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LAW OF CONTRACT

Project Topic
INJUNCTIONS
Submitted to:
Dr. (Prof.) Eqbal Hussain Sir
Submitted by:
Ziaul Haq
B.A.LL.B.(Hons) IstSem
Faculty of Law

JamiaMilliaIslamia
A Central University
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Acknowledgement

It gives me immense pleasure and gratitude to thank my


contract’s teacher Dr. (Prof.) Eqbal Hussain Sir who has
helped me in each possible way that one could. My
project without her help would have been a much difficult
task.
I would like to thank staff of the central library of Jamia
Millia Islamia for helping me in searching valuable
information.

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INJUNCTIONS
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 or
continuance of some wrongful act of the party informed.
In Burney “injunction has been defined to be a judicial process,
by which one who has invaded or is threatening to invade the
rights, legal or equitable, of another is restrained from
continuing or commencing such wrongful act1
Both of these definitions are expressive more of what is called a
prohibitory injunction that mandatory injunction. The definition
which clearly includes both is one given by Lord Harlsbury.
According to him ‘An injunction is a judicial process whereby a
party is ordered to refrain from doing or to do a particular act or
thing.’
Injunction acts in personam. It does not run with the property.
For example A, the plaintiff, secures an injunction B forbidding
him to erect a wall. A sells the property to C. The sale does carry
the injunction with the property.

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ENCYCLOPEDIA OF THE LAWS OF ENGLAND, by A.W.Renton p.464
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An injunction may be issued for and against individuals, public
bodies or even the State. Disobedience of an injunction is
punishable as a contempt of court.

There are three characteristics of an injunction:


(1) It is a judicial process,
(2) The relief obtained thereby is a restrain or prevention,
and
(3) The act prevented or restrained is wrongful.

Nelson suggests that “the nature of discretion and the rules


for its guidance, in the case of the Indian Courts are the
same as in England.”
Under English law:
(1) If the injury to the plaintiff’s legal right is small; and

(2) Is one which is capable of being estimated in money; and

(3) Is one which can be adequately compensated by a small


money payment; and

(4) The case is one, in which it would be oppressive to the


defendant to grant an injunction,
Then damages in substitution for an injunction may be given.

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In India some of these points have been incorporated into
rules of jurisdiction by being enacted as sections of the
Specific Relief Act, 1963.
The may be stated as following
An injunction will not be issued-
(1) Where damages are the appropriate remedy,

(2) Where injunction is not the appropriate relief,

(3) Where the plaintiff is not entitled to an injunction on


account of his conduct,

(4) Where the contract cannot be specifically enforced,

(5) Where the injunction would operate inequitably.

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KINDS OF INJUNCTIONS
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Preventive relief how granted. – Preventive relief is granted at
the discretion of the court by injunction, temporary or perpetual.
Injunctions are either temporary (interlocutory) or perpetual.
They are defined in Section 37, Specific Relief Act, which
reads-
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Temporary and perpetual injunctions. – (1) Temporary
injunctions are such as are to continue until a specified time, or
until the 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.
Temporary injunctions
The procedure for granting temporary injunction is governed by
the rules laid down in order XXXIX, Rules 1 and 2, Civil
Procedure Code which reads as under:

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Section 36 of Specific Relief Act, 1963.
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Section 37 of Specific Relief Act, 1963.
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Cases in which temporary injunction may be granted
A temporary injunction may be granted in the following cases:
1. For protection of interest in property
This category will cover the following cases:
(a) That 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
(b) That the defendant threatens, or intends, to remove or
dispose of his property with a view to defraud his
creditors,
(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 order grant a temporary injunction to restrain
such act, or make such other order for the purpose of staying and
preventing the wasting, damaging, alienation, sale, removal or
disposition of the property as the court thinks fit until the
disposal of the suit or until further orders.
2. 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
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commencement of the suit, and either before or after
the judgment, apply to the court for a temporary
injunction to restrain the defendant from committing a
breach of the contract or injury complained of, or any
breach of contract or injury of a like kind arising out
of the same contract or relating to the same property or
right.
(2) The court may by order grant such injunction, on such
terms as to the duration of the injunction, keeping an
account, giving security, or otherwise, as the court
thinks fit.

Perpetual injunctions:
Section 37(2) lays down that a permanent injunction can be
granted only by a decree at the hearing and upon the merits of
the suit. In other words for obtaining a permanent injunction, a
regular suit is required to be filed in which the right claimed by
the plaintiff is examined on merits and finally the injunction is
granted by means of the decree. A permanent injunction
therefore finally decides the rights of parties whereas a
temporary injunction does not do so. A permanent injunction
forbids the defendant from asserting a right or committing an act
which would be contrary to the rights of the plaintiff.

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Permanent injunction:
Section 38 of the Specific Relief Act states the circumstances in
which a permanent injunction can be granted. It provides:
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Perpetual injunction when granted. – (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 existing in his favour, whether expressly or by
implication.
(2) When any such obligation arises from contract, the court
shall be guided by the rules and provisions contained in
Chapter II.
(3) 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-
(a) Where the defendant is trustee of the property for
the plaintiff;
(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;

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Section 38 of Specific Relief Act, 1963.
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(d) Where the injunction is necessary to prevent a
multiplicity of judicial proceedings.
Requirements for applicability:
The condition prerequisite to the applicability of this section are-
(1) There must be a legal right express or implied in favour
of the applicant;
(2) Such a right must be violated or there should be a
threatened invasion;
(3) Such a right should be an existing one;
(4) The case should be fit for the exercise of the court’s
discretion. Where the inconvenience likely to result from
granting injunction is greater than that which is likely to
arise from withholding it, the injunction should not be
granted.
(5) It should not fall within the sphere of the restraining
provisions contained in, or referred to, in Section 41 of
the Specific Relief Act.

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Refusal of injunctive relief:
Section 41 lays down the circumstances when perpetual
injunction will be refused by the court. In other words, section
41 lays down the defences that can be raised against the prayer
for grant of an injunction. It provides:
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Injunction when refused. – An injunction cannot be granted-
(a) To restrain any person from prosecuting a judicial
proceeding pending at the institution of the suit in which
the injunction is sought, unless such restraint is
necessary to prevent a multiplicity of proceedings;
(b) To restrain any person from instituting or prosecuting
any proceeding in court not subordinate to that from
which the injunction is sought;
(c) To restrain any person from applying to any legislative
body;
(d) To restrain any person from instituting or prosecuting
any proceeding in a criminal matter;
(e) To prevent the breach of a contract the performance of
which would not be specifically enforced;
(f) To prevent, on the ground of nuisance, an act of which
it is not reasonably clear that it will be a nuisance;

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Section 41 of Specific Relief Act, 1963.
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(g) To prevent a continuing breach in which the plaintiff has
acquiescenced;
(h) When equally efficacious relief can certainly be obtained
by any other usual mode of proceeding except in case of
breach f trust;
(i) When the conduct of the plaintiff or his agents has
been such as to disentitle him to the assistance of the
court;
(j) When the plaintiff has no personal interest in the
matter.

Mandatory Injunctions:
Mandatory injunctions. – When, to prevent the 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 to compel performance of the
requisite acts.
The injunction which commands the defendant to do
something is termed as “Mandatory Injunction”. Salmond
defines mandatory injunction as “an order requiring the
defendant to do a positive act for the purpose of putting an
end to a wrongful state of things created by him, or otherwise,
in fulfillment of the legal obligations, for example, an order to
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pull down a building which he has already erected to the
obstruction of the plaintiff’s lights”.
Section 39 of the Specific Relief Act, 1963 reads: “When, to
prevent the 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 to compel
performance of the requisite acts.”
When not granted:
Mandatory injunction, however, will not be granted in the
following cases:
(1) Where compensation in terms of money would be an
adequate relief to the plaintiff.
(2) Where the balance of convenience is in favour of the
defendant.
(3) Where the plaintiff is guilty of allowing the obstructions
to be completed before coming to the court, i.e. where
plaintiff has shown acquiescence in the acts of the
defendant.
(4) Where it is desired to create a new state of things.
Mandatory injunction, as is clear, is granted to restore
status quo. It cannot be granted to create a new state of
things. Thus, it was held by the Allahabad High Court in
Sheo Nath v Ali, that where the defendant constructed a
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structure which interfered with the privacy of the
plaintiff’s house, he could not be ordered to erect a wall
on the roof, so as to prevent a view of the plaintiff’s
house from the roof.
In a dispute between a brother and his sister, the background
was that the sister constructed a house adjacent to that of her
brother and the brother actively participated in the construction
actively participated in the construction activity and also
allowed her to take the support of his wall. He never objected.
Two years later, he changed his mood and claimed removal or
demolition of the construction. The trial court refused to order
demolition but granted an order against further construction.
Such order was held to be proper. The order of the appellate
court for demolition by resorting to the Easements Act, 1882
was held to be not proper since an easementary right was never
claimed.6

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Dhaniya Bai v Jiwan, AIR 2003 MP 71.
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Damages in lieu of or in addition to Injunction [S. 40]
Damages in lieu of, or in addition to, injunction. – (1) The
plaintiff in a suit for perpetual injunction under section 38, or
mandatory injunction under section 39, may claim damages
either in addition to, or in substitution for, such injunction and
the court may, if it thinks fit, award such damages.
(2) No relief for damages shall be granted under this
section unless the plaintiff has claimed such relief in
his plaint:
Provided that where no such damages have been claimed in
the plaint, the court shall, at any stage of the proceedings,
allow the plaintiff to amend the plaint on such terms as may
be just for including such claim.
(3) The dismissal of a suit to prevent the breach of an
obligation existing in favour of the plaintiff shall bar
his right to sue for damages for such breach.
This section provides that the plaintiff in a suit for perpetual
injunction under section 38, or mandatory injunction under
section 39, may claim damages either in addition to, or in
substitution for, such injunction, and the court may, if it thinks
fit, award such damages. The plaintiff has specifically to include
in his plaint a claim for damages also. If he has not done so, he
may seek permission to the court for the amendment of his
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pleadings. But where a suit, in which damages were not claimed,
is dismissed, a subsequent separate suit for damages would not
lie. The court can award damages in lieu of injunction where the
injury is threatened though not yet caused. The House of Lords
in Leeds, Industrial Coop Society Ltd v Black, laid down that
damages could be allowed to a person whose tenement is sure to
suffer loss of his right to light when a planned building structure
comes up. Where, for example, a person happened to raise his
building to encroach upon the land of his neighbor up to three
inches, the court allowed the neighbor compensation instead of
an order for demolition of the building.7 Damages have also
been allowed under this principle where information delivered in
confidence was put to use.8

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Tilokchand v Dhundiraj, AIR 1957 Nag 2.
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Fraser v Thames Television Ltd, (1983) 2 All ER 101 HL.
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