Injunctions

Injunction means the orders of the Court directing a party to the

proceedings to do or not to do certain act. Injunction may be issued
only against a party and not against a stranger or 3rd party.

Injunctions

Temporary Perpetual

Section
37(1), Order
Positive Negative
39, Section
94 , Section
151
Mandatory Section 38
(Section 39)
Preventive

Exception When it can be When it can

(Section 42) refused be granted
Depends on (Section 41) (Section 38)
Contract
 1. Preventive Injunction
Meaning : Preventive relief is said to be such a relief by which a
person is prevented to do an act, which is not validly liable to do.
When the Court prevents a Party from doing that which he is
under an obligation not to do it is called preventive relief. Such
relief is usually granted to prevent breach of contract or the
violation of right arising otherwise than by contract.
Section 36. Preventive relief how granted.
Preventive relief is granted at the discretion of the court by
injunction, temporary or perpetual.
Illustration
• X is constructing a wall in Y's Land. At the suit of Y by
providing him preventive relief X can be prohibited to do so
because X is not legally liable to do so.
• A and B are residing in the same Society. B wanted to trespass
the A premises unlawfully. A claim before competent court for
Injunction to direct B that “B should not enter A premises”.
Telling not to do a certain kind of act is a Preventive
Injunction.
In Executive Committee of Vishya Degree College, Shamli v.
Lakshmi Narayan(1976 SC), the court held that the relief of
Injunction cannot be granted or obtained as of right, the granting of
relief or injunction is discretionary. The relief has to be granted by
the court according to sound legal principles and ex debito justitiae.
The Latin term “ex debito justitiae” means what a person is
entitled to as of right. It means a remedy that the court has no
discretion to refuse. Thus, the applicant has the remedy as of right.
Section 37. 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.
2. Temporary Injunction
The temporary Injunction is been granted by the Court when the
Defendant is about to the make some injury to the property of the
Plaintiff or threatens the Plaintiff to dispossess the property or
creates a thirty party interest in the property, then in such
situation, the Court may grant a temporary injunction to restrain
the Defendant to do such an act or make other order to prevent the
dispossession of the plaintiff or prevent the causing of injury to the
plaintiff in relation to any property in dispute or creating any thirty
party rights in the property.
Temporary injunction is an interim remedy that is raised to reserve
the subject matter in its existing condition and which may be
granted on an interlocutory application at any stay of the suit. Its
purpose is to prevent the suspension of the plaintiff’s rights.
Section 94 of the CPC provides the supplemental proceeding so that
Plaintiff can prevent this right, wherein Section 94 (c) and (e) of
Code of Civil Procedure, the Court may grant a temporary
injunction or make such other interlocutory orders. These are
temporary injunction because its validity is until the further order
passed by the court or until the final decree of the case.
Further the ad-interim injunction is granted during the pendency
of the application and operates till the disposal of the application.
In Ramrameshwari Devi vs. Nirmala Devi and Ors.(2011),the
Supreme Court held that, the Court should be extremely careful
and cautious while granting ex-party ad interim injunctions or stay
orders. Ordinarily a short notice should be issued to the
Defendant/Respondent and only after hearing both the parties
concerns Court can pass the appropriate orders.
Who may apply
An application for interim injunction along with affidavit may be
made both Plaintiff or Defendant. Order 39 Rule (1) a, any party to
the suit can apply for a Temporary Injunction.
An Injunction may be issued only against a party and not against a
stranger or third party. Further, the injunction cannot be issued
against the Court or Judicial Officers.
 Grounds
Section 95 read with Order 39 Rule 1 and 2 empowers the Court to
pass the temporary injunction:
• When there is a reasonable apprehension and danger of
alienation or disposal of property by any party to the suit or
by wrongful waste of the property; or
• When there is an apprehension of alienation or disposal of
the property to defraud creditors; or
• Where Defendant threatens to dispossess the Plaintiff or
otherwise causes injury to the interest of the Plaintiff or
otherwise causes injury to the interest of Plaintiff in relation
to the disputed property; or
• When the Defendant is about to commit a breach of
contract; or
• Any other injury is likely to be caused or likely to be
repeated; or
• Where the Court is of the opinion that for protection of
interest of any party to the suit or in the interest of justice
injunction or stay is required and necessary.
Basic Principles
No hard and fast rule can be laid down for guidance of the court to
that effect. Therefore, it is well settled that, before granting the
Temporary Injunction, the Judge has to consider whether the
Application is falling into below-mentioned categories/ has Plaintiff
shown following points :
 1. Prima Facie Case
In every application, the Applicant/Plaintiff must make out a prima
facie case in support of the right claimed by the Plaintiff. The Court
should be pleased that there is a bonafide dispute between the
parties wherein the investigation is needed. The Plaintiff is given the
burden to prove and satisfy the court by leading evidence or witness
that he has a prima facie case in his favour. The plaintiff should
come to Court with clean Any material facts are suppressed by the
Plaintiff then, in that case, the Plaintiff is not liable for any relief.
In Martin Burn Ltd v. R.N.Banerjee(1958), the Supreme Court
held that a prima facie case does not mean a case proved to the hilt
but a case which can be said to be established if the evidence led in
support of the same were believed. It does not involve the
determination of the conflict of evidence or complex questions of
fact and law, which call for detailed arguments.
It further requires that the Plaintiff should come before the Court
with clean hands. If he suppresses material facts and evidence then
he is not entitled for the relief of injunction and further points of
balance of convenience, irreparable injury need not be considered in
such case.
In Prakash Singh vs. State of Haryana (2002), the Court has
explained that Prima Facie does not mean that a Plaintiff/Applicant
should have a full proof case in his favour which will succeed in all
probabilities. It means that the plaintiff/applicant has a case which
cannot be rejected summarily or dismissed out right. It raises
consideration which can be considered on merits.
2. Irreparable Injury
The applicant must satisfy the court that he will suffer irreparable
injury if the injunction is not granted. The Court is satisfied that
the Plaintiff needs to be protected from the consequences of
apprehended injury. An injury will be viewed as irreparable wherein
there exists no certain monetary standard for calculating damages.
The expression irreparable injury however does not mean that there
should be no possibility of repairing the injury. It only means that
the injury must be a material one. i.e. which cannot be adequately
compensated by damages. An injury will be regarded as irreparable
where there exists no certain pecuniary standard for measuring
damages.
The Supreme Court in Shanti Kumar Panda v. Shakuntala
Devi(2003), where the court held thus: ‘At the stage of passing an
interlocutory order such as on an application for the grant of ad
interim injunction under Rule 1 or 2 of Order 39 of the CPC, the
competent Court shall have to form its opinion on the availability of
a prima facie case, the balance of convenience and the irreparable
injury,the three pillars on which rests the foundation of any order of
injunction.
In Best Sellers Retail India (P) Ltd. vs. Aditya Nirla Nuvo Ltd.
(2012 ), the Hon’ble Supreme Court held that only prima facie case
alone is not sufficient to grant injunction and the Court 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.”
3. Balance of Inconvenience
The Applicant must prove in this application that there is the
balance of convenience must be in favour of the applicant i.e.
the comparative mischief, hardship or inconvenience which is
likely to be caused to the Applicant if the injunction is been
refused. The balance of convenience comes into the picture when
there is doubt as to the adequate remedies in damages available to
either party or both.
In Bikash Chandra Deb v. Vijaya Minerals Pvt. Ltd. (2005), the
Hon’ble Calcutta High Court observed that issue of balance of
convenience. The Court shall slender in favour of overview of the
concept of balance of convenience, but does not mean and suggest
that the balance would be on one side and not in favour of the
other. There must be proper balance between the parties and the
balance cannot be a one-sided affair.
4. He who comes into equity must come with clean hands.
The person seeking relief must not himself guilty of illegal or
immoral conduct with regard to the same transaction which would
disqualify him to any assistance of the court. The court of equity
will take into consideration, the personal conduct of the plaintiff in
the transaction in dispute and if he had not sought the help of the
court with clean hands, the court will refuse to grant him relief.
 5. Other Factor
The Court also considers some other factors before granting
injunction. The relief of injunction may be refused on the ground of
delay, laches or acquiescence or whether the applicant has not
come with the clean hands or has suppressed material facts, or
where monetary compensation is adequate relief.
3. Permanent or Perpetual Injunctions
Perpetual/Permanent Injunctions is granted by the courts to
restrain the party forever from doing the act complained of.
However, this perpetual or permanent injunction can only be
granted after final hearing and decree has been passed by the court
and this is completely decided on the merits of the case. Permanent
or Perpetual Injunctions are governed by section 38 to 42 of Specific
Relief Act, 1963. It determines the rights and liabilities of the
parties finally.
Section 38. 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;
(d) where the injunction is necessary to prevent a multiplicity of
judicial proceedings.
Illusrations
• A lets certain land to B, and B contracts not to dig sand or
gravel thereout. A may sue for an injunction to restrain B from
digging in violation of his contract.
• A trustee threatens a breach of trust. His co-trustees, if any,
should, and the beneficial owners may, sue for an injunction
to prevent the breach.
• The directors of a public company are about to pay a dividend
out of capital or borrowed money. Any of the shareholders may
sue for an injunction to restrain them.
• The directors of a fire and life-insurance company are about to
engage in marine insurances. Any of the shareholders may sue
for an injunction to restrain them.
• A, an executor, through misconduct or insolvency, is bringing
the property of the deceased into danger. The Court may grant
an injunction to restrain him from getting in the assets.
• A, a trustee for B, is about to make an imprudent sale of a
small part of the trust-property. B may sue for an injunction
to restrain the sale, even though compensation in money
would have afforded him adequate relief.
• A makes a settlement (not founded on marriage or other
valuable consideration) of an estate on B and his children. A
then contracts to sell the estate to C. B or any of his children
may sue for an injunction to restrain the sale.
• In the course of A’s employment as a vakil, certain papers
belonging to his client, B, comes into his possession. A
threatens to make these papers public, or to communicate
their contents to a stranger, B may sue for an injunction to
restrain A from so doing.
• A is B’s medical adviser. He demands money of B, which B
declines to pay. A then threatens to make known the effect of
B's communications to him as a patient. This is contrary to A's
duty, and B may sue for an injunction to restrain him from so
doing.
• A, the owner of two, adjoining houses, lets one to B and
afterwards lets the other to C. A and C begin to make such
alterations in the house let to C as will prevent the comfortable
enjoyment of the house let to B. B may sue for an injunction
to restrain him from so doing.
• A lets certain avable lands to B for purposes of husbandry, but
without any express contract as to the mode of cultivation.
Contrary to the mode of cultivation customary in the district,
B threatens to sow the lands with seed injurious thereto and
requiring many years to eradicate. A may sue for an injunction
to restrain B from sowing the lands in contravention of the
implied contract to sow them in a husbandry like manner.
• A, B and C are partners, the partnership being determinable
at will. A threatens to do an act tending to the destruction of
the partnership property. B and C may, without seeking a
dissolution of the partnership, sue for an injunction to
restrain A from doing the act.
• A, a Hindu widow in possession of her deceased husband's
property, commits destruction of the property without any
cause sufficient to justify her in so doing. The heir-expectant
may sue for an injunction to restrain her.
• A, B and C are members of an undivided Hindu family. A cuts
timber growing on the family-property, and threatens to
destroy part of the family-house and to sell some of the family-
utensils. B and C may sue for an injunction to restrain him.
• A, the owner of certain houses in Calcutta, becomes insolvent,
B buys them from the Official Assignee and enters into
possession. A persists in trespassing on and damaging the
houses, and B is thereby compelled at considerable expense,
to employ men to protect the possession. B may sue for an
injunction to restrain further acts of trespass.
• The inhabitants of a village claim a right of way over A’s land.
In a suit against several of them, A obtains a declaratory
decree that his land is subject to no such right. Afterwards
each of the other villagers sues A for obstructing his alleged
right of way over the land. A may sue for an injunction to
restrain them.
• (g) A, in an administration-suit to which a creditor, B, is not a
party, obtains a decree for the administration of C’s assets, B
proceeds against C's estate for his debt. A may sue for an
injunction to restrain B. (r) A and B are in possession of
contiguous lands and of the mines underneath them. A works
his mine so as to extend under B's mine and threatens to
remove certain pillars which help to support B’s mine. B may
sue for an injunction to restrain him from so doing.
• A rings bells or makes some other unnecessary noise se near a
house as to interfere materially and unreasonably with the
physical comfort of the occupier. B may sue for an injunction
restraining A from making the noise.
• A pollutes the air with smoke so as to interfere materially with
the physical comfort of B and C, who carry on business in a
neighbouring house, B and C may sue for an to restrain the
pollution.
• A infringes B's patent. If the Court is satisfied that the patent
is valid and has been infringed. B may obtain an injunction to
restrain the infringement.
• A pirates B's copyright. B may obtain an injunction to restrain
the piracy, unless the work of which copyright is claimed is
libellous or obscene.
• A improperly uses the trademark of B, B may obtain an
injunction to restrain the user, provided that B's use of the
trademark is honest.
• A, a tradesman, holds out B as his partner against the wish
and without the authority of B, B may sue for an injunction to
restrain A from so doing.
• A, a very eminent man, writes letters on family-topics to B.
After the death of A and B, C who is B's residuary legatee,
proposes to make money by publishing A's letters. D, who is
A's executor, has a property in the letters, and may sue for an
injunction to restrain C from publishing them.
• A carries on a manufactory and B is his assistant. In the
course of his business. A imparts to B, a secret process of
value. B afterwards demands money of A, threatening, un a
case of refusal, to disclose the process to C, a rival
manufacturer. A may sue for an injunction to restrain B from
disclosing the process.
When perpetual injunction arises
• There must be breach of an obligation or infringement of a
legal right.
• The possession must be lawful possession.
• Juridical possession also can be protected.
• Whether symbolic delivery is sufficient to sustain an action for
injunction.
• Suit for injunction by a person in possession without title.
• Injunction against a lessee.
• Injunction against a lessor.
• Injunction in case of co-owners.
• Injunction is case of nuisance.
 • Injunction in case of Easementary rights.
• Injunction against a trustee.
• Injunction to prevent waste.
• Injunction to prevent trespass.
• Injunction in case of Companies.
• Injunction against Government.
• Suit for injunction by a person entering into possession
lawfully on basis of agreement of sale.
• Suit for declaration and injunction.
In Ananthula Sudhakar v. P. Buchi Reddy (2008 SC), a suit for
permanent injunction to restrain the defendant from interfering
with plaintiff's possession, the plaintiff will have to establish that as
on the date of the suit he was in lawful possession of the suit
property and defendant tried to interfere or disturb such lawful
possession. But what if the property is a vacant site, which is not
physically possessed, used or enjoyed?
In such cases the principle is that possession follows title.
1) suit for injunction can also be maintained by a person with a
better title.
2) person in wrongful possession cannot seek injunction
3) when person title is in dispute then he can seek for injunction
4) when person is dispossessed then he has to seek for possession
plus injunction
5) when person is in possession but his title is in dispute then he
can seek for declaration plus injunction
6) when person title is in dispute and he is dispossessed then he
can seek for declaration plus possession plus injunction
4. Mandatory Injunction
The Competent Court can grant the Mandatory Injunction to do
some positive act or compels, commands or orders some person to
do something in a particular manner. Section 39 of Specific Relief
Act, 1963 does not define but categorically deals with the grant of
Mandatory Injunction.
Section 39. 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 injunction to
prevent the breach complained of, and also to compel performance
of the requisite acts.
In mandatory Injunction two elements has to be taken into
consideration before granting Mandatory Injunction:
• There must be an obligation on the part of the defendant to
perform certain acts, the breach of which obligation, must be
alleged by the plaintiff.
• Relief must be enforceable by the court.
Example: “A” a tenant, without the permission of the Landlord has
built a garden terrace which is an addition to the rented house.
According to the leave and License agreement, “A” has to take prior
permission of the Landlord to do any type of
alterations/addition/changes to the rented house. So here “B” may
seek a mandatory injunction to demolish the garden terrace
which “A” has built without the permission of the Landlord.
So basically, Mandatory Injunctions are sometimes availed of as
reliefs in the nature of ‘quia timet’, that is, in a proper case,
mandatory injunction may be granted when there is a threat of
infraction of the plaintiff’s right before the infraction has actually
occurred.
Quia timet is an injunction to restrain wrongful act which are
threatened or imminent but have not yet commenced.
In Fletcher v. Bealey (1884), stated the necessary conditions for
equity Courts to properly grant an injunction in such cases:
• proof of imminent danger;
• proof that the threatened injury will be practically irreparable;
and
• proof that whenever the injurious circumstances ensue, it will
be impossible to protect plantiff’ s interests, if relief is denied.
Section 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.
Section 41. 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 a court not sub-ordinate 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;
(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;
(ha) if it would impede or delay the progress or completion of any
infrastructure project or interfere with the continued provision of
relevant facility related thereto or services being the subject matter
of such project. [ Ins. by Act 18 of 2018, s. 13 (w.e.f. 1-10-2018)]
(i) when the conduct of the plaintiff or his agents has been such as
to disentitle him to be the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
42. Injunction to perform negative agreement.
Notwithstanding anything contained in clause (e) of section 41,
where a contract comprises an affirmative agreement to do a certain
act, coupled with a negative agreement, express or implied, not to
do a certain act, the circumstance that the court is unable to
compel specific performance of the affirmative agreement shall not
preclude it from granting an injunction to perform the negative
agreement:
Provided that the plaintiff has not failed to perform the contract so
far as it is binding on him
Object
In L.I.C. Corporation of India v. Iqbal Kaur(1984 J.&K.), the
Court said that the object of Section 42 is to provide a perpetual
bulwark against adverse attacks on the title of a plaintiff, where a
cloud is cast upon it, and to prevent further litigation by removing
the existing cause of controversy. But the threat to his right has to
be real and not imaginary.
Applicability
In Mool Raj v. Atma Ram(1986 J.&K.), the Court held that the
plaintiff in a suit for declaration has to depend on his own right and
title and if that right or title is denied or affected by the other side, a
declaratory suit can - be maintained. Without showing his own
right, the plaintiff cannot claim declaration in the negative form as
regards the status of the defendant. Unless the plaintiff shows in
the plaint that his civil rights are likely to be affected by the
defendant's status or the defendant has denied his civil rights, a
suit for declaration would not be maintainable.
Injunction to prevent negative agreement
In Gujarat Bottling Co. Ltd. v. Coca Cola Company(1995 SC) ,
the Court said that an injunction to enforce a negative covenant
would be refused if it would indirectly compel the employee either to
idleness or to serve the employer..