Injunction and its Types

By Subodh Asthana - June 20, 2019

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This article is written by Ashish Sharma of Rajiv Gandhi National University of Law, Patiala. The author has
discussed the concept and different types of Injunction issued by the courts.

Introduction
The term ‘injunction’ has been the subject of various attempts at a definition. It has been defined by Joyce
as, “An order remedial, the general purpose of which is to restrain the commission of some wrongful act of
the party informed”.

Burney defined injunction as, “a judicial process, by which one who has invaded or threatening to invade the
rights of another is restrained from continuing or commencing such wrongful act”.
The most expressive and acceptable definition is the definition of Lord Halsbury. According to him, “An
injunction is a judicial process whereby a party in an order to refrain from doing or to do a particular act or
thing”.

Injunction acts in personam i.e. it does not run with the property. For instance, ‘A’ the plaintiff gets an
injunction against ‘B’ forbidding him to erect a wall. ‘B’ sells the property to ‘C’. In such a case, the sale
does carry an injunction with it. An injunction may be issued against individuals, public bodies or even the
State. Disobedience of the order of an injunction is punishable as contempt of court. There are three
characteristics of an injunction. They are as follows.

A judicial process.

The relief obtained is restraint or prevention.

The act restrained is wrongful.

Comparison of English and Indian Law

The nature of discretion and the rules of guidance for issuing orders of an injunction are the same in both
English and Indian Law. Under English law damages in substitution for an injunction may be given if:

The injury to the plaintiff’s legal rights is small;

The injury is one which is capable of being estimated in money;

The injury can be adequately compensated by a small payment; and

The case is one in which grant of an injunction would be oppressive to the defendant.

In India also some of these rules are incorporated in sections of the Specific Relief Act, 1963.

Types of an Injunction
There are basically two types of injunction as provided by section 36 of the Specific Relief Act, 1963.
Section 36 of the Specific Relief Act with the head ‘Preventive relief how granted’ reads as, “Preventive
relief is granted at the discretion of the court by injunction, temporary or perpetual”. As per provisions of
section 36 injunctions are either temporary (interlocutory) or perpetual.

Temporary and perpetual injunctions are defined under Section 37 of the Specific Relief Act which reads
as:
“(1) Temporary injunctions are such as to continue until a specified time, or until 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”.

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Temporary Injunctions

The procedure for granting temporary injunctions is not governed by the Specific Relief Act, 1963 but
governed by the rules laid down in Order XXXIX, Rules 1 and 2 of Civil Procedure Code which reads as
follows.
“A temporary injunction may be granted in the following cases:

1. For the protection of interest in the property

This category will cover the following cases

(a) That property in dispute is in danger of being wasted or alienated by any party to the suit or wrongfully
sold in execution of a decree; or

(b) That the defendant threatens to remove or dispose of his property with a view to defraud his creditors;
and

(c) 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 the order grant an interlocutory injunction to restrain such act or make such order for
the purpose of staying and preventing the damage of wasting, alienation, sale or disposition of the
property as the court thinks fit until the disposal of the suit.

2. Injunction to restrain, repetition or continuance of breach

(1) In any suit for restraining the defendant from committing a breach of contract or other injury, of any
kind, whether compensation is claimed in the suit or not, the plaintiff may at any time after the
commencement the suit and either after or before judgement, apply to the court for a temporary
injunction to restrain the defendant from committing the breach of contract or an injury complained of, or
any breach of contract or injury arising out of same contract.

Discretionary Relief

It is to be noted that grant of an injunction is at the discretion of the court i.e. it is not the right of an
individual to get the injunction. Section 36 expressly lays down that, “Preventive relief is granted at the
discretion of the court by an injunction, temporary or perpetual”. Therefore the court will grant a
temporary injunction if the following conditions are satisfied by the case:

1. The plaintiff must be able to establish a prima facie case. He is not required to establish the clear title
but a substantial question that requires to be investigated and that matter should be preserved in the
same status as it is until the injunction is finally disposed of.

2. An irreparable injury may be caused to the plaintiff if the injunction is refused and that there is no
other remedy open to the applicant by which he could protect himself from the feared injury.

3. The balance of convenience requires that the injunction should be granted and compensation in
money would not serve an adequate relief.

It is to be noted that it is a settled principle of law that if in a suit where there is no permanent injunction
sought for in the final analysis, ordinarily a temporary injunction cannot be granted. So, the principles that
govern the grant of a perpetual injunction would govern the grant of a temporary injunction also.
In Ishwarbhai v Bhanushali Hiralal Mohanlal Nanda case where in a suit for specific performance, there
was no prayer for a decree of perpetual injunction restraining the defendant from transferring the suit
land by way of sale till the disposal of the suit. But the plaintiff in a suit prayed for a temporary injunction
which was not granted because of the settled principle.

Perpetual Injunction
Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted
by a decree at the hearing and upon the merits of the case. In simple words, for obtaining a permanent
injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the
injunction is granted by means of judgement. A permanent injunction therefore finally decides the rights
of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids
the defendant to assert a right which would be contrary to the rights of the plaintiff.

Section 38 of the Specific Relief Act, 1963 specifies certain circumstances under which permanent
injunction may be granted. Section 38 with the head ‘Perpetual injunction when granted’ reads as,

“(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 existed in his favour or by implication.

(2) When any such obligation arises from the contract, the court shall be guided by the provisions and rules
contained in chapter II (specific performance).

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the
court may grant the perpetual injunction in the following cases, namely-

Where the defendant is the trustee of the property of the plaintiff.

Where there exist no standards for ascertaining the actual damage caused, or likely to be caused by
an invasion.

Where the invasion is such that compensation in money would not afford adequate relief.

Where the injunction is necessary to prevent multiplicity of judicial proceedings.”

Requirements of Applicability

The conditions pre-requisite for the application of this section are-

There must be an expressed or implied legal right in favour of the plaintiff;

Such a right must be violated or there should be a threatened invasion;

Such right must be an existing one;

Should fall within the sphere of restraining provisions (referred to in section 41 of the specific relief
act).

Illustrations
 ‘A’ lets certain land to ‘B’ and ‘B’ contracts not to dig sand and gravel. ‘A’ may sue for an injunction to
refrain ‘B’ from digging in violation of the contract.

Where the directors of the company are about to pay a dividend out of capital. Any of the shareholders
may sue for an injunction to restrain them.

Section 38 expressly states that where an obligation arises from contract, the court shall be guided by the
rules and principles given in connection with the specific performance of contracts. Thus, a perpetual
injunction will be granted to prevent a breach of contract only in those cases where the contract is
capable of specific performance (section 41(e)).

However, section 42 says that where a contract compromise of a positive agreement to do something
and negative agreement not to do a certain act, whether expressly or impliedly, the fact that positive part
is not capable of specific performance will not prevent the court from of enforcing the negative part by
means of an injunction.

The crux of this section is that where an agreement contains both affirmative and negative agreement,
the court may enforce the negative agreement if a positive agreement is incapable of specific
performance and may restrain a party from committing a breach of the negative part.

The court may grant a permanent injunction where the defendant invades or threaten to invade the
plaintiff in the following cases:

1. Where the defendant is a trustee of the property for the plaintiff.

2. Where there exists no measure to ascertain the loss or actual damage caused. For example, ‘A’
pollutes the air with smoke so as to interfere with the physical comfort of Band C, who carries on
business in the neighbourhood. ‘B’ and ‘C’ may sue for an injunction to restrain ‘A’ from polluting the
air.

3. Where the invasion is such that compensation in terms of money is not an adequate relief. For
example, ‘A’ a professor deliver lectures to his students, being his own literature composition he does
not communicate them to the whole world. These lectures are the property of the professor and he is
entitled to restrain the students from publishing without his contents.

4. Where it is necessary to prevent a multiplicity of judicial proceedings.

Mandatory Injunctions

Section 39 of the Specific Relief Act, 1963 with the head ‘Mandatory injunctions’ reads as, “When to
prevent 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 compel the performance of requisite acts.”

Two elements have to be taken into consideration when a mandatory injunction is granted. The two
elements are:

The court has to determine what acts are necessary to prevent the breach; and

The requisite acts must be as such as the court is capable of enforcing.

Disobedience of Injunction
Rule 2-A of Order 39 and Section 94(c) of the Civil Procedure Code provide for consequences of
disobedience of an injunction. Section 94(c) provides that, “In order to prevent the ends of justice from
being defeated the Court may if it is so prescribed grant a temporary injunction and in case of disobedience
commit the person guilty thereof to the civil prison and order that his property is attached and sold.”

Rule 2-A of Order 39 provides that,

“(1) In case of disobedience of any injunction granted under Rule 1 and Rule 2 or breach of any of the terms
on which injunction was granted, the court granting the injunction or making the order, or any court o which
the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or
breach to be attached and may also order such person to be detained in the civil prison for a term not
exceeding three months, unless in the meantime the court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which
time if the disobedience continues, the property attached may be sold.”

Conclusion

There are cases in which the nature of agreement does not admit specific performance, nor damages
likely to serve the purpose. In such cases, the court may restrain the party threatening the breach by way
of an injunction. Further, it should be noted that an interim injunction can only be granted when a
perpetual injunction is prayed for in a suit.