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Injunctions under the Specific Relief Act, 1

Injunction under the Specific Relief Act, 1963

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The Specific Relief Act, 1963 came into force on 1st March 1964, after the Specific Relief Act, 1877 was repealed by the Parliament. The Act has its base in the principle of equity and is used for granting specific relief for enforcing civil rights. However, this Act does not have any application in enforcing penal laws. The Act is purported for protecting and enforcing the primary rights of the parties in case of a breach of contract wherein the Court orders for specific performance in favor of the innocent party.

The preamble of the Specific Relief Act, 1963 (hereinafter referred to as ‘the Act’) states “An Act to define and amend the law relating to certain kinds of specific relief.” A proper perusal indicates that the Act is not an exhaustive one. It only deals with certain types of specific reliefs. However, there are certainly other kinds of reliefs about which the Act is silent and is used by the Court.

What is an ‘injunction’?

An injunction is an equitable remedy that is in the form of a judicial process requiring a party to do or to refrain from doing certain acts. The term ‘injunction’ 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”. It is basically a court order addressed to a particular party that either prohibits him from doing or continuing to do a particular act or orders him to carry out a particular act.

Injunctions act in personam. So, they do not run with the property. An injunction may be issued against any individual, any public body, or even the State. The disobedience to an order of injunction amounts to and is punishable as a contempt of court. Hence, an order of injunction has three characteristics:

  • A judicial process
  • Restraint or prevention as the relief
  • A wrongful act being restrained

Types of Injunctions under the Act

The Specific Relief Act, 1963 provides for injunctions under Part III, headed as ‘Preventive Relief’. Section 36 of the Act specifies that preventive relief is granted, at the discretion of the court by injunction, permanent or perpetual. Hence, the Act lays down two kinds of injunctions, which are, temporary and perpetual.

Temporary Injunction

Section 37(1) of the Specific Relief Act defines ‘temporary injunctions’ in the following words:

“Temporary injunctions are such as are to continue until a specific 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 (5 of 1908)”[i]

Every court is constituted for administering justice among parties and the courts must be deemed to possess all such necessary powers for rendering complete justice to the parties. It is a settled principle of law that interim relief can be granted in the aid of and subsidiary to the main relief available to the aggrieved party upon the final decision in any suit or proceeding. Hence, the court undoubtedly has the power to grant interim relief while a suit is pending. Temporary injunctions are, therefore, injunctions issued during the pendency of suits or proceedings.

The procedure for granting temporary injunctions is governed by the rules laid down under Order XXXIX Rules 1 and 2 of Civil Procedure Code, 1908. According to these rules, a temporary injunction may be granted in the following cases:

1.For the protection of interest in the property: This category covers the cases wherein-

a) A 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.

b) There has been a threat from the defendant to remove or dispose of his property with a view to defraud his creditors

c) The defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

In such cases, the court may, by order, grant an interlocutory injunction to restrain such act or the court may make such order for the purpose of staying and averting the wasting, alienation, sale or disposition of the property as the court thinks fit until the suit is disposed of.

2. For restraining the repetition or continuation of breach: Where there is any suit for restraining the defendant from committing a breach of contract or another injury of any kind, the plaintiff may, at any time after the commencement the suit, and either after or before judgment, apply to the court for a temporary injunction for restraining 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, irrespective of whether compensation is claimed in the suit or not.

It is important to note in Section 36 of the Act that the grant of an injunction is at the discretion of the court, and hence, the individual cannot claim injunction as a matter of right. So, the court will grant a temporary injunction only if the plaintiff is able to establish a prima facie case, which is a substantial question of law that requires to be investigated and the same status is preserved unless the final injunction is disposed of; an irreparable injury may be caused to the plaintiff in case of refusal of the injunction which cannot be protected by any other remedy, and the compensation in money would no serve an adequate relief and an injunction is necessary for the balance of convenience.

Ordinarily, in a suit where the permanent injunction is not sought for in the final analysis, a temporary injunction cannot be granted. Hence, the principles governing the grant of a perpetual injunction would also govern the grant to a temporary injunction. In the case of Ishwarbhai alias Batukbhai L. Shah v. Bhanushali Hiralal Mohanlal Nanda[ii], a suit for specific performance was filed without a prayer for a decree of a perpetual injunction for restraining the defendant from transferring the suit land by way of sale till the suit was disposed of. The plaintiff asked for the grant of a temporary injunction which was not granted because of the settled principle.

Perpetual Injunction

The Specific Relief Act, 1963 defines perpetual injunctions under Section 37(2) as:

“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.”[iii]

Hence, to obtain a perpetual injunction, a regular suit is to be filed in which the right claimed is examined upon merits, and finally, the injunction may be granted by means of judgment. This indicates that a perpetual injunction finally decides the rights of a person, unlike temporary injunction, as the former absolutely forbids the defendant to assert a right which is contrary to the petitioner’s right.

Perpetual injunction may be granted under certain specific circumstances as has been laid down under Section 38 of the Act. According to this Section, a perpetual injunction may be granted to prevent the breach of an obligation existing in the favor of the plaintiff, whether expressly, or is implied, and when such obligation arises out of the contract the provisions of the Act in Chapter II, relating to the specific performance of contracts, have to be adhered to. The Section further provides that is the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant the perpetual injunction in cases where the defendant is the trustee of the property of the plaintiff; or where there exist no standards for ascertaining the actual damage caused, or likely to be caused by an invasion; or where the invasion is such that compensation in money would not afford adequate relief; or where the injunction is necessary

Mandatory Injunction

Section 39 of the Act provides the court may grant a mandatory injunction, in its discretion, 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, to prevent the breach complained of, and also to compel performance of the requisite acts. This relief is applicable in case of the breach of any obligation, whether arising out of a contract or tort. Such relief may be perpetual or temporary, though in rare cases temporary injunctions of this nature are issued.

Hence, while granting a mandatory injunction, the following two elements are to be taken into consideration:

1. It is needed for the courts to determine what acts are necessary to prevent the breach

2.  The court must be capable of enforcing the requisite acts

Damages in lieu of, or in addition to an injunction (Section 40)

The Section provides that when a plaintiff sues for mandatory or perpetual injunction, he may also claim damages, either in addition to, or in substitution of, the injunction and the Court may award such damages, if it thinks fit, provided that the plaintiff has claimed such damages in the plaint, or he may be allowed to add such claim in his plaint in the proceedings. An injunction or damages are not alternate remedies but can be granted at the discretion of the court.

Refusal of the perpetual injunction (Section 41)

Section 41 of the Act lays down certain situations in which a perpetual injunction cannot be granted by the Court. However, this Section is not exhaustive, as the granting of an injunction depends on the discretion of the court. According to the Section, a perpetual injunction cannot be granted:

1. 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

2. to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought

3. to restrain any person from applying to any legislative body

4. to restrain any person from instituting or prosecuting any proceeding in a criminal matter

5. to prevent the breach of a contract the performance of which would not be specifically enforced

6. to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance

7. to prevent a continuing breach in which the plaintiff has acquiesced

8. when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust

9. 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

10.  when the conduct of the plaintiff or his agents has been such as to disentitle him to be the assistance of the court

11.  when the plaintiff has no personal interest in the matter.[iv]

The injunction to perform a negative agreement (Section 42)

There may be an affirmative agreement to do a certain act, coupled with a negative covenant, expressed or implied, not to do a certain other act. Here, the fact that the Court is unable to compel specific performance of the affirmative part does not mean that an injunction in respect of the negative part cannot be granted. However, it is necessary in this case that the plaintiff has performed its part mentioned in the contract.

In the case of Lumley V Wagner[v], the defendant, a singer, agreed that she would sing for 12 months at the plaintiff’s theatre and that she would not sing elsewhere in the public during that period. Here, the plaintiff could not obtain specific performance of the first part of the contract (that is, to sing at his theatre), but he was entitled to an injunction, restraining the defendant from singing at other public places during that period. In this case, though there is one contract it contains two parts- one positive and the other, negative and the two parts are to be treated as independent contracts. Hence, in this case, the court could not debar itself to give an injunction in case of a negative covenant.

Disobedience to an order of injunction

The consequences for disobedience to an order of injunction have been provided for in Rule 2-A of Order 39 and Section 94(c) of the Civil Procedure Code, 1908.

Section 94(c) of the Civil Procedure Code states that the Court may commit the person, who is guilty of disobedience to a temporary injunction, to the civil prison, and order that his property is attached and sold.

Again, Rule 2-A of Order 39 of the Civil Procedure Code states that in case of disobedience to an injunction granted by a court, the property of the person guilty of such obedience may be ordered to be attached and such person may be ordered to be detained in the civil prison for a term not exceeding three months unless his release is directed by the Court in the meantime.

Conclusion

In cases in which the nature of agreement does not admit specific performance, nor damage likely to serve the purpose, the court may restrain the party threatening the breach, by way of an injunction. The Supreme Court of India has observed, on many occasions, that the jurisdiction to grant an injunction under the Specific Relief Act is discretionary and that it must be exercised according to the sound principles of law, and ex debito justitio. Before refusing or granting the injunction, the court has to weigh the pros and cons in each case, consider the facts and circumstances in their proper perspectives, and then exercise its discretion in the best interest of justice.

Endnotes

[i] https://www.indiacode.nic.in/bitstream/123456789/1583/1/196347.pdf

[ii] Ishwarbhai alias Batukbhai L. Shah v. Bhanushali Hiralal Mohanlal Nanda, AIR 2002 Guj 328

[iii] Supra note [i]

[iv] Ibid.

[v] Lumley V Wagner, (1852) 42 ER 687

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Ritu Basu

Student, School of Law and Justice, Adamas University

The author is currently pursuing B.Sc. LL.B. (H) from the School of Law and Justice Adamas University, Kolkata. She has completed her plus two with 98% marks in the ISC. She is a regular mooter and article-writer. Her area of interest mainly includes Constitutional Law and Criminal Law. However, she also takes a keen interest in Human Rights issues. Public speaking is her passion, and her ardour for penning down her opinions has not been dampened. With an additional benefit of belonging to the legal fraternity, she has a passion for the discipline, and also understands the need for legal research and legal education in the country.

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