Injunction or Preventive Relief Shyamli Shukla BASICS OF LAW Mon, Jul 20, 2020, at ,10:57 AM Preventive Relief or Injunction The concept of Injunction has been given various definitions as it has not been particularly defined. As has been defined by Burney, “injunction is a judicial process, by which one who invaded or threatening to invade the rights of another is restrained from continuing or commencing such wrongful act”. Lord Halsbury defined the injunction as “a judicial process whereby a party in an order to refrain from doing or to do a particular act or thing.” Several other definitions have been put forward but a general definition that can be stated is mentioned below: Definition: An injunction is a legal remedy imposed by the court where one party is refrained from doing something or directed to do a particular thing, as the case may be. The court’s decision is binding and non-compliance can result in heavy penalties or imprisonment in certain cases. What are the requirements of the injunction? Injunctions are granted when one party seeks an injunction and convinces the court that not granting it will cause irreparable damage. It is a valid principle in most jurisdictions. Irreparable damage means that the damage caused cannot be compensated by money or any other type of payment. The party must prove that there is no other remedy available and if the court balances the interests of both parties then the interests tilt toward the party seeking an injunction. Types of Injunctions The Specific Relief Act, 1963 provides two kinds of Injunctions under section 37: Perpetual Injunction Temporary Injunction The section 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”. Temporary Injunction: Temporary Injunctions, also known as Preliminary Injunctions, are invoked as a provisional remedy to prevent the subject matter in its existing state and avoid any damage to it. The main purpose of it is to prevent the delusion of the rights of the parties and to provide immediate relief when needed. They are non- conclusive and do not decide the merits of the case or any issues involved. They are used as a tool to prevent any threatened harm or irreparable damage till the suit is decided and the parties seek a final remedy. It is for a period specified by the court and the decision of the court as to the motion of injunction is discretional and not automatic. The discretion must be exercised, keeping the facts of the case in mind, towards the temporary injunction which helps maintain the status quo until the trial is final. This discretionary power has been exercised in many landmark cases like Siegel vs. Lepore. There are no provisions specifically laid down in the Specific Relief Act but it is governed by the Rule 1 & 2 of Order XXXIX, Civil Procedural Code, 1908, which reads as follows: “A temporary injunction may be granted in the following cases: 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 action 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. Click here: https://institute.intolegalworld.com/certificate/company-law.aspx An injunction to restrain, repetition or continuance of breach In any suit for restraining the defendant from committing a breach of contract or other injuries, 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 the same contract.” It shall be duly considered that the grant of an injunction is at the discretion of the court, meaning that it is not a right of the parties but it is a remedy on the Court’s discretion. Section 36 of the Specific Relief Act talks about the Preventive Relief that is granted by the discretion of the Court, be it temporary or perpetual. Also, it should be noted that there is a settled principle that in a suit temporary injunction cannot be granted if there is no permanent injunction sought in the final analysis. “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. 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. 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.”