Types of injunctions

This article is written by Rishabh Pandey from Guru Gobind Singh Indraprastha University, New Delhi.

Introduction

An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is threatening or attempting to commit, or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an action fit law.[1]

For example, if it so happens that a person is demolishing a building you have possible claims on, you may ask the competent court to order such person to not demolish the building until the trial for the claim of the building is complete and judgement goes in his favour.

The law of injunction has been provided for by the Specific Relief Act, 1963 (hereinafter, the Act), and is also regulated by the Code of Civil Procedure, 1908 in India.

Types of Injunctions in the Indian Law

Generally speaking, there are two types of injunctions under the act[2], as mentioned below:

  1. Temporary Injunction
  2. Perpetual/Permanent Injunction

Both the types of injunctions are discussed below.

Temporary Injunction

Temporary injunctions, as the name suggests, are the injunctions that are given for a specific period of time or until the court gives further order regarding the matter in concern. They can be obtained during any stage of the trial and are regulated by the Code of Civil Procedure (CPC), 1908[3]:

  • Section 94: The section provides for supplemental proceedings, to enable the court to prevent the ends of justice from being defeated. Section 94(c) states that a court may grant temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold. Section 94(e) of the Code enables the court to make interlocutory orders as may appear to it to be just and convenient.
  • Section 95: If it is found by the court that there were no sufficient grounds to grant the injunction, or the plaintiff is defeated in the suit, the court may award reasonable compensation to the defendant on his application claiming such compensation.
  • Order XXXIX:
    • Rule 1: It enlists the situations when a court may grant temporary injunction. These are:
  1. Any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
  2. the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
  3. the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.
  • Rule 2: It provides that an interim injunction may be granted for restraining the defendant from committing a breach of contract or other injury of any kind to the plaintiff.
  • Rule 3: It states that a court shall direct a notice of application to the opposite party, before granting the injunction to the plaintiff. However, if it seems to the court that the purpose of the injunction would be defeated by the delay, it may not provide the notice.
  • Rule 4: It provides for vacation of already granted temporary injunction.
  • Rule 5: It states that an injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action the injunction seeks to restrain.

In the M. Gurudas and Ors. case[4], the Hon’ble Supreme Court of India has opined, “while considering an application for injunction, the Court would pass an order thereupon having regard to prima facie, balance of convenience and irreparable injury.

1. Prima Facie Case: 

Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs. R.N. Banerjee[5], while discussing a the meaning of the ‘prima facie’ case, the court said:

“A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.”

Prima facie case is a must to be eligible to obtain a temporary injunction. However, it is not sufficient and temporary injunction cannot be granted if the damage that will be caused if the injunction is not given is not irreparable.[6]

2. Irreparable Injury:

‘Irreparable injury’ means such injury which cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refused.[7]

3. Balance of Convenience:

In the case of Anwar Elahi[8], the court has clearly explained the meaning of ‘balance of convenience’. According to the court:

“Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted.”

Permanent Injunction

A permanent injunction can be granted by the court by passing a decree made at the hearing and upon the merits of the suit. Once such decree is passed, the defendant is permanently prohibited from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.[9]

When can a permanent injunction be granted?

A permanent injunction may be granted:

a. To the plaintiff in a suit to prevent a breach of an obligation existing in his favour, whether implicit or explicit.[10] However, in a case where such an obligation arises out of a contract, the court follows the rules as specified by Chapter II of the Act.[11] Chapter II, under Section 9 provides that a person may claim relief in respect to a contract, by pleading in his defense, any of the ground available to him under any law relating to contracts.

b. In a case where the plaintiff invades or threatens to invade the the plaintiff’s right to, or enjoyment of, property, the court may grant a permanent injunction where:

  1. The defendant is trustee of the property for the plaintiff;
  2. there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
  3. the invasion is such that compensation in money would not afford adequate relief;
  4. the injunction is necessary to prevent a multiplicity of judicial proceedings.[12]

Mandatory Injunction

If the court finds it necessary and within its capability, to compel the performance of an act, to prevent the breach of an obligation, it may do so granting a mandatory injunction to the plaintiff, compelling the defendant to perform the requisite acts.[13]

Damages In Lieu of, or in Addition to Injunction

If the plaintiff claims for any additional damages along with the injunction sought for, either perpetual or mandatory, or in substitution of the said injunction, the court may award him such damages, if it thinks fit[14]. If no damages have been claimed, the court may allow the plaintiff to make the required amendments to the plaint and claim damages[15].

However, it is highly recommended to claim damages in the plaint before submitting it, as permission for further amendments rests solely at the discretion of the court.

The dismissal of a suit to prevent the breach of an obligation existing in favor of the plaintiff bars his right to sue for damages for such breach.[16]

Injunction to Perform Negative Agreement

The court can grant an injunction to not do certain acts, which are prohibited by the contract to do. The court may do so even if it is unable to compel the performance of the affirmative terms of the contract, i.e. the terms that requires the defendant to do (perform) certain acts. However, it is subject to the fact, whether the plaintiff has performed the terms of the contract binding on him or not. Non performance by the plaintiff dis-entitles him from obtaining such an injunction.[17]

Case Laws Regarding Permanent Injunction

In the case of  Jujhar Singh vs. Giani Talok Singh[18] where a permanent injunction was sought for by a son to prevent his father who happened to be the Karta of the Hindu Undivided Family (HUF), from selling the HUF property was set aside. It was not maintainable because the son, also a coparcener, had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale.

On the other hand, granting the injunction sought would allow the son to use the injunction to prevent the father from selling the property even if he is compelled to do so, due to legal necessities.

Where in the case of Cotton Corporation Of India vs. United Industrial Bank, an injunction was sought for to restrain the defendants from presenting a winding-up petition under the Companies Act, 1956 or under the Banking Regulation Act, 1949, the court dismissed the petition as it was not competent to grant, as a relief, a temporary injunction restraining a person from instituting a proceeding in a court not subordinate to it.

The court here was of the view that if a perpetual injunction cannot be granted for the subject matter of the case under Section 41(b) of the act, ipso facto temporary injunction cannot be granted.[19]

Grounds for Rejection of an Application for Injunction

On the following grounds, an injunction cannot be granted:

  1. To restraint a person from prosecuting a pending judicial proceeding, unless it is to prevent multiplicity of the proceeding.
  2. To restraint a person from instituting or prosecuting a judicial proceeding in a court, where the injunction is sought from a court subordinate to that court.
  3. To restrain any person from applying to any legislative body.
  4. To restrain any person from instituting or prosecuting any proceeding in a criminal matter.
  5. To prevent the breach of a contract the performance of which would not be specifically enforced (Illustration: a contract between a master and servant, requiring the servant to render personal services to the master cannot be specifically enforced by the master or the servant. Hence, an injunction cannot be granted in this situation)
  6. Where it is not reasonably clear that an act it nuisance, to prevent such an act on the ground of nuisance.
  7. To prevent a continuing breach in which the plaintiff has acquiesced, as the general rule is that an acquiescence is an implied consent by remaining silent.
  8. Where except in the case of breach of trust, equally efficacious relief can certainly be obtained by any other usual mode of proceeding.
  9. When the conduct of the plaintiff or his agents has been such as to dis-entitle him to the assistance of the court.
  10. When the plaintiff has no personal interest in the matter.[20]

What are your views on this? Feel free to comment below & share the article.

 

Reference:

[1] Black’s Law Dictionary

[2] Sections 36 of the Specific Relief Act, 1963

[3] Section 37(1) of the Specific Relief Act, 1963

[4] M. Gurudas and Ors. Vs. Rasaranjan and Ors. AIR 2006 SC 3275

[5] 1958 AIR 79, 1958 SCR 514

[6] M/S Best Sellers Retail(I)P.Ltd vs M/S Aditya Birla Nuvo Ltd.& Ors (2012) 6 SCC 792

[7] Orissa State Commercial Transport Corporation Ltd. v. Satyanarayan Singh, (1974) 40 Cut LT 336

[8] Anwar Elahi vs Vinod Misra And Anr. 1995 IVAD Delhi 576, 60 (1995) DLT 752, 1995 (35) DRJ 341

[9] Section 37 of the Specific Relief Act, 1963

[10] Section 38(1) of the Specific Relief Act, 1963

[11] Section 38(2) of the Specific Relief Act, 1963

[12] Section 38(3) of the Specific Relief Act, 1963

[13] Section 39 of the Specific Relief Act, 1963

[14] Section 40(1) of the Specific Relief Act, 1963

[15] Section 40(2) of the Specific Relief Act, 1963

[16] Section 40(3) of the Specific Relief Act, 1963

[17] Section 41 of the Specific Relief Act, 1963

[18] AIR 1987 P H 34

[19] 1983 AIR 1272, 1983 SCR (3) 962

[20] Section 41 of the Specific Relief Act, 1963

LEAVE A REPLY