CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA-800001

“TEMPORARY AND PERMANENT INJUNCTION”

FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE COURSE TITLED –

CONTRACT-I

SUBMITTED TO: SUBMITTED BY:

MRS SUSHMITA SINGH, NAME: MOHIT KUMAR

TEACHER ASSOCIATE COURSE: B.A. LL.B (Hons.)

ROLL NO: 1741

SEMESTER: 2ND
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DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A. LL.B (Hons.) Project Report entitled
“TEMPORARY AND PERMANENT INJUNCTION” submitted at Chanakya National Law
University is an authentic record of my work carried out under the supervision of Mrs
SUSHMITA SINGH. I have not submitted this work elsewhere for any other degree or
diploma. I am fully responsible for the contents of my Project Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: MOHIT KUMAR

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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ACKNOWLEDGEMENT

I would like to thank my faculty Mrs SUSHMITA SINGH under whose guidance helped me
a lot with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn‟t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

THANK YOU,

NAME: MOHIT KUMAR

COURSE: B.A. LL.B. (Hons.)

ROLL NO: 1741

SEMESTER – 2nd
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CONTENTS
DECLARATION BY THE CANDIDATE ................................................................................ i
ACKNOWLEDGEMENT .........................................................................................................ii
CONTENTS ............................................................................................................................. iii
I. INTRODUCTION: ........................................................................................................... iv
AIMS AND OBJECTIVES: .................................................................................................. v
HYPOTHESIS: ..................................................................................................................... vi
RESEARCH METHODOLOGY: ........................................................................................ vi
SOURCES OF DATA: ......................................................................................................... vi
LIMITATIONS OF THE STUDY: ...................................................................................... vi
II. TYPES OF INJUNCTION: .............................................................................................vii
a. TEMPORARY INJUNCTION: ....................................................................................vii
Cases In Which Temporary Injunction May Be Granted: ...............................................vii
b. PERPETUAL INJUNCTION: .................................................................................... viii
III. CIRCUMSTANCES FOR GRANTING OF PERMANENT INJUNCTION: ................. ix
a. NO INJUNCTION AGAINST EXERCISEOF LEGALRIGHTS:................................. x
b. PERMANENT INJUCTION CAN BIND SUCCESSORS IN THE INTEREST ALSO:
………………………………………………………………………………………….x
IV. CIRCUMSTANCES FOR REFUSAL OF INJUNCTION: ............................................xii
V. CONCLUSION: .............................................................................................................. xiv
BIBILIOGRAPHY: ................................................................................................................. xv
STATUES: ....................................................................................................................... xv
CASES: ............................................................................................................................ xv
BOOKS: ........................................................................................................................... xv
WEBSITES: ..................................................................................................................... xv
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I. INTRODUCTION:

An injunction is a court order that requires a person to do or abstain from doing an act that is
necessary in terms of justice, and the absence of which would be contrary to good faith and
good conscience. Basically, the grant of an injunction, aims to restore the violated rights of a
party, whereby monetary or compensatory damages are insufficient. It follows the principles
of Natural Justice and Equity. The concept of injunction is a fairly simple one, and the relief
granted, is a preventive one. Historically, the law of injunction finds its origin in English
Jurisprudence, and comes from the French word „injungere‟, which translates to „to join‟. It
finds its origins in Indian law through several Indian Statutes. To specify, the statutory
provisions for injunctions, according to the required law, are present in CrPC (for Criminal
cases), CPC and the Specific Relief Act (for civil matters). Each of these statutes provide for
some form of injunction, depending on the situation and the case.

According to Section 36 of the Specific Relief Act, 1963-

Preventive relief is granted at the discretion of the court by injunction temporary or
perpetual1.

Section 36 of the present Act is same as Section 52 of the repealed Specific Relief Act, 1877.
Section 52 of the repealed Act has been reproduced as Section 36 of the present Act.

Injunction is specific orders of the court whereby it prohibits a wrongful act or enact in a
wrongful course, which has already commenced or cases it direct the things to be restored in
their prior state. Injunction is a very effective remedy because after passing of the order of
injunction, the matter becomes matter between the court and the defendant or the person
against whom injunction has been issued. Consequently the non-compliance by the person
against whom injunction has been issued is regarded as contempt of court and the court can
punish him for such contempt. Ordinarily, injunction is issued in cases where compensation
is not an adequate relief2.

1
Specific Relief Act, 1963, No. 47, Acts of Parliament, 1963 (India).
2
DR. S. K. KAPOOR, CONTRACT-I ALONG WITH SPECIFIC RELIEF ACT, 78 (2005).
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A preventive relief (injunction) is an order or command of the Court preventing a party from
doing something which he is under legal duty not to do. For instance, every person is legally
bound not to commit trespass or not to defame a person, and, therefore, the court may issue
an injunction preventing a party from committing a trespass, or defaming someone3.

Relief of injunction is discretionary. This is clear from Section 36 which has been
The relief of injunction cannot be obtained as of right. The jurisdiction of the court to grant
injunctions, whether temporary, or perpetual, is discretionary. It is the discretion of the court
to grant or refuse such relief. The discretion does not mean that court can act arbitrarily. The
court is to be guided by the principles of justice, equity and good conscience. The court has to
weigh the amount of mischief done or threatened to be done to the plaintiff and harm to be
caused to the defendant by the issue of injunction4.

As observed by Fazal Ali, J., in Executive Committee of Vaishya Degree College, Shamli v.
Lakshmi Narain5, the relief of declaration and injunction under the provisions of the Specific
Relief Act is purely discretionary and the plaintiff cannot claim it as of right. The relief has to
be granted by the court according to sound legal principles and ex debito justitiae. The court
has to administer justice between the parties and cannot convert itself into an instrument of
injustice or an engine of oppression. While exercising its discretionary powers the court must
keep in mind the well settled vacuum.

A coparcener could not seek an injunction against the other coparceners restraining them
from enjoying the joint family properties. Therefore, in the case of M. Krishna Rao And Anr.
Vs. M.L. Narasikha Rao And Ors6, second defendant was not entitled to seek an injunction
restraining the plaintiffs from enjoying the plaint schedule property.

AIMS AND OBJECTIVES:

The researcher tends to analyse:-

1. Temporary and Permanent Injunction.

3
DR. R. K. BANGIA, CONTRACT-I, 550 (6th. ed. 2009)
4
Id.
5
Executive Committee of Vaishya Degree College, Shamli v. Lakshmi Narain, A.I.R. 1976 S.C. 888.
6
M. Krishna Rao And Anr. Vs. M.L. Narasikha Rao And Ors, AIR 2003 A.P. 498. (550)
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2. When injunction can be granted and refused.

HYPOTHESIS:
The researcher tends to presume that:-

1. Injunctions are granted to restore the right of a party where monetary damages are not
sufficient.
2. The grant of injection rests upon desecration of the court.
3. The court while deciding that whether the injunction is to be granted or not is guided
by the principles of justice, equity and good conscience.

RESEARCH METHODOLOGY:
The researcher has relied on Doctrinal method of research to complete the project.

SOURCES OF DATA:
The researcher has relied on both primary and secondary sources to complete the project.

1. Primary Sources: Case Laws, Specific Relief Act.

2. Secondary Sources: Books, newspapers and websites.

LIMITATIONS OF THE STUDY:

The researcher has territorial, monetary and time limitations in completing the project.
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II. TYPES OF INJUNCTION:

Broadly speaking injunctions may be of two kinds.--

a. Temporary Injunction, and
b. Perpetual Injunction.

a. TEMPORARY INJUNCTION:
A temporary injunction is a provisional relief that aims to protect the subject matter in the
existing condition, without the defendant‟s interference or threat. It aims to protect the
plaintiff from getting disposed off, or his property (subject matter) being destroyed or
harmed, or from any injury to the plaintiff. The primary reason behind a temporary injunction
is to protect the interests of an individual or entity, till the final judgement is passed. A
temporary injunction, when granted, continues to remain for a specified period of time, or till
the court deems fit.

Temporary injunctions are such as are to continue until 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.

Temporary or interlocutory injunctions are to continue temporarily either until a specified

time, or until further order of the court. It is only provisional in nature and does not conclude
a right or finally settle the matter. For instance, these may be an order to preserve the
property until the final hearing of the case. The object may be to maintain status quo, so that
the alleged harm is avoided, which could otherwise occur until the case is finally disposed of
by the Court, on merits7.

CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED:

A reading of Order 39 Rule 1 of the Code of Civil Procedure lays down the conditions under
which temporary injunction8-

i. When any property in dispute is in danger,

ii. When any property in dispute is being wasted,

7
Supra Note 3.
8
S. S. Das, Temporary Injunction, MAHARASTRA JUDICIAL ACADEMY, (Apr. 8, 2018, 5:00 PM),
http://mja.gov.in/Site/Upload/GR/summary%20of%20workshop%20on%20injunction%20%20.pdf
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iii. When any property in dispute is damaged,

iv. When any property in dispute is alienated by any party,
v. When any property in dispute is wrongfully sold in execution of a decree,
vi. When defendant threatens,
vii. When defendant intends to remove,
viii. When defendant dispose of his property with a view to defrauding his creditor,
ix. When defendant threatened to dispossess the plaintiff,
x. When defendant otherwise cause injury to the plaintiff in relation to any property in
dispute in a suit,
xi. Where defendant is about to commit a breach of contract or other injury of any kind,
xii. Where a court is of the opinion that in the interest of just so requires.

The prayer for grant of a temporary injunction may be made by either party to the suit, under
Order 39, Rule 1 of the C.P.C., 1908.

b. PERPETUAL INJUNCTION:
A perpetual injunction (also known as permanent injunction) is one that is delivered at the
time of the final judgement, and therefore is, prevalent for a longer period of time. In this
scenario, the Defendant is perpetually restrained from the commission of an act, or the
abstinence from the commission of an act, which would defeat the interests of the Plaintiff.
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III. CIRCUMSTANCES FOR GRANTING OF PERMANENT

INJUNCTION:
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 plaintiff9.

Section 37(2) of Specific Relief Act says that a perpetual injunction can only be granted by
the decree made at the hearing and upon merits of the suit10.

Section 38 of the Specific Relief Act further provides a circumstance where a perpetual
injunction may be granted in favour of the plaintiff to prevent the breach of obligation
existing in his favour. In contractual matters when such obligation arises, the Court has to
seek guidance by the rules and provisions contained in Chapter II of the Specific Relief Act
dealing with the specific performance of contracts11.

Section 38 contains the following rules for the grant of perpetual injunction-

(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 favor, 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;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

9
Supra note 1.
10
Id.
11
P.P. Joshi, Law Of Injunctions, MAHARASTRA JUDICIAL ACADEMY, (Apr. 8, 2018, 6:35 PM),
http://mja.gov.in/Site/Upload/GR/Consolidate%20Workshop%20Paper%20Ratnagiri%20Civil-15032015.pdf
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The law has detailed four categories of cases specified in sub clauses (a) to (d) of sub section
(3). They are12:

i. when the defendant is the trustee for the plaintiff,

ii. when there exists no standard for measuring the damages caused, or likely to be
caused, by the actual invasion,
iii. where compensation in money would uphold 107 no adequate relief to the plaintiff
and
iv. where the injunction is necessary to prevent multiplicity of judicial proceedings.

a. NO INJUNCTION AGAINST EXERCISEOF LEGALRIGHTS:

In Saraswathi Ammal v. Viveka Primary School13, the tenant filed a suit to obtain permanent
injunction to a restrain the land of from evicting him permanently. It was held that such an
action was not maintainable as it was aimed at casting embargo on landlord‟s right to enjoy
legal right in respect of his property.

b. PERMANENT INJUCTION CAN BIND SUCCESSORS IN THE

INTEREST ALSO:

It has been held by the Supreme Court in Kanahiyalal v. Babu Ram14that in a suit for
permanent injunction regarding partition of property, the partition deed contemplated giving
use of gallery to one of the co-owners. It was held that the condition in the partition deed
binds not only the two co-owners but their successor-in-interest also. Hence, issue of
permanent injunction restraining successor in interest of the other co-owner was valid.

12
R. D. Deshpande, Law of Injunctions - Temporary Injunction including Exparte Temporary Injunction,
Perpetual Injunction and Mandatory Injunction, MAHARASTRA JUDICIAL ACADEMY, (Apr. 9, 2018, 9:35
PM), http://mja.gov.in/Site/Upload/GR/Consolidate%20Workshop%20Paper%20Ratnagiri%20Civil-
15032015.pdf
13
Saraswathi Ammal v. Viveka Primary School, A.I.R. 2001 Mad. 417
14
Kanahiyalal v. Babu Ram, A.I.R. 2000 S.C 3507.
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If the defendants have made encroachments near the plaintiff's land and the plaintiff
apprehends encroachment on his land also, he will be entitled to a permanent injunction
restraining defendants from making encroachment on his land or interfering with peaceful
possession of plaintiff's property. Similarly, if the plaintiff has been dispossessed of his shop
in dispute while the suit was still pending, it was held that the defendant was bound to hand
over the possession of the shop to the plaintiff to maintain status quo ante. If it is found that
the possession of the suit property is with the defendants only to which the plaintiff is
entitled, the plaintiff can obtain a decree for declaration of his title and an injunction against
the defendant to handover possession to the plaintiff.

In Baban Girju Bangar v. Namdeo Girju Bangar, the plaintiff, who was a member of joint
Hindu family, purchased the suit property in his own name out of his income from an
independent business, which he was carrying on for a long time. In a suit for permanent
injunction declaring that the plaintiff was the exclusive property had been purchased from
joint family funds and hence it prove their allegations, which they failed to do. Moreover, the
mere fact that certain joint family properties were in the plaintiff's name family property.

It was held that the plaintiff was successful in proving that he was the exclusive owner of the
suit property and had exclusive right to enjoy the said property. Perpetual injunction to that
affect was granted in favour of the plaintiff.
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IV. CIRCUMSTANCES FOR REFUSAL OF INJUNCTION:

It has been noted above that Section 38 mentions the circumstances when an injunction can
be granted. Section 41 supplements Section 38 and states the circumstances when an
injunction cannot be granted, and is to be refused.

Section 41 details the circumstances when the injunction must not be granted. They are as
follows15 –

(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 a 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 nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance to the Court;
(j) when the plaintiff has not personal interest in the matter.

The granting of injunction is discretionary. Even if the case is not covered by Section 41, the
Court may refuse to grant an injunction. The Court exercises its discretion on the basis of
facts and circumstances of the case, balance of convenience of parties, conduct of parties, etc.

Where the plaintiff claims the land to be his whereas defendant is attempting to raise
construction on the land claiming the same to have been acquired in such a dispute plaintiff
15
Supra note 1.
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ought to have sought for declaration of his title and consequential injunction, if at all he is in
possession. Filing of a mere suit for perpetual injunction is a conduct of plaintiff to avoid the
normal course and this conduct prohibits assistance of the Court to get the relief under
Section 41 of the Relief Act. This was held by the Division Bench of the Allahabad High
Court in Sri Dasnam Naga Sanyasi v. Allahabad Development Authority, In the case the High
Court observed that merely because of the precedents to the effect that Court can go into
question of title of portion in absence of a specific prayer for declaration, plaintiff ought not
to avoid the relief which he could have sought for. Since the trial Court is to consider this
conduct of the plaintiff to examine to grant perpetual injunction, the Court refrained to
express any opinion at this stage, since plaintiff could seek amendment of plaint at a later
stage of the suit. However, while considering prima facie case, this aspect is to be kept in
mind. The records produced before the High Court showed that the trial Court was not
satisfied about the identity of the land belonging to the plaintiff for which a commissioner
had been appointed and who had not yet submitted his report. In such a situation it cannot be
said that defendant is attempting to construct on the land in possession of the plaintiff which
would be required for considering balance of convenience16.

According to Section 41 (b) an injunction cannot be granted to restrain any person from
instituting or prosecuting any proceeding in a Court not subordinate to that from which the
injunction is sought but this provision must not be stretched to the extent of rendering a Court
helpless in preventing abuses of its own proceedings. Thus the interdict contained in Section
41 (b) is not applicable when injunction is to be issued in respect of the proceedings pending
in the same Court.

The provisions of Section 38 of the Specific Relief Act have to be read alongwith Section 41
thereof. Section 41 provides that an injunction cannot be granted in the cases falling under
clauses (a) to (j), but clause (h) thereunder provides that an injunction cannot be granted
when a party could obtain an efficacious relief by any other usual mode of proceeding, except
in case of breach of trust. The coparcener has adequate remedy to impeach the alienation
made by the karta. He cannot therefore, move the Court for an injunction restraining the karta
from alienating the coparcenary property.

16
Supra note 2.
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V. CONCLUSION:

After analyzing the Temporary and Permanent Injunction., we come to a conclusion that-

The hypothesis of the researcher has been proved correct.

Injunctions are granted to restore the right of a party where monetary damages are not
sufficient.

The grant of injection rests upon desecration of the court. But this does not mean that the
court behaves in arbitrary manner, the court while deciding that whether the injunction is to
be granted or not is guided by the principles of justice, equity and good conscience.

An injunction is an equitable remedy in the form of a court order that compels a party to do
or refrain from specific acts. It is a court order which restrains one of the parties to a suit in
equity from doing or permitting others who are under his control to do an act which is unjust
to the other party.

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.

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.
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BIBILIOGRAPHY:

The researcher has consulted following sources to complete the project:

PRIMARY SOUECES:

1. STATUES:

i. Specific Relief Act, 1963, No. 47, Acts of Parliament, 1963 (India).

2. CASES:

i. Executive Committee of Vaishya Degree College, Shamli v. Lakshmi Narain,

A.I.R. 1976 S.C. 888.

ii. M. Krishna Rao And Anr. Vs. M.L. Narasikha Rao And Ors, AIR 2003 A.P.
498. (550)

iii. Saraswathi Ammal v. Viveka Primary School, A.I.R. 2001 Mad. 417

iv. Kanahiyalal v. Babu Ram, A.I.R. 2000 S.C 3507.

SECONDARY SOURCES:

1. BOOKS:

i. DR. KAPOOR S. K., CONTRACT-I ALONG WITH SPECIFIC RELIEF ACT, 78 (2005).

ii. DR. BANGIA. R. K., CONTRACT-I, 550 (6TH. ED. 2009).

2. WEBSITES:

i. DAS.S. S., Temporary Injunction, MAHARASTRA JUDICIAL ACADEMY,

http://mja.gov.in/Site/Upload/GR/summary%20of%20workshop%20on%20inj
unction%20%20.pdf
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ii. JOSHI.P.P., Law Of Injunctions, MAHARASTRA JUDICIAL ACADEMY,

http://mja.gov.in/Site/Upload/GR/Consolidate%20Workshop%20Paper%20Ra
tnagiri%20Civil-15032015.pdf

iii. DESHPANDE R. D., Law of Injunctions - Temporary Injunction including

Exparte Temporary Injunction, Perpetual Injunction and Mandatory
Injunction, MAHARASTRA JUDICIAL ACADEMY,
http://mja.gov.in/Site/Upload/GR/Consolidate%20Workshop%20Paper%20Ra
tnagiri%20Civil-15032015.pdf

iv. INDIAN KANOON, https://indiankanoon.org