Written By :- Amrita Raj & Aparna Raje (Amity Law School)
The term ‘injunction’ has been the subject of many attempts at classification.
Joyce described it as “a remedial order, the general purpose of which is to limit the commission informed by the party of some wrongful act.”
Burney defined injunction as “a judicial process by which one who invaded or attempted to invade another’s rights is prevented from continuing or initiating such an act of wrongdoing.“
Lord Halsbury’s definition is the most expressive and appropriate definition. According to him, “An injunction is a legal procedure by which a party is forced to refrain from doing 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.
English and Indian Law Contrast
The nature of discretion and the rules of instructions for issuing orders for an injunction are the same in both English and Indian law. Under English law, in exchange for an injunction, damages will be awarded if:
- The damage to the plaintiff’s legal rights is small;
- The accident is one capable of being assessed in cash;
- The accident can be sufficiently compensated, a small payout can adequately compensate for the injury; and
- The case is one where it would be oppressive for the defendant to issue an injunction.
Some of these laws are also incorporated into parts of the Specific Relief Act, 1963, in India.
Types of Injunction
As provided by section 36 of the Particular Relief Act, 1963, there are essentially two types of injunction. Section 36 of the Particular Relief Act reads as ‘Preventive Relief How Granted’ with the head, -“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:
- 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.
- 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.
The procedure for the grant of temporary injunctions is not governed by the Special Relief Act of 1963, but by the rules set out in Rules 1 and 2 of Order XXXIX of the Code of Civil Procedure, which reads as follows.
“In the following cases, a temporary injunction can be granted:To safeguard the interest in the property
In the following instances, this category would include the following cases:
(a) The contested properties are at risk of being wasted or alienated by either party to the suit or of being wrongfully sold in execution of a decree;
(b) that the defendant attempts, with a view to defrauding his creditors, to withdraw or dispose of his property; 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 order, grant an interlocutory injunction to restrain or render such an order for the purpose of staying and preventing the loss of the property from being wasted, alienated, sold or disposed of as the court deems fit until the suit is disposed of.
Injunction to restrain, repeat or resume infringement
In any action to prevent the defendant from committing a breach of contract or other harm of any nature, whether or not compensation is sought in the action, the defendant may apply to the court for a temporary injunction to preclude the defendant from doing so at any time after the beginning of the action and either after or before the judgment.
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:
- The plaintiff must have the capacity to create a prima facie argument. He is not needed to decide the clear title, but a significant issue that needs to be examined and that matter should be held in the same place as it is until the injunction is eventually disposed of.
- The plaintiff may sustain irreparable harm if the injunction is denied and there is no other remedy available to the claimant to protect himself from the injury foreseen.
- The balance of convenience allows the injunction to be issued, and there would be no sufficient relief for reimbursement in cash.
It should be remembered that it is a settled principle of law that a temporary injunction will not usually be issued in a suit where no permanent injunction is requested in the final analysis. The rules regulating the grant of a permanent injunction will, therefore, also regulate the grant of a temporary injunction.
In the case of Ishwarbhai v Bhanushali Hiralal Mohanlal Nanda, where there was no prayer for a decree of perpetual injunction in a suit for particular performance, preventing the defendant from moving the suit land by way of sale until the suit was disposed of. But in a lawsuit, the defendant prayed for a provisional injunction that was not granted due to the agreed principle.
Section 37(2) of the Special Relief Act, 1963, states that only a decree at the hearing and on the merits of the case can issue a permanent injunction. Simply put, in order to obtain a permanent injunction, it is appropriate to file a routine lawsuit in which the right asserted is examined on the merits and, ultimately, the injunction is issued by judgment. Therefore, a permanent injunction eventually determines a person’s interests, while a temporary injunction does not do so. A permanent injunction absolutely bars the defendant from asserting a right that would be contrary to the plaintiff’s rights.
Section 38 of the Specific Relief Act 1963 defines such conditions in which it is possible to issue a permanent injunction. Section 38 with the head ‘Perpetual injunction when granted’ reads as,
‘(1) In compliance with the other provisions set out in or referred to in this section, a permanent injunction may be given to the applicant for the purpose of preventing the occurrence of a breach of duty in his or her favor or on his behalf.
(2) Where such a duty emerges from the contract, the conditions and rules found in Chapter II shall guide the court (specific performance).
(3) In the following cases, where the defendant invades or attempts to invade the right of the plaintiff to property or to enjoy property, the court can grant a permanent injunction, 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 prerequisite conditions for this segment to function are-There must be an expressed or implied legal right in favor of the claimant;
- Such a right must be abused or there should be a threatened invasion;
- Such a right must be an existing right;
- The restraining provisions should come under the domain of (referred to in section 41 of the specific relief act).
- ‘A’ let’s 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 specifically states that, when a contractual obligation exists, the rules and principles set out in relation to the precise performance of the contracts shall be regulated by the court. Therefore, in order to avoid a violation of the contract, a permanent injunction will be issued only in situations where the contract is capable of specific results. (section 41(e).
However, section 42 states that if there is a contract arrangement of a positive agreement to do something and a negative agreement not to do a certain act, whether directly or indirectly, the fact that the positive component is not capable of clear results does not prohibit the court from having an injunction imposing the negative part.
The crux of this section is that if an agreement includes both an affirmative and a negative agreement, if a positive agreement is incapable of specific results, the court may enforce the negative agreement and may prohibit a party from committing an infringement of the negative portion.
The court may grant a permanent injunction where the defendant invades or threaten to invade the plaintiff in the following cases:
- Where the defendant is a trustee of the property for the plaintiff.
- When no test exists to assess the loss or actual damage caused. For example,’ A’ contaminates the air with smoke in order to interfere with the physical comfort of Band C, which operates in the field. ‘B’ and ‘C’ can sue for an injunction to hold ‘A’ back from air pollution.
- Where the invasion is such that compensation is not sufficient relief in terms of money. For instance, ‘A’ a professor gives lectures to his students, he does not convey them to the entire world as his own literature composition. Such lectures are the teacher’s property and he is entitled to prohibit the students from publishing without their substance.
- Where it is necessary to prevent a multiplicity of judicial proceedings.
Section 39 of the Specific Relief Act, 1963 with the head ‘Mandatory injunctions’ reads as, “When it is necessary to compel the performance of certain acts that the court is capable of enforcing in order to prevent breach of an obligation, the court may grant an injunction in its discretion to prevent the breach complained of and also to compel the performance of required acts.”
There must be two components:
- 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
For the effects of disobedience of an injunction, Rule 2-A of Order 39 and Section 94(c) of the Civil Procedure Code include. It is given in section 94(c) 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
- 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.
- 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.”
There are occasions where the essence of the arrangement does not give rise to particular performance or to damages that are likely to serve the intent. In such cases, the court can, by means of an injunction, limit the party threatening the violation. Moreover, it should be noted that a temporary injunction may be granted only if, in a suit, a perpetual injunction is sought.