Injunctions temporary, perpetual, when can be granted?

An injunction is a specific order of the Court forbidding the commission of a wrong threatened or the continuance of a wrongful course of action already begun.

An injunction is defined in Halsbury's Laws as “A judicial process whereby a party is ordered to refrain from doing or to do a particular act or thing.” In the former case it is called a restrictive injunction and in the latter a mandatory injunction.

Injunctions are either interlocutory or perpetual. Interlocutory or temporary injunctions are such as are to continue until the hearing of the cause upon the merits, or generally until further orders.

Perpetual injunctions are such as form part of the decree made at the hearing upon the merits.

A suit in which a plaintiff seeks the relief of injunction is in essence based on the principle of a “quia timet” (because he fears) action. The object of the proceeding is essentially the prevention of an apprehended injury. The purpose of a temporary injunction is to preserve the matters in status quo until the issues between the parties can be finally decided.

A perpetual injunction, on the other hand, is in effect a decree and concludes a right’s.     

History of the preventive remedy: Lord Chancellor Waynflete developed injunction as a Chancery remedy in the time of Henry VI. The Lord Chancellor set aside a certain bond given by the plaintiff as one not binding on him. The Court of Common Pleas, however, gave a decree on the bond. The Chancellor thereupon devised the remedy of injunction by which he forbade the execution of the decree of the Common Law Court. The exercise of the power of issuing injunctions by the Chancery Court was viewed with jealousy by the Common Law Courts and soon became a fruitful source of difference between the two jurisdictions. The conflict between the Common Law and the Chancery Courts came to a head in 1616 in the great controversy between Coke, Justice of the Common Pleas, and Lord Chancellor Ellesmere on the subject of injunctions. A decree was obtained before Lord Coke by practicing a gross fraud. The Chancellor thereupon by an injunction perpetually enjoined the decree-holder from proceeding to execute his judgment. The validity of this procedure was seriously questioned but James I, after referring the matter to Bacon then Attorney General and other counsel finally settled the question in favour of the Chancellor. The jurisdiction to issue injunctions was thus affirmed and the remedy which has been appropriately termed the strong arm of Courts of Equity has contributed not a little to strengthen the position of the judiciary as dispensers of justice and arbiter between man and man.

In our country the law relating to injunctions is contained in part III, chapter VII, Sections 36 to 42 of the Specific Relief Act 1963 and in S 94 (c), Order XXXIX, and Rules 1 to 5 of the Code of Civil Procedure. The provisions of the Specific Relief Act relate to temporary and permanent injunctions and the provisions of Civil Procedure Code regulate temporary injunctions.

 Let us now have a quick glance of Sections 36 to 42 of the Specific Relief Act;

Sec.36 of the Specific Relief Act read as under;

Preventive relief how granted. - Preventive relief is granted at the discretion of the Court by injunction temporary or perpetual.

Sec.37 of the Specific Relief Act read as under;

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 (Act 5 0f 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 there by 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.

Sec.38 of the Specific Relief Act read as under;

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 actual damagecaused 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.

Sec.39 of the Specific Relief Act read as under;

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 an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Sec 40 of the Specific Relief Act read as under;

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 such 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 they 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.

Sec 41 of the Specific Relief Act read as under;

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 injunction is sought, unless such restraint is necessary to prevent multiplicity of proceedings:

(b) To restrain any person instituting or prosecuting any proceeding in a court not subordinate 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 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 proceedings except in case of breach of trust;

(i) When conduct of the plaintiff or his agents has been such as to disentitle him to get the assistance of the Court;

(j) When the plaintiff has no personal interest in the matter.

Sec.42 of the Specific Relief Act read as under;

Injunction to perform negative agreement. —Not withstanding 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 a 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.

Now let us go through provisions of S 94 (c) and order 39 rules 1 to 3 of the Code of Civil Procedure, which regulate grant of temporary injunctions;

S.94 (C) of the code of civil procedure:-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 be attached and sold.

Order 39 Rule 1and 2 of Civil Procedure Code read as under: -

(1) Cases in which temporary injunctions may be granted-[(1)] 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 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 dispossession 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.

(2) Injunction to restrain repetition or continuance of breach-

(1) The Court shall, while granting a temporary injunction to restrain such act or to make such other order for the purposes of staying and preventing the wasting damaging, alienation, sale, removal or dispossession of property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property under dispossession in the suit under sub rule (1) direct the plaintiff to give security or otherwise as the court thinks fit.

(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 of the suit, and either before or after  Judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise as the Court thinks fit.

(2-A) Consequence of disobedience or breach of injunction –(1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, of the court granting the injunction or making the order or any court to 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 3 months unless in the mean time the court directs his release.

(2) No attachment made under this rule shall remain in force for more than 1 year at the end of which time if the disobedience or breach continuous, the property attached may be sold and out of the proceeds the Court may award such compensation as it thinks fit to the injured party and shall pay the balance if any to the party entitled there to.

(3) Before granting injunction court to direct notice to opposite party-

The court shall in all cases except where it appears that the object of granting the injunction would be defeated by the delay before granting an injunction direct notice of the application for the same to be given to the opposite party:

Provided that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay and require the applicant-

i. to deliver to the opposite party or to send to him by register post immediately after the order granting the injunction has been made a copy of the application for injunction together with-

1. a copy of the affidavit filed in support of the application;
2. a copy of the plaint; and
3. copies of documents on which the applicant relies; and

ii. to file on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.