Contracts Which Can Be Specifically Enforced

10. Cases in which specific performance of contract enforceable

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the
discretion of the court, be enforced-

(a) when there exists no standard for ascertaining actual damage caused by the non-performance of the
act agreed to be done; or

(b) when the act agreed to be done is such that compensation in money for its non-performance would
not afford adequate relief.

Explanation: Unless and until the contrary is proved, the court shall presume-

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by
compensation in money; and

(ii) that the breach of a contract to transfer movable property can be so relieved except in the following
cases:

(a) where the property is not an ordinary article of commerce, or is of special value or interest to the
plaintiff, or consists of goods which are not easily obtainable in the market;

(b) where the property is held by the defendant as the agent or trustee of the plaintiff.

11. Cases in which specific performance of contracts connected with trust enforceable

(1) Except as otherwise provided in this Act, specific performance of a contract may, in the discretion of
the court, be enforced when the act agreed to be done is in the performance wholly or partly of a trust

(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically
enforced.

12. Specific performance of part of contract

(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific
performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must
be left unperformed by only a small proportion to the whole in value and admits of compensation in
money, the court may, at the suit of either party, direct the specific performance of so much of the
contract as can be performed, and award compensation in money for the deficiency.

(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must
be left unperformed either-

(a) forms a considerable part of the whole, though admitting of compensation in money; or
(b) does not admit of compensation in money;

he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other
party, direct the party in default to perform specifically so much of his part of the contract as he can
perform, if the other party-

(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the
contract reduced by the consideration for the part which must be left unperformed and a case falling
under clause (b), 2[pays or had paid] the consideration for the whole of the contract without any
abatement; and

(ii) in either case, relinquished all claims to the performance of the remaining part of the contract and all
right to compensation, either for the deficiency or for the loss or damage sustained by him through the
default of the defendant.

(4) When apart of a contract which, taken by itself, can and ought to be specifically performed, stands
on a separate and independent footing from another part of the same contract which cannot or ought
not to be specifically performed, the court may direct specific performance of the former part.

Explanation: For the purposes of this section, a party to a contract shall be deemed to be unable to
perform the whole of his part of it if a portion of its subject matter existing at the date of the contract
has ceased to exist at the time of its performance.

13. Rights of purchaser or lessee against person with no title or imperfect title

(1) Where a person contracts to sell or let certain immovable property having no title or only an
imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the
following rights, namely,-

(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the
purchaser or lessee may compel him to make good the contract out of such interest;

(b) where the concurrence of other persons is necessary for validating the title, and they are bound to
concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such
concurrence, and when a conveyance by other persons is necessary to validate the title and they are
bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to
procure such conveyance;

(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for an
amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the
purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where
necessary, also a conveyance from the mortgagee;

(d) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on
the ground of his want of title or imperfect title, the defendant has a right to a return of his deposit, if
any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on
the interest, if any, of the vendor or lessor in the property which is the subject-matter of the contract.

(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of
movable property

Contracts Which Cannot Be Specifically Enforced

14. Contracts not specifically enforceable

(1) The following contracts cannot be specifically enforced, namely,-

(a) a contract for the non-performance of which compensation is an adequate relief;

(b) a contract which runs into such minute or numerous details or which is so dependent on the
personal qualifications or volition of the parties, or otherwise from its nature is such, that the court
cannot enforce specific performance of its material terms;

(c) a contract which is in its nature determinable;

(d) a contract the performance of which involves the performance of a continuous duty which the court
cannot supervise.

(2) Save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to
arbitration shall be specifically enforced; but if any person who has made such a contract (other than
arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues
in respect of any subject which he has contracted to refer, the existence of such contract shall bar the
suit.

(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), the
court may enforce specific performance in the following cases:

(a) where the suit is for the enforcement of a contract,-

(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the
borrower is not willing to repay at once:

PROVIDED that where only a part of the loan has been advanced the vendor is willing to advance the
remaining part of the loan in terms of the contract; or

(ii) to take up and pay for any debentures of a company;

(b) where the suit is for,-

(i) the execution of a formal deed of partnership, the parties having commenced to carry on the
business of the partnership; or

(ii) the purchase of a share of a partner in a firm;

(c) where the suit is for the enforcement of a contract for the construction of any building or the
execution of any other work on land:

PROVIDED that the following conditions are fulfilled, namely,-

(i) the building or other work is described in the contract in terms sufficiently precise to enable the court
to determine the exact nature of the building or work;

(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a
nature that compensation in money for non-performance of the contract is not an adequate relief; and

(iii) the defendant has, in pursuance of the contract, obtained possession of the whole or any part of the
land on which the building is to be constructed or other work is to be executed.

INJUNCTION

33. Power to require benefit to be restored or compensation to be made when instrument is cancelled
or is successfully resisted as being void or voidable

(1) On adjudging the cancellation of an instrument, the court may require the party to whom such relief
is granted, to restore, so far as may be any benefit which he may have received from the other party and
to make any compensation to him which justice may require.

(2) Where a defendant successfully resists any suit on the grounds-

(a) that the instrument sought to be enforced against him in the suit is voidable, the court may if
the defendant has received any benefit under the instrument from the other party, require him to
restore, so far as may be, such benefit to that party or to make compensation for it.

(b) that the agreement sought to be enforced against him in the suit is void by reason of his not having
been competent to contract under section 11 of the Indian Contract Act, 1872, the court may, if the
defendant has received any benefit under the agreement from the other party, require him to restore,
so far as may be, such benefit to that party, to the extent to which he or his estate has benefited
thereby.
34. Discretion of court as to declaration of status or right

Any person entitled to any legal character, or to any right as to any property, may institute a suit against
any person denying, or interested to deny, his title to such character or right, and the court may in its
discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for
any further relief:

PROVIDED that no court shall make any such declaration where the plaintiff, being able to seek further
relief than a mere declaration of title, omits to do so.

Explanation: A trustee of property is a "person interested to deny "a title adverse to the title of
someone who is not in existence, and for whom, if in existence, he would be a trustee.

35. Effect of declaration

A declaration made under this Chapter is binding only on the parties to the suit, persons claiming
through them respectively, and, where any of the parties are trustees, on the persons for whom, if in
existence at the date of declaration, such parties would be trustees.

36. Preventive relief how granted

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

What is an injunction?

An injunction is an order issued by a court that forces the defendant––a person, corporation or
government entity––to do something or stop doing something, depending on what the plaintiff is
requesting. In relatively rare cases, the court may issue a mandatory injunction, compelling a person,
company, or governmental unit to take affirmative action in carrying out a specified action.

When a plaintiff decides to file a lawsuit, they must specify what type of legal remedy (or relief) they are
asking the court to grant them. While many plaintiffs seek money to compensate them for their injury,
some injuries require a different type of legal remedy. Instead of asking a court for monetary damages, a
plaintiff could ask the court for an injunction (or injunctive relief) against the defendant. The extent of
the injunction and the procedures for obtaining it are generally set out in your state’s rules of civil
procedure. Any plaintiff seeking an injunction should first consult with an experienced attorney.

Purpose of an Injunction

Injunctive relief is appropriate to prevent an action, to put a stop to ongoing or repeated conduct that
violates a person's rights or causes injury, or to force a defendant to take action in order to prevent
harm. It is important to note that when you file a lawsuit you may request both money damages and
injunctive relief if both are necessary for an appropriate legal remedy; you may have filed a lawsuit with
a request for money damages, but because the defendant continued to act in bad form, the continued
violation of your rights shows that money damages are not sufficient to stop or deter a defendant and it
seems you will need an injunction as well. For example, if you own a website and another firm is
continually copying the material on your site in violation of copyright notices and contractual provisions,
then a court can award money damages and issue an injunction to prevent that conduct from recurring.

Injunctive relief is generally considered a legal remedy of last resort, so when you file a lawsuit you must
show that you need the injunction because no other remedies are adequate for your situation either
because the subject of the lawsuit is unique or money is not enough to deter bad behavior. For example,
suppose you own a home surrounded by 100-year-old trees and your neighbor claims the trees are on
his property and is planning on cutting them down. While the dispute is pending, the court will likely
issue an injunction preventing your neighbor from cutting down the trees until the matter is heard and
completely resolved. The injunction would be appropriate because money damages cannot replace 100-
year-old trees. Essentially, you must show that an irreparable harm will occur if the injunction is not
granted.

How to Get an Injunction

An injunction begins with a petition requesting the court to grant injunctive relief. Because the petition
is usually the beginning of a lawsuit, you will be required to pay a filing fee. Depending on the extent of
the legal remedy you are requesting, the court may also require you to post a bond. If the court
approves your request for an injunction, the court can order the defendant to temporarily do something
or stop doing something they are doing until a final hearing can be held. This initial injunction is called a
temporary injunction because it only lasts for a specified time period until a hearing can determine the
appropriate legal remedy.

At a final hearing, both sides are allowed to present evidence to the court. After the court hears
evidence from both sides at a final hearing, the court will then decide whether the injunction should
only be temporary or permanent depending on the issues surrounding the need for the original
injunction. Before you file a lawsuit, you may want to consult with an attorney to review which type of
legal remedy is best suited for your injuries. If you forget to ask for a particular type of legal remedy
when you file a lawsuit, you could potentially loose the opportunity to ask for it a later time.

Conclusion:
To sum up succinctly, injunction means ‘It is an ordr of Court by which an individual is required to
perform, or is restrained from performing, a particular act. It is judicial process. The courts exercise their
power to issue injunctions judiciously, and only when necessity exists. An injunction is generally issued
only in cases where irreparable injury to the rights of an individual would result otherwise. It should be
readily apparent to the court that some act has been performed, or is threatened, that will produce
irreparable injury to the party seeking the injunction. An injury is generally considered irreparable when
it cannot be adequately compensated by an award of damages. The pecuniary damage that would be
incurred from the threatened action need not be great, however. If a loss can be calculated in terms of
money, there is no irreparable injury. The consequent refusal by a court to grant an injunction is,
therefore, proper. Loss of profits alone is insufficient to establish irreparable injury. The potential
destruction of property is sufficient. Injunctive relief is not a matter of right, but its denial is within the
discretion of the court. Whether or not an injunction will be granted varies with the facts of each case.

WHAT IS INJUNCTION? LAW OF INJUNCTION:

An Injunction is a judicial order, an authoritative warning, command, directive, ruling or order by a Court
of Law which restrains a person from beginning or continuing an action threatening or invading the legal
right of another, or that compels a person to carry out a certain act, e.g., to make restitution to an
injured party. An injunction is a court order requiring a person to do or cease doing a specific action.
Temporary restraining orders and preliminary injunctions are temporary injunctions.

An injunction is an order issued by a court that forces the defendant––a person, corporation or
government entity––to do something or stop doing something, depending on what the plaintiff is
requesting.

Injunction

(Chapter VII & VIII -Sections 36 to 42)

Injunction is a measure of preventive relief. The injunction is a judicial process whereby the parties are
ordered to refrain from doing or to do a particular act or thing. The court can grant injunctions,
temporary, perpetual, permanent or mandatory.

Temporary injunctions are such as to continue until a specific time or such further order of the
court.[Section 37(1)].

Perpetual injunction can only be granted by a decree made at the hearing of both the parties and the
defendant is thereby perpetually enjoined from the assertion of a right or from the commission of an act
which may be contrary to the right of plaintiff.[Section 37(2)]. The party who disobeys an injunction
exposes himself to the charge of contempt of court. The court issuing injunction can deal with its
disobedience even after the dismissal of the suit.
Subject to the other provisions contained in or referred to by Chapter VII of the Act, a perpetual
injunction may be granted to the plaintiff to prevent the breach of an obligation existing in favour of the
plaintiff either expressly or by implication or where such obligation arises from a contract which can be
specifically enforced or when the defendant invades or threatens to invade the right of, or enjoyment of
property, inter alia where invasion is such that compensation in money would not afford adequate relief
or where there exists no such standard for ascertaining the actual damage caused or likely to be caused
by the invasion.(Section 38)

Writ or injunction may take a positive form. It may require a party to do a particular thing. In such case
the injunction is described as mandatory. To prevent a breach of obligation, the court may compel the
performance of certain act. The court may also grant an injunction to prevent the breach complained of
and also to compel performance of the requisite act. In addition or in substitution to perpetual
injunction as well as mandatory injunction, the court may also award damages.(Section 39)

When Injunction is Refused (Section 41)

An injunction cannot be granted in the following cases

to refuse any person from procuring a judicial proceeding unless such restraint is necessary to prevent
the multiplicity of proceedings.

to restrain any person from instituting or procuring any proceeding in a higher court from which the
injunction is sought.

to restrain any person from applying to any legislative body.

to restrain any person from instituting or procuring criminal proceeding.

to prevent the breach of contract, the performance of which cannot be specifically enforced.
To prevent an act of which it is not reasonably clear that it will be a nuisance.

To prevent a continuing breach in which the plaintiff has acquiesced.

when equally efficacious relief can certainly be obtained by any other usual mode of proceeding

when the plaintiff has no personal interest in the matter.

where the conduct of the plaintiff or his agent has been such as to disentitle him to assistance of the
court.

The law of injunction in India has its origin in the Equity Jurisprudence of England

from which we have inherited the present administration of law. England too in its turn

borrowed it from the Roman Law wherein it was known as Interdict. The Roman Interdicts

were divided in three parts, prohibitory, restitutory and exhibitory. The prohibitory Interdict

corresponds to injunction. The injunction as a chancery remedy developed at the time of

Henry, the Vlth. The Chancellor set aside a certain bond by the plaintiff as one not binding

on him. The Court of Common Pleas, however, gave a decree with bond. Chancellor

thereupon devised the remedy of injunction by which he prohibited execution of the decree of

Common Law Court. This exercise of power by issuing injunction by the Chancery Court was

viewed with jealousy by the Common Law Court and it became a source of conflict between

the two jurisdictions. This conflict rose to the climax between the Lord Justice Coke and Lord

Chancellor Ellesmere in 1816. A decree was obtained from Lord Coke by practising gross

fraud. The Chancellor thereupon by an injunction perpetually enjoined the decree-holder

from proceeding to execute his judgment. The validity of this procedure of issuing injunction

was seriously questioned. The matter was referred to Bacon, the then Attorney General and
other counsel, who finally settled the question in favour of Chancellor. The jurisdiction to

issue injunctions was thus affirmed and the remedy which is termed as the strong arm of the

Courts of equity has contributed a lot to consolidate the position of the judiciary in

dispensing justice between the litigant parties.

From the aforesaid historical background it is manifest that the origin of the power to

grant injunction is from equity, hence the exercise of the discretion by the Courts is to be

governed mainly by equitable considerations. In our country in Criminal matters Sections

133, 142 and 144 of the Code of Criminal Procedure deal with grant of injunction. In Civil

matters the law relating to grant of injunction is contained in Chapter VII of Part III of the

Specific Relief Act, 1963. Sections 36 to 42 deal with the grant of injunction. It has been

termed as a prever1tive relief which is granted at the discretion of the Court by injunction

which may be temporary or perpetual. Section 37(1) of the Specific Relief Act, 1963 deals

with the temporary injunctions which are such as are to continue until a specified time, or

until further orders of the Court, and they may be granted at any stage of the suit or

proceedings and are regulated by the Code of Civil Procedure. From the aforesaid it is clear

that there can be permanent injunction which is granted as a final relief in the suit and there

can be temporary injunction which may be passed at any situation of the suit or proceedings

for preservation of the property. Both have to be discussed separately.

Permanent Injunction:

As is clear from Section 37 (2) of Specific Relief Act, 1963 (hereinafter referred to as

the Act), a perpetual injunction can only be granted by the decree made at the hearing and

upon the merit 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 right of the

plaintiff. Section 38 of the Act further provides the circumstances where the perpetual

injunction may be granted in favour of the plaintiff to prevent the breach of an obligation
4YFPMWLIH

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existing in his favour, whether expressly or by implication. In contractual matters when such

obligation arises, the Court has to seek guidance by the rules and provisions contained in

Chapter II of the Act dealing with specific performance of contracts. Sub- Section (3) of

Section 38 in clauses (a), (b), (c) and (d) further illustrates the circumstances where a

perpetual injunction may be granted by the Court. The mandatory injunctions are

contemplated under Section 39 of the Act where it is necessary to prevent the breach of an

obligation and the erring party may be compelled to perform certain acts. Section 40 provides

for granting damages in lieu of or in addition to injunction. Section 41 provides

circumstances where the injunction should be refused. Section 42 provides for grant of

injunction to perform a negative agreement. It was made clear at the beginning that the Law

of Injunction is vast and expansive jurisdiction and It forcefully illustrates the power of

equity in spite of the fetters of codification to march with the times and adjust the beneficial

remedies to altered social conditions and the progressive needs of the humanity. The first

Specific Relief Act was codified in the year 1877 which was replaced by the Specific Relief

Act of 1963 (Act No.47 of 1963). In spite of the codification the law of injunction continued

to expand and it fulfilled the needs of the society in different shapes - and forms. The

codification of the law has never proved a fetter. In this context, a Civil Court should never

have any hesitation in granting injunction to new circumstances and situations. Our society is
a progressive society, our country is a developing country and with the growth of the industry

one may be called upon to administer law of injunction to various kinds of new situations

which were wholly unknown to this field earlier. The essential test should, however, remain

equity. In this context the views expressed by the Courts and Jurists may be gainfully quoted

here :

"It is the duty of a Court of Equity," said Lord Cot ten hem in Taylor v. Selmon, (and

the same is true of all Courts and institutions), "to adopt its practice and course of

proceedings, as far as possible, to the existing state of society and to apply its jurisdiction to

all those new cases which from the progress daily made in the affairs of men must continually

arise and not from too strict an adherence to forms and rules established under very different

circumstances decline to administer justice and to enforce rights for which there is no other

remedy."

Similarly, the view expressed by the great jurist Shri Banerjee in Tagore Law

Lectures as far back as in 1906 may be remembered by us as a good guide even today in this

field of law. Banerjee said: ‘Since an obligation includes every duty enforceable by law this

form of specific relief, it would appear, is applicable to all cases where one person can

enforce a duty against another, or to use the correlative term, where one person is vested with

a right which empowers him to constrain the other to adopt a particular line of conduct, or to

do or abstain from doing a particular act. This right mayor may not arise out of a contract,

and the remedy of injunction, by which preventive relief is granted by a Court, may be held

to be available throughout the whole range of the law, But the jurisdiction is carefully defined

in part Ill, Specific Relief Act, and to some extent circumscribed. It still remains, however, a

vast and expansive jurisdiction, and forcibly illustrates the power of equity, in spite of the

fetters of codification, to march with the times and adjust the beneficial remedies to altered

social conditions and the progressive needs of humanity.'

Mr. H.C. Joyce also in his Law of Injunctions has expressed identical views. He says,

‘As a remedy for preventing wrongs and preserving rights, the injunction has been regarded

as more flexible and adjustable to circumstances than any other process known to law. The

correctness of the estimate is seen in the readiness with which injunctions yield to the

convenience of the parties, the case with which damages are substituted in their place when

justice and public interest so require, the facility with which a preventive and a mandatory

injunction are made to co-operate so that by single exercise of equitable power an injury is

both restrained and repaired, and the facility with which injunctive relief can be applied to

new conditions and adjusted to the changing emergencies of modern enterprise. In this

connection it may be declared that as writ of injunction my be said to be a process capable of

more modification than any other in the law, it is so malleable that it may be moulded to suit

the various circumstances and occasions presented to a Court of Equity. It is an instrument in

its hands capable of various applications for the purpose of dispensing complete justice

between the parties. It may be special, preliminary, temporary or contracted, in short it is

adopted, and is used by Courts of Equity, as a process for preventing wrong between, and

preserving the rights of parties in controversy between them...so, where, too, if a party cannot

at once comply with an injunction without being put to great expense or grievous annoyance,

the Court may order that the injunction do not commence until after a certain stated period.

Injunction should not be denied on the ground of its novelty in application, if the exigencies

of the situation required it and if it does not militate against statutory provision. The Courts

should act according to justice, equity and good conscience, when there is no specific rule

applicable to the circumstance of the case."

Once the aforesaid basics of this equity jurisdiction become clear, there may not be

any difficulty in its application to various situations - One may be called upon to grant
injunction in various kinds of disputes which may be commercial non- commercial, marital,

non-marital, encroachment over civil rights etc. The list of these situations cannot be given

here. A civil dispute calling for a preventive relief may come before one in any shape and

then one may be guided by principles of equity, justice and good conscience in granting

relief. The hesitation should not be there when equitable consideration demand and justify it.

Temporary Injunction:

So far as the grant of temporary injunctions Is concerned, it used to be a small step

during the progress of the suit or proceeding towards the preservation of its subject matter

which could be property or any other right has now gained enormous importance and

sometimes it becomes even more important than the final result of the suit or proceedings

with the change of the time. The society in general and Judiciary in particular is passing

through a very trying time where the moral values are at their lowest ebb and there does not

appear any prospect of coming them up in near future. The dilemma of the Judicial Court or

Tribunal is that initially it has to treat the truth and falsehood at par and has to give the same

treatment, protection and hearing until it concludes its investigation to find out which is right

or wrong, false or true. This process takes a long time during which by some interim measure

the subject matter of the dispute between the parties has to be preserved, and it is this anxiety

for preservation of the property on the part of the Judicial Court, which is misused and

abused by the side which has come before the Court with a wrong or false case or a doubtful

case which had been filed only to take a chance. This category of the unscrupulous litigant

once succeeds in obtaining the interim injunction in their favour, they try to prolong

proceedings and cause irreparable damage and harm not only to their opposite side but also to

the reputation and faith of the public on Courts. Hence, it is high time that the Courts at all

levels should be very cautious, alert and vigilant while granting temporary injunction during

progress of the suit or proceedingSection

37(1) of the Specific Relief Act, 1963, deals with the temporary injunctions

which are such as are to continue until a specified time or until further orders of the Court and

they may be granted at any stage of the suit or proceedings and are regulated by the Code of

Civil Procedure-

Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the

Court may in order to prevent the ends of justice from being defeated, grant a temporary

injunction or make such other interlocutory order as may appear to the Court to be just and

convenient. Section 95 further provides that where in any suit a temporary injunction is

granted and it appears to the Court that there were no sufficient grounds, or the suit of the

plaintiff falls and it appears to the Court that there was no reasonable or probable ground for

instituting the same. The Court may on application of the defendant award reasonable

compensation which may be to the extent of the pecuniary Jurisdiction of the Court trying the

suit. The procedure with regard to the grant of temporary injunction and interlocutory orders

has been provided in Order 39 of C.P.C., as far as this State is concerned, drastic changes

were brought about by amending the provisions contained in Order 39 by U.P. Act No. 57 of

1976. In Sub-Rule (2) of Rule 2 of Order 39, a proviso was inserted by which power of the

Court to grant injunction was taken away in certain matters. Further a proviso was added in

Rule 3 which provided that where it is proposed to grant an injunction without giving notice

of the application to the opposite party, the Court shall record the reasons for its opinion that

the object of granting the injunction would be defeated by the delay and require the applicant

to serve the copy of the order of injunction along with copy of the application, affidavit,

plaint and other documents relied on by him. Further, he has also been required to file on the

same day on which the injunction is granted, an affidavit stating that the requirements

contained in Proviso (a) have been complied with. Rule 3(e) further contains a very important
provision which requires the Court to make an endeavour to finally dispose of the application

within 30 days from the date on which the Injunction was granted and where it is unable to do

so it shall record its reasons for such inability. Thus by introducing the aforesaid amendment

an attempt was made to minimise the hardship and harassment caused by the injunction

orders passed exparte.

Identical provisions were included in Article 226 of the Constitution by substituting

Clause (3) thereof which provides that if an interim order is passed exparte and the party

concerned makes an application to the High Court for vacation of such order, the High Court

has to dispose of the application within a period of two weeks and if the application is not so

disposed of, the interim order, on the expiry of that period shall stand vacated, There are

other local laws also, where the power of the Court or the Tribunal in granting the injunction

or stay orders has either been taken away or has been regulated by providing stringent

conditions to prevent hardship loss or harassment to the opposite party. It is not necessary to

mention a catalogue of such local laws and Central Acts as one come across such laws every

day. However, it is a different matter altogether as to how far these legislative measures have

succeeded to achieve the object to minimise the hardship to the opposite party and to prevent

the abuse of the injunction or interlocutory orders passed by the Courts during suits.

In my opinion, the aforesaid legislative efforts have not been able to achieve their

object. The effect of the amendments made in the provisions contained in Order 39 C. P. C.

may be mentioned which instead of remedying the situation has created further problems and

complicated the Issue. The first price has to be paid by the High Court itself, which has been

run over by a large number of writ petitions filed before it for those causes which were

normally being agitated by filing suits in civil court. The situation in High Courts has become

so grim and difficult that the pendency of the cases has crossed five lakhs and the time taken

in deciding the writ petitions is now more than ten to fifteen years. No body could have
contemplated this state of affairs at the time the amendments were brought about by U.P. Act

No.57 of 1976. The second price, which has been paid by the Bar. Is that the filing of the

original suit in every district has declined to such an extent that the growth and progress of

the Civil Bar has stopped. Now the position in District Courts as well as in High Court is that

it Is difficult to find out a good civil lawyer. The growth of civil law has also come to a

standstill which Is a matter of great concern. The loss of trust shown by the legislature in

subordinate judiciary by taking away the power of granting injunction in the matters

enumerated In the Proviso to Sub-Rule (2) of Rule 2 of Order 39 has in fact rendered a disservice

of bigger magnitude than remedying the situation for which it was enacted. It will be

better for the State, the High Court and the Judiciary as a whole and also to the Bar, if this

proviso is deleted from Order 39, at the earliest.

Now, coming to the role of the Presiding Officer of the Court while granting order of

injunction or other interlocutory order, it should always be kept in mind that its origin is from

equitable jurisdiction and before passing the order the claim must be tested on all principles

of equity. The normal requirements that the applicant praying for the injunction should have a

good prima facie case, chance of suffering irreparable injury and balance of convenience is in

his favour and other principles connected with the matter, the Court should have extra

cautious approach in testing the prima facie case with a certain amount of extra rigour to

avoid the abuse of the process of the Court. As already mentioned earlier, we are passing

through a difficult time with the population explosion, the pressure on the property has

Increased to its maximum and it is likely to go further. In these days the grabbing of the

private and Government property has become the fashion of the day. Documents are being

manufactured and manipulated and on basis of such documents orders are obtained. The

modus oprendi in such cases is that property grabbers manufacture false documents, then file
a suit or proceeding and obtain orders. Knowing well that the suit will take its own time, they

succeed in their object. I came across a case which may be quoted here as example and which

may also be reminder to all of us that knowingly or unknowingly Injunction or interlocutory

orders may not be passed In such matters.

A writ petition was filed for quashing F.I.R. lodged against the petitioner under

Sections 420/ 467/468/471 I.P.C. The facts of the case were that the petitioner fined a suit

with the allegation that P.W.D. Rest House has been leased out in his favour by the Executive

Engineer on a rent of Rs. 500/- per month for a period of 90 years which was decreed in his

favour, as no body put In appearance for contest. Petitioner occupied the bungalow and

rennovated it by investing huge amount. However, when the authorities tried to dispossess

him he filed writ petition in the High Court and In view of the decree passed In his favour a

Division Bench of the High Court issued a mandamus in his favour directing the authorities

not to dispossess petitioner except In accordance with law from the property In dispute. The

F.I.R. was lodged thereafter by the district authorities for prosecuting the petitioner, which

was challenged In Court. One can very well imagine when this property shall be restored to

the Government. Where lay the failure, it is a matter for consideration.

Hon'ble Supreme Court in a recent case has laid down that property-grabbers, taxevaders,

bank loan dodgers and other unscrupulous persons from all walks of life find the

court- process a convenient lever to retain the Illegal gains indefinitely. A bench comprising

Mr. Justice Kuldip Singh and Mr. Justice P .B. Sawant noted while imposing Rs. 11,000/-

costs on a litigant, Mr. Jagannath. He had played fraud to secure an order in his favour from

the High Court.

“Frauds avoid all judicial acts, acclesiastical or temporal, “the court recalled the

observation made over three centuries ago by the then chief Justice of England, Lord Edward

Coke. Any decree or judgment obtained by playing fraud on the court is “a nullity and nonest
in the eyes of law" the apex court ruled while setting asi~e the High court's verdict In favour

of Mr. Jagannath.

Such a decree or judgment passed either by the first court or by the highest court must

be treated as a “nullity by every court it can be challenged in any court even in collateral

proceedings," the judges added.

The judgment is a fall out of the appeal made by the heirs of one S.P., Chengelveraya

alleging that Mr. Jagannath had obtained the first decree by fraud. The High Court, however,

set aside the trial court's order against Mr. Jagannath, it had also noted that "there is no legal

duty cast upon the plaintiff to come to court with a true case and prove it by true evidence. "

Setting aside the High Court's judgment, the apex court said it had fallen into "patent

error". The High Court had gone haywire and made observation which were "wholly

perverse".

Disagreeing with the High Court's view that no legal duty had been cast upon the

plaintiff (Mr. Jagannath) to come to court with a true case and prove it by evidence, the apex

court observed that "the principle of 'finality of litigation' cannot be pressed to the extent of

such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.

The courts of law are meant for imparting justice between the parties, the judges

noted. They added that "one who comes to the court, must come with clean hands. More

often than not, process of court is being abused."

Elaborating in the light of the present case, the court said a fraud is an act of

deliberate deception with the design of securing something by taking unfair advantage of

another. It is a deception in order to gain by another's loss. It is a cheating intended to get an

advantage. Non-disclosure of the facts amounts to "playing fraud on the Court"

The judicial officers must take extra cautiousness and alertness while granting orders
of injunction. Their test to the prima facie case and other allied considerations should be

rigorous. The rule should be to grant injunction or interlocutory orders only after hearing

parties and only in very exceptional cases; the exparte orders should be passed. If it is not

done, the very existence of this entire judicial system shall be under peril.

[J.T.R.I. JOURNAL – Second Year, Issue – 4 & 5 - Year – March, 1996]

Section 37 of Specific Relief Act, 1963 provides that "temporary Injunction 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." The procedure for seeking temporary injunction has been provided under Order XXXIX of the Code
of Civil Procedure, 1908. However, an injunction being discretionary equitable relief cannot be granted
when equally efficacious relief is obtainable in any other usual mode or proceeding.

In Agricultural Produce Market Committee Case1, the Hon'ble Apex Court has held that "a temporary
injunction can be granted only if the person seeking injunction has a concluded right, capable of being
enforced by way of injunction."

The Hon'ble Apex Court through catena of judgments like landmark judgment in Gujarat Bottling Co. Ltd.
Case2, held that the Court needs to follow certain guidelines while considering an application for grant
of temporary injunction, some of which are briefly stated hereunder:

The applicant seeking relief of temporary injunction shall have to establish a prima facie case in his
favour. For this purpose, the Court will not examine the merits of the case rather only the basic facts on
which it is established that the applicant has a prima facie case to contest. Thereafter the applicant also
has to establish that the allegations / averments made in the application on which the temporary
injunction is sought are plausible.

The court will also examine the conduct of the applicant and such conduct needs to be examined even
at the stage where the application for setting aside an order under Order XXXIX Rule 4 of the Code of
Civil Procedure, 1908 is filed.

The court has to examine the balance of convenience i.e. the balance of comparative loss caused to the
applicant and the respondent in the case of not passing the order.

The court will first of all will examine what is the extent of loss that would be caused to the applicant if
the order is not passed and also whether it is reparable by monetary compensation i.e. by payment of
cost. Then it will examine the loss suffered by respondent if the order is passed and thereupon it has to
see which loss will be greater and irreparable. The party who would suffer greater loss would be said to
be having balance of convenience in his favour and accordingly, the court will pass or refuse to pass the
order.

The court has the power also to ask the party to deposit security for compensation or to give an
undertaking for the payment of the compensation, if ordered.

It is to be understood that relief of temporary injunction cannot be sought for some right which would
arise in future. Similarly, an injunction cannot be obtained to restrain a party from filing a suit. In Seema
Arshad Zaheer Case3, the Hon'ble Supreme Court has indicated the salient features of prima facie case
as under:

"The discretion of the court is exercised to grant a temporary injunction only when the following
requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating
protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of
the plaintiff's rights is compared with or weighed against the need for protection of the defendant's
rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the
plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary
injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to
grant such relief will be exercised only when the plaintiff's conduct is free from blame and he
approaches the court with clean hands."

However, in Best Sellers Retail India (P) Ltd. Case4, the Hon'ble Supreme Court observed that prima facie
case alone is not sufficient to grant injunction and held that:

"Yet, the settled principle of law is that even where prima facie case is in favour of the plaintiff, the
Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of
temporary injunction was not irreparable."

Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 provides for ex-parte temporary injunction in
the cases of extreme urgency. However, Rule 3 does not stipulate a separate application for ex-parte
injunction rather such an application should be a part of an application for a bi-parte temporary
injunction and in such application an urgency shall be shown by the applicant so as to warrant the
passing of an ex-parte injunction/order. However, such an order has to be temporary. The essential
safeguards in this regard are briefly stated as under:

The matter should be urgent and overwhelming.

The other elements for the grant of temporary injunction order as explained in the Gujarat Bottling case
shall be existing.

The court shall record reasons for the grant of exparte order.

It is the duty of the applicant to serve a notice to the other party after the order has been passed and
such notice shall be coupled with a copy of the application, the plaint, the affidavit and any other
document which were filed in support of the application. Upon serving such notice, the applicant shall
on the same day of the order or on the next day file an affidavit of his having served such a notice.

Under Order XXXIX Rule 3A of the Code of Civil Procedure, 1908, it is a mandate for the Court that after
passing such an ex-parte order, it shall continue with the bi-parte proceedings and shall dispose of the
application within 30 days. However, the said 30 days period is not the upper limit for ex-parte orders
i.e. the ex-parte order will not get automatically vacated upon the lapse of 30 days rather it can further
be extended beyond 30 days in extreme cases.

The Hon'ble Supreme Court in Morgan Stanley Case5, inter alia observed the under mentioned
guidelines for grant of temporary injunction besides others:

Where irreparable or extremely serious injury will be caused to the applicant, ex-parte order can be
passed;

The court shall examine the time when the plaintiff got notice of the act complained;

If the plaintiff has acquiesced to the conduct of the respondent then ex-parte temporary injunction shall
not be passed;

The applicant shall be acting in utmost good faith; and

Such an order shall be for a temporary period.