the court’s commitment to preserving the right to privacy in situations involving the publication of private matters. 

In Star India Pvt. Ltd. vs. Leo Burnett (India) Pvt. Ltd (2002), the Bombay High Court issued a perpetual injunction. This injunction aimed to put an end to ongoing or future unauthorised use of copyrighted material. The core of the matter was the improper use of the content. The plaintiff owned the copyright, and the defendant had used this copyrighted material in their advertising campaign without obtaining the necessary permission or licence. The Court’s decision emphasised the significance of copyright protection. The Copyright Act, 1957 gives the owner of creative work exclusive rights to use and distribution. Others can’t use this work without proper authorisation. In this case, the defendant violated these rights by using the plaintiff’s material without their permission. To prevent any further misuse of the copyrighted content, the High Court has granted a perpetual injunction. This injunction meant that the defendant was legally barred from using the copyrighted material without proper authorisation in the future. This judgement is noteworthy because it reinforces the importance of respecting IP rights. The court’s decision serves as a reminder that unauthorised use of copyrighted material can lead to legal consequences, including an injunction to stop such infringement.

In Vodafone International Holdings B.V. vs. Union of India (2012), the issue at hand was related to taxation. Vodofone, being an international company, was in dispute with the Indian government relating to tax on specific transactions. The government decided to recover the taxes from Vodafone for such a transaction. The court has granted the perpetual injunction even in tax-related matters and ordered that the government couldn’t continue with its efforts to collect taxes in such a specific deal.

In the Colgate Palmolive (India) Ltd. vs. Hindustan Unilever Ltd. (1999) case, the Supreme Court granted a perpetual injunction to address issues related to comparative advertising and trademarks. In this case, a dispute arose between the companies over their products regarding the use of misleading advertisements and a similar trademark by one of the parties. The court held that the use of a similar trademark could lead to misconceptions and potentially harm the reputation of the other company’s products. The Court issued a perpetual injunction. This injunction restrained the company from continuing to use misleading advertisements and similar trademarks. 

In the case of Lala Durga Prasad And Another vs. Lala Deep Chand And Others (1953), the court emphasised an important principle related to perpetual injunctions. The principle is that if a person is seeking a permanent order from the court to stop someone else from doing something, their legal rights should be very clear and certain. Therefore, the court didn’t grant a perpetual injunction due to a lack of clarity in support of the plaintiff’s legal rights.

In the Gowardhandas Rathi vs. Corporation of Calcutta (1970) case, the Calcutta High Court established that while granting relief in the form of a perpetual injunction, the court needs to examine whether the plaintiff’s rights are at stake or whether the defendant’s actions are conflicting with the plaintiff’s rights. It was also stated  that the court’s decision is rooted in determining whether the defendant’s actions are in contradiction to the plaintiff’s legal entitlements.

In the case of Dhanya Kumar Jain vs. Rajendra Prasad (1978), the court held that when someone asks for a perpetual injunction, they need to prove that they have a valid reason to stop another person from doing something. In this case, the plaintiff wanted to prevent the defendant from opening certain windows because they could see something called chabutra in the plaintiff’s place. However, the court said that just because the defendant could see the chabutra, it didn’t give the plaintiff the right to stop them from opening the windows. The court emphasised that the plaintiff must clearly show a proper cause to get a perpetual injunction, and in this case, they didn’t provide enough reason. So, the court decided that the  plaintiff couldn’t stop the defendant from opening the windows and, therefore, couldn’t get the perpetual injunction.

In the Tarlok Singh vs. Vijay Kumar Sambarwal (1996) case, the plaintiff initially filed a lawsuit asking for a perpetual injunction. Later, they wanted to change the lawsuit into one asking for something specific to be done, which is called specific performance. The court held that a lawsuit for perpetual injunction is not the same as a lawsuit for specific performance. They also noted that if the time limit for filing the lawsuit had already passed when this change was allowed, the court wouldn’t be able to grant the request.

In the Abdul Kardar Haji Hiroli vs. Mrs. Judah Jacob Cohen (1967) case, the court noted that a decree for perpetual injunction is considered a personal decree against defendants. This means that the injunction is specific to those named in the decree and does not automatically affect the property itself. While the case deals with the impact of the legal principle, lis pendens means that when a property is under litigation, any transactions involving that property are subject to the outcome of the litigation. The court held that in cases where lis pendens affect the property transfer, a decree for perpetual injunction indeed impacts the purchaser. This means that when the property is sold out during litigation, the injunction may extend to the buyer if lis pendens applies.

In the Singirikonda Surender vs. Vempati Sathayanarayana (2023) case, the appellant (plaintiff) filed a suit for a perpetual injunction to prevent interference with their possession and enjoyment of certain lands. The plaintiffs asserted joint ownership and possession of the lands, supported by revenue records, and mentioned their attempts to cultivate and clean the land. They stated that the defendants, real estate businessmen, sought to buy the land, but the plaintiff refused, leading to their unlawful attempts to occupy it. The appellate court noted that the suit was solely for a perpetual injunction, not a declaration of title. According to legal principles, if the plaintiff was in possession at the time of filing and claimed a perpetual injunction, they should be granted this relief. However, the trial court mistakenly permitted the defendants to seek recovery of possession, which was inappropriate as no counter-claim was made. 

Conclusion

The perpetual injunction plays a very significant role in protecting the legal rights of the party. In disputes ranging from land to infringement of intellectual property, the disputing party can avail of this injunction. The judiciary has been making notable decisions on this injunction. While seeking the perpetual injunction, the plaintiff needs to establish legal rights and interests over the subject matter. Granting perpetual injunction power is vested with the court’s discretionary power. By considering the facts of each case, the court will decide whether to grant this injunction or not.

Ultimately, perpetual injunction stands as a testament to the legal system’s commitment to safeguarding rights, resolving disputes and providing an avenue for individuals and entities to seek redress for infringement upon their interests.

Frequently Asked Questions (FAQs)

Does the Limitation Act of 1963 apply to perpetual injunctions?

The Limitation Act of 1963 does not apply to the execution or enforcement of the decree granting the perpetual injunction. But the court grants the perpetual injunction only in such exceptional cases. 

Does the perpetual injunction bar the right of appeal?

Though the perpetual injunction is a final decision of the court through decree, it doesn’t bar the opposite party from seeking an appeal against such an impugned order. 

Can perpetual injunction be granted as an interim relief? 

No, a perpetual injunction cannot be granted as interim relief. A perpetual injunction is only granted during the final judgement by passing a decree. A temporary injunction is granted as interim relief.

What is the primary distinction between permanent injunction and temporary injunction?

A permanent injunction is a court order that stops someone from doing some specific actions permanently, whereas a temporary injunction is the court order used to maintain the status quo until a final judgement is passed. A temporary injunction is a short term relief. Moreover, a perpetual injunction is governed as per Section 37(2) and dealt with under Chapter 8 of the Specific Relief Act of 1963, whereas a temporary injunction is governed as per Section 37(1) and dealt with under Order XXXIX of the Code of Civil Procedure of 1908.

References 

• https://districts.ecourts.gov.in/sites/default/files/Subject%20-%20III.pdf

• https://www.lawweb.in/2016/09/basic-concept-of-perpetual-injunction.html
• https://blog.ipleaders.in/injunction-all-you-need-to-know-about-it/
• https://ijtr.nic.in/articles/art25.pdf