Articles

Suit for Permanent Injunction

This Article is written by Saumya Tripathi, a student of Shri Ramswaroop Memorial University

Introduction

An injunction is an order of the court issued for the purpose of performance of specific act or   refraining a person from doing something. It is a legal and equitable remedy which is allowed in cases where monetary or compensatory damages are not enough to restore the harm caused to a person. The concept of injunction is supported by the principles of Natural Justice and Equity. Both English and Indian law have similar rules of guidance while issuing an order of an injunction including nature of discretion of the court. However, under the English Law damages may be given in the place of an injunction in circumstances defined under that law.

Joyce defined Injunction as an, “An order remedial, the general purpose of which is to restrain the commission of some wrongful act of the party informed”. Whereas 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”. Though, the definition of Lord Halsbury was found most expressive and acceptable of all. 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”.

From the above definitions it is clear that an injunction is a remedy that is issued by the court with an object to stop a person from doing a particular thing or compel a person to do something where if such order is not issued, the person against whose such act is performed or not performed would suffer irreparable harm. That means any monetary compensation would not be sufficient to compensate such harm.  

Generally, injunctions are of two types. Section 36 of the Specific Relief Act, 1963 states that an injunction is a preventive relief granted by the court at its discretion which is either temporary or perpetual(permanent).

Permanent Injunction

Section 37 clause (2) of the Specific Relief Act, 1963 defines permanent injunction (also known as perpetual injunction). It states that permanent injunction can only be granted in the form of decree after seeing the merit of the suits at the time of hearing. Further, it states that the defendant will be completely prohibited from asserting his right or committing any act which is contrary to the rights of the plaintiff. Thus, the permanent injunction is preventive measure issued perpetually in favour of plaintiff with a view to make the defendant unable from exercising any right or committing any act which would harm the interest of the plaintiff. 

Illustration-  A and B entered into a contract where B put a clause not to dig a well on the land given by A. A can approach the court for issue of an order of injunction if B digs a well on the land so he can stop B from doing it.

Circumstances in which Permanent injunction can be granted 

Section 38 provides some circumstances under which permanent injunction can be granted. The conditions are as follows: –

  • A permanent injunction may be granted in order to prevent the breach of an obligation existed in favour of plaintiff or by implication subject to the other provisions provided or referred in chapter VIII.
  •  In cases where any such obligation arises from the contract, the court shall follow the provisions and rules provided in chapter II (specific performance of contracts, etc.).
  • In cases where the defendant infringes or threatens to infringe the plaintiff’s right to property or its enjoyment, the court may grant the perpetual injunction. It includes following cases: –
    • Where the defendant being the trustee of the plaintiff’s property.
    • Where there exists no parameter for ascertaining the actual damage caused, or likely to be caused by an invasion.
    • Where the invasion is of such nature that compensation in money would not be an adequate relief.
    • Where the injunction is necessary in order to prevent the multiplicity of judicial proceedings.

Circumstances under which permanent injunction can’t be granted

Section 41 provides conditions under which the court will not grant permanent injunction. The conditions are as follows: –

  • 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 multiplicity of judicial cases.
  • To restraint any person from insulting or prosecuting any proceeding in a court not subordinate to that from which injunction is sought.
  • To restraint any person from applying for prosecuting any legislative body.
  • To restraint any person from instituting or any proceeding in a criminal matter.
  • To prevent breach of a contract, the performance of which would not specifically enforced.
  • To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance.
  • To prevent a continuing breach in which the plaintiff acquiesced.
  • When equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust.
  • When conduct of plaintiff or his agent is such to disentitle him to the assistance of the court.

In the case of Walter Louis Franklin v. George Singh, the plaintiff requested for permanent injunction against the defendant so as to restrain him from using his land unlawfully. Though, the defendant claimed that he was the real owner of the land before the court. The court however, granted the permanent injunction in favour of plaintiff as the possession of the land belongs to the plaintiff.

The case of Nuthaki Venkataswami v. Katta Nagi Reddy, revolves around the champertous agreement. The court in this case held that such agreement in itself is not void and the recovery made under such agreement if not against the public policy, cannot be stated as illegal. Therefore, the court may grant injunctions in these cases.

In the case of Jujhar Singh vs. Giani Talok Singh AIR 1987, a son demanded to issue an order of permanent injunction against his father. The son wanted to prevent his father (who is the Karta of the Hindu Undivided Family) from selling Hindu Undivided Family (HUF) property and set aside. The court held that it was not maintainable as the son being a coparcener had the remedy to challenge such sale and get it set aside in the suit subsequent to the completion of the sale.

Role of Mandatory Injunction

The role of mandatory injunctions comes into play when the court issues an order of permanent injunction for the prevention of breach of an obligation existed (section 38 clause 1). The Specific Relief Act, 1963 under section 39 provides for mandatory injunction. It states that the when court in order to prevent the breach of an obligation finds necessary to compel the performance of certain acts, failure of which results in breach of an obligation may grant an injunction at its discretion which the court is capable of enforcing for the purpose preventing such breach and for the performance of the required act. To grant mandatory injunctions the court considers the following points: –

  • Firstly, it has to determine what acts are necessary to prevent the breach.
  • Secondly, the determined acts must be capable of enforcing by the court.

The Supreme court in the case Dorab Cawasji Warden v. Coomi Sarab Warden pointed three points which the court will consider while granting mandatory injunction which are mention below: –

  • The case presented by the complainant must be strong and it should be of higher level than that of the prima facie.
  • The plaintiff must clearly state that the grant of such injunction is obligatory so the irreparable damage or serious injury can be prevented and the injury is of the nature where money is not adequate to compensate it. 
  • The balance of convenience should also be in favour of the complainant as against the defendant.

Non- compliance of an Order of Injunction

An injunction from its very nature is a remedy granted to protect the interest of the person whose interest might be harmed by the another. However, there may be cases where the person against whom such order is granted, fails to comply with the same. So, to protect the interest of the complainant there are some remedies available for the breach of injunction. Oftentimes, the court explains this through a well-known maxim Ubi jus ibi remedium, which means when there is right there is remedy. The court also requires remedy for the cases where the order passed by them are not obeyed. The court thus, needs remedy against non-compliance of their order as well to prevent further dishonouring of their order.

Under Order 39 Rule 2A of the Civil Procedure Code provides for punishment for not obeying the order of injunction passed. It provides for the attachment of property of the person against whom the order of injunction has been granted. Also the court may order the person to be detained in a civil prison for a term not exceeding three months. Further, it states that the attachment of the property shall remain in force for the period of one month and if the breach continues to happen the property attached may be sold and the court may award compensation to the injured party or the person entitled thereto. As well Order 21 Rule 32 of the Civil Procedure Code provides that if the defendant fails to comply with the decree will lose his right of ownership as well the court at its discretion may seize his property.

Section 40 Of The Specific Relief Act, 1963 -Damages In Lieu Of Or In Addition To The Order Of Injunction 

It is provided under section 40 of the Specific Relief Act, 1963 that the plaintiff while claiming either for a permanent injunction under section 38 or a mandatory injunction under section 39, may claim additional damages or in substitution for such injunction. The court will only allow award such damages if the court finds it fit. However, as per the provisions under this section the compensation shall be awarded only if the claimant requested such relief in the plaint. It also provides that if any such request is not made by the claimant in the plaint, the court at its discretion allow the plaintiff to amend the plaint at any point of the trial which must be just and fair. Further, it states that the plaintiff shall be bar from exercising his right to sue for such damages if the suit initiated to prevent the breach of obligation existed in favour of plaintiff is dismissed.

Major Differences Between Permanent and Temporary Injunctions

Permanent injunction can be differentiated from temporary injunctions on the following ways which are as follows: –

  • Permanent injunction is granted by the court in the form of decree after seeing the merit of the suit upon the hearing of the case. Whereas temporary injunction is granted for specified period of time at any point during the suit.
  • Sections 38 to 42 of The Specific Relief Act, 1963 deals with permanent injunctions. Whereas Order 39 (Rules 1 to 5) of the Civil Procedure Code, 1908, deals with temporary injunctions.
  • Permanent injunction is conclusive and long term in nature delivered at the time of the final judgement. Whereas temporary injunction is non-conclusive, that means a temporary order instead of permanent solution.  
  • Permanent injunction cannot be revoked by the court that passes it but can be revoked by an appellate court or higher court. Whereas temporary injunction can be revoked by the court that passes it.
  • A permanent injunction is a decree that means an official order by a court of law whereas temporary injunction is simply an order passed by the court.
  • Permanent injunctions focus equally on the interest of both the plaintiff and the defendant. It provides the solution after hearing the both the parties. Whereas temporary injunctions generally only focuses on plaintiff side, However, not always.

Conclusion

Thus, it can be concluded that the injunctions are preventive relief issued with an aim to make a person do something or stop him from performing specific act. Injunctions becomes useful in cases where monetary compensation or damages are not enough to restore the harm caused. It The circumstances of the case decide whether it should be permanent injunction or temporary one. However, the court issues the order for permanent injunction only after seeing the merit of the case. The Specific Relief act, 1963 expressly provides for conditions under which permanent injunction can be granted under section 38 including circumstances where the court can refuse to grant permanent injunction under section 41 of this act. Hence, it is important that the case must fall within the ambit of section 38 to obtain permanent injunction.

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