CONTRACTS I

INJUNCTIONS

Write a note on preventive relief under the Specific Relief Act. [16]

Write a note on ‘preventive relief’. [6]

Injunction. [10]

Mandatory Injunction. [10]

Temporary Injunction. [10]

Perpetual Injunction. [10]

Distinguish between perpetual and temporary injunctions. [6]

Explain the nature of temporary injunctions and perpetual injunctions. When are such
injunctions granted by the Court? [6]

Define and classify injunctions. Distinguish between Mandatory and Prohibitory

Injunction. [16]

Introduction: According to Section 36, preventive relief is granted at the discretion of

the court by injunction temporary or perpetual.

A preventive relief 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 or defaming someone.

Discretion of the court

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.

When an injunction can be refused [Section 41 and 42]

Section 41 mentions the following circumstances when an injunction cannot be granted.

It means that in the following circumstances the injunction has to be refused.

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Stay of pending judicial proceedings

An injunction cannot be granted to restrain any person from prosecuting a judicial

proceeding pending at the institution of the suit on which an injunction is sought, unless
such restraint is necessary to prevent a multiplicity of proceedings.

Stay of proceedings in a Court not subordinate

An Injunction cannot be granted to restrain any person either from instituting, or from
prosecuting, any proceeding in a court not subordinate to that from which the injunction
is sought. It means that an injunction can only be granted to stay proceedings in courts
which are subordinate to the Court from which the injunction is sought Therefore, no
injunction can be granted to stay proceedings before the same court from which the
injunction is sought.

Restraining any person from applying to legislative body

An injunction cannot be granted to restrain any person from applying to any legislative
body. It is a matter of public policy that no person should be restrained from applying to
any legislative body, if he so likes.

Stay of proceedings in a criminal matter

An injunction cannot be granted to restrain any person from either instituting, or

prosecuting any proceeding in a criminal matter. As a matter of policy the Courts cannot
issue an injunction to stay proceedings in any criminal matter. The High Court, however,
has a power to stay criminal proceedings in the court of a Magistrate until the disposal of
civil proceedings in which the issue of criminal proceedings is to be decided.

No issue of injunction to prevent a breach of contract

According to Section 41(e) an injunction cannot be granted to prevent the breach of a

contract the performance of which would not be specifically enforced. It means that if the
contract is of such a nature that the same cannot be specifically enforced, a court will not
grant an injunction to prevent the breach of such a contract.

It has been noted above that a contract of personal service cannot be specifically
enforced, either by the master or the servant. Therefore, a person dismissed from service
cannot obtain an injunction alleging that the dismissal is wrongful, and the employer
should be restrained from dismissing him

No injunction to prevent doubtful case of nuisance

An injunction cannot be granted to prevent, on the ground of nuisance, an act of which it

is not reasonably clear that it will be a nuisance. An injunction may be granted to prevent

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an act which is proved to be nuisance. If it is doubtful whether a certain act amounts to

nuisance or not, the court will not grant an injunction to prevent the same.

No injunction to prevent continuing breach when the plaintiff has acquiesced

An injunction cannot be granted to prevent a continuing breach in which the plaintiff has
acquiesced. If the plaintiff has assented to the continuous breach of an obligation he
cannot be allowed to complain about be same and obtain an injunction to now restrain the
defendant. For instance, if A’s right of way is obstructed by B and he knowingly raises no
objection to the same for seven years and allows the obstruction to continue. In this case
A will be deemed to have acquiesced in the obstruction affecting A's right of way, and he
cannot obtain an injunction to prevent that obstruction.

No injunction when equally efficacious relief is otherwise available

An injunction cannot be granted when equally efficacious relief can certainly be obtained
by any other usual mode of proceeding except in case of breach of trust.

Plaintiff's conduct may disentitle him to an injunction

An injunction cannot be granted when the conduct of the plaintiffs or his agents has been
such as to disentitle him to the assistance of the court. It is expected that when the
plaintiff comes to the court for some relief he should come with clean hands. If he wants
equity he himself should do equity. For instance, if the plaintiff has been guilty of fraud
or misrepresentation against the defendant, he loses his right to obtain an injunction,
against the defendant.

When the plaintiff has no personal interest in the matter.

An injunction cannot be granted when the plaintiff has no personal interest in the matter.
A plaintiff cannot obtain injunction to protect the interest of someone else. Thus, if the
municipality is guilty of an ultra vires act the plaintiff cannot obtain an injunction to
restrain the same unless he proves some damage or likely damage to him or his property.

Temporary Injunction

Temporary Injunctions [Section 37(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.

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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

To obtain temporary injunction the plaintiff has to prove that there is a prima facie case
in his favour indicating existence of a legal right asserted by him. It has to be shown by
him that the balance of convenience is in his favour so that mischief likely to be caused
by the act of the defendant is prevented.

Cases in which temporary injunction may be granted.

Where in any suit it is proved by affidavit or otherwise

1. that any property in dispute in a suit is in danger of being wasted, damaged or
alienated by any party to the suit, or wrongfully sold in execution of a decree, or
2. that the defendant threatens, or intends, to remove or dispose of his property with
a view to defrauding his creditors.
3. that the defendant threatens to dispossess the plaintiff or otherwise cause injury to
the plaintiff in relation to any property in dispute in the suit,

the Court may by order grant a temporary injunction to restrain such act, or make such
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 until further orders.

Perpetual Injunction

Perpetual injunction [Sections 37(2) and 38]

A perpetual injunction can only be granted by the decree made at the bearing 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 right 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.

Circumstances for granting of perpetual injunction (Section 38)

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

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1. Subject to the other provisions contained and referred to in Chapter VIII, Specific
Relief Act, 1963, 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 for specific performance of contracts, contained in Chapter II
(i.e., Sections 9 to 25) of the Act
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
• where the defendant is trustee of the property for the plaintiff;
• where there exists no standard for ascertaining the actual damage caused
or likely to be caused, by the invasion;
• where the invasion is such that compensation in money would not afford
adequate relief;
• where the injunction is necessary to prevent a multiplicity of judicial
proceedings.

The provision contained in Section 38 may be explained through the following

illustrations: 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.

Prohibitory Injunction

Prohibitory Injunction (Section 38)

A prohibitory injunction prohibits or forbids the doing of some act and is governed by
Section 38. Such injunction may be granted to the plaintiff to prevent the breach of an
obligation existing in his favour. For instance, 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 A from doing the threatened act.

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, e.g., 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 statutory obligation.
Threatened breach of any kind of legal obligation may invite an injunction to prevent the
same.

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Mandatory Injunction

Mandatory Injunction (Section 39)

According to Section 39, 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 instance, some one illegally constructs and threatens to
illegally construct structure 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
favour.

An illustration would of a mandatory injunction is: 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

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OTHER QUESTIONS

‘Award for damages is the rule, but specific relief is an exception.” Explain [16]

State the remedy available in Specific Relief Act to a person disposed of his immovable
property. [6]

Rescission of contract [10]

Problem

A enters into an agreement with B to sing a program organized by B, but fails to do so.
Can this agreement be enforced specifically? Explain.

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