LAW OF CONTRACTS

Injunctions

Grant of preventive relief or injunctions (section 36 of Specific relief Act)

According to section 36 preventive relief is granted at the discretion of the court by
injunction temporary or perpetual. A preventive relief (injunction) is an order or command of
the court preventing a party from doing something which he is under a 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.
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 likely to be caused to the defendant by the
issue of injunction.
There are two types of injunction i.e Temporary and Perpetual Injunctions. (Section 37 of
Specific Relief Act)
Temporary injunctions [Section 37(1)]
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 merits.

Perpetual injunction [section 37(2)]

A perpetual injunction can only be granted by the decree made at the hearing upon the merits
of the suit. The defendant is thereby perpetual enjoined from the assertion of a right or from
the commission of an act which would be contrary to the rights of the plaintiff.
Section 37(2) is a general provision stating that a perpetual
injunction can only be granted by a decree made at the hearing and upon merits of the case.

Cases in which temporary injunctions may be granted:

Where in any suit it is provided by affidavit or otherwise-
 (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
(b) That the defendant threatens or intends to remove or dispose of his property with a
view to defrauding his creditors.
(c) That the defendant threatens to dispossess the plaintiff or otherwise cause injury to 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
order for the purpose of staying and preventing the wasting damaging alienation sale
removal or disposition of the property or dispossession of the plaintiff or otherwise
causing injury to the plaintiff in relation to any property in dispute in the suit as the
court thinks fit until the disposal of the suit or unitl further orders.
Suit for specific performance and injunction order of injunction restraining defendants
from causing any interference with possession of plaintiffs over suit property proper.
When agreements to sell in respect of suit land had been executed defandants in
favour of plaintiff. They had been put in possession of land. Huge amount was paid as
consideration to defendants. But defendants were avoiding to execute sale deeds and
interfering with plaintiffs possession over land.
As plaintiffs had prima facie case, re-informed by consideration of balance of
convenience and irreparable case loss in favour hence order of injunction restraining
defendants, pending suit from causing any interference with possession of plaintiffs
over suit property was proper.1
Order directing demolition of construction for protection of easementary rights-
Where there was allegation of construction made in deviation of sanction building
plan. Corporation was the sole agency for granting license for construction but said
corporation was not impleaded as party. Order directing demolition of construction
for protection of easementary rights was liable to be set aside.2

1
Saleema vs habibullah, AIR 2005 J & K. 1
2
Rohini Bai vs B.L. Rajashri, AIR 2005 Kant. 115
NO INJUNCTION AGAINST EXERCISE OF LEGAL RIGHT
In Saraswathi Ammal vs Viveka Primary School,3

Permanent injunction can bind successors in interest also.

It has been held by the supreme court in Kanahiyalal vs Babu Ram,4 that the 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 co-owner was valid.

And in another case related to permanent injunction can be stated as Baban Girju Bangar vs Namdeo
Girju Bangar5 it stated that

SECTION 41- WHERE INJUNCTION CAN BE REFUSED

According to Section 41, an injunction cannot be granted or can be refused in the following
situations-

(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 proceedings 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 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.
(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 his
assistance of the court.

3
Saraswathi Ammal vs Viveka Primary School, AIR 2001 Mad. 417
4
Kanahiyalal vs Babu Ram, AIR 2000 S.C. 3507
5
Baban Girju Bangar vs Namdeo Girju Bangar AIR 1999 Bom. 46
(j) When the plaintiff has no personal interest in the matter.

RATIONALE:-

The injunction is an equitable remedy that is, a remedy that originated in the English courts of
equity. Like other equitable remedies, it has traditionally been given when a wrong cannot be
effectively remedied by an award of money damages. (The doctrine that reflects this is the
requirement that an injunction can be given only when there is "no adequate remedy at law.")
Injunctions are intended to make whole again someone whose rights have been violated.
Nevertheless, when deciding whether to grant an injunction, courts also take into account the
interests of non-parties (that is, the public interest). When deciding whether to give an
injunction, and deciding what its scope should be, courts give special attention to questions of
fairness and good faith. One manifestation of this is that injunctions are subject to equitable
defences, such as laches and unclean hands.

Injunctions are given in many different kinds of cases. They can prohibit future violations of the
law, such as trespass to real property, infringement of a patent, or the violation of a
constitutional right (e.g., the free exercise of religion). Or they can require the defendant to
repair past violations of the law.

An injunction can require someone to do something, like clean up an oil spill or remove a spite
fence. Or it can prohibit someone from doing something, like using an illegally obtained trade
secret. An injunction that requires conduct is called a "mandatory injunction." An injunction that
prohibits conduct is called a "prohibitory injunction." Many injunctions are both—that is, they
have both mandatory and prohibitory components, because they require some conduct and
forbid other conduct.

When an injunction is given, it can be enforced with equitable enforcement mechanisms such as
contempt. It can also be modified or dissolved (upon a proper motion to the court) if
circumstances change in the future. These features of the injunction allow a court granting one
to manage the behavior of the parties. That is the most important distinction between the
injunction and another non-monetary remedy in American law, the declaratory judgment.
Another way these two remedies are distinguished is that the declaratory judgment is
sometimes available at an earlier point in a dispute than the injunction.
Antitrust intervention and injunctions for patent infringement
The DOJ and the FTC have investigated patent holders in the United States for seeking preliminary
injunctions against accused infringers of standard-essential patents, or patents that the patent
holder must license on reasonable and non-discriminatory terms. There is an ongoing debate among
legal and economic scholars with major implications for antitrust policy in the United States as well
as in other countries over the statutory limits to the patent holder's right to seek and obtain
injunctive relief against infringers of standard-essential patents. Citing concerns of the absence of
competition facing the patent holder once its technology is locked-in to the standard, some scholars
argue that the holder of a standard-essential patent should face antitrust liability when seeking an
injunction against an implementer of a standard. Other scholars assert that patent holders are not
contractually restrained from pursuing injunctions for standard-essential patent claims and that
patent law is already capable of determining whether an injunction against an infringer of standard-
essential patents will impose a net cost on consumers, thus obviating the role of antitrust
enforcement.

PROHIBITORY OR MANDATORY INJUNCTION (SECTION 38 AND 39 )

A prohibitive (or prohibitory) injunction is an order that restrains the defendant from committing a
specified act. A mandatory injunction is an order that requires the defendant to act positively.

A prohibitory injunction requires the other party to refrain from doing something. They may be
obtained, for example, to safeguard confidential information acquired in the course of business; to
prevent a breach of contract; or to stop a party taking legal proceedings (an anti-suit injunction).
They can be interim or final.

The court will only grant an injunction if it is satisfied on the facts that:

 there is a serious issue to be tried;

 it appears to the court to be just and convenient to do so and the applicant has ‘clean hands’
(has not delayed unreasonably or acted improperly themselves);

 damages would not be an adequate remedy to resolve the dispute.

According to section 38 an injunction may be issued to prevent breach of obligation existing in

plaintiff’s favour. Obligation may be of any kind, it may arise out of contractual relations or it may be
under law of torts or under a trust i.e it may arise out of fiduciary relationship between the parties
or it may be even a statuatory obligation. Threatened breach of any kind of legal obligation may
invite an injunction to prevent the same.

MANDATORY INJUNCTION (SECTION 39)

According to section 39 of specific relief act, when to prevent a 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 the performance of the requisite acts. Thus in case of a mandatory injunction the court
requires the performance of the requisite act. When the injunction compels doing of some act it is
mandatory injunction but when the direction is not to do something, the injunction is prohibitory.
For instances someone illegally constructs and threatens to illegally construct on my land. The court
may order ‘demolish the illegal structure’ or may also order ‘do not construct any further structure’
the former is a mandatory injunction whereas the latter is a prohibitory injunction. To obtain
mandatory injunction the burden of proof is on the plaintiff to prove his own case. If he fails to prove
his case he will not be entitled to grant of injunction in his favours.6

The following illustrations 7 would explain the provisions regarding mandatory injunctions contained
in section 39-

(a) A, by new buildings, obstructs lights to the access and use of which B has acquired a right
under the Indian Limitations Act, Part 4. B obtain an injunction, not only to restrain A from
going on with the buildings, but also to pull down so much of them as obstructs B’s lights.
(b) A builds a house with eaves projecting over B’s land. B may sue for an injunction to pull
down so much of the eaves as so project.
(c) In the case put as illustrations (i) to section 54, the court may also order all written
communications made by B as patient, to A, as medical adviser, to be destroyed.
(d) A threatens to publish statements concerning B which would be punishable under Chapter
XXI of the Indian Penal Code. The court may grant an injunction to restrain the publication,
even though it may be shown not to be injurious to B’property.
(e) In the case, put as illustrations (y) to section 54, the court may order A’s letter to be
destroyed.
(f) A, being B’s medical adviser, threatens to publish B’s written communications with him,
showing that B has led an immoral life. B may obtain injunction to restrain the publication.
(g) In the case, put as illustrations (v) and (w) to section 54, and as illustrations (c) and (f) to this
section, the court may also order the copies produced by piracy and the trademarks,
statements and communications, therein respectively mentioned, to be given up or
destroyed.

6
Sankar Kumar vs Mohanlal Sharm, AIR 1998 Orissa 117
7
Illustrations to section 55, Specific Relief Act, 1877, which contained a similar provision.