Updated: Jun 2, 2021
When an injunction can be refused.
Grant of Preventive Reliefs or injunctions are laid down in Section 36 of the Specific Relief Act, 1963.
According to Section 36, Preventive Reliefs (injunctions) are granted at the discretion of the court by ordering for a temporary or permanent injunction.
A Preventive Relief is an order or command of the Court preventing a party from doing something which he is under a legal duty not to do. For instance, every person is legally bound not to commit trespass or not to defame a person and therefore the court may issue an injunction preventing a party from trespassing or defaming such person anymore than he already did with subject to context.
Types of Injunctions:-
1. Temporary Injunctions
Temporary Injunctions, also called Interlocutory Injunctions are contained in Section 37(1) of the Specific Relief Act of 1963. These injunctions are to continue until a specified time or until further order of the Court and, they may be granted at any stage of the suit and are regulated by the Code of Civil Procedure, 1908. It is only provisional in nature and does conclude a right or finally settle the matter. The object may be to maintain status quo, so that the alleged harm is avoided which could otherwise occur until the case is finally disposed off by the Court or its equivalent, on merit.
2. Perpetual Injunction
Perpetual Injunctions are discussed under Section 37(2) of the Specific Relief Act, 1963. A perpetual Injunction can only be granted by a decree made at the hearing and upon the merits of the suit. The defendant is thereby, perpetually enjoined from the assertion of a right, commission of an act which could be harmful or contrary to the rights of a plaintiff.
This section is a general provision stating that a perpetual Injunction can only be granted by a decree at the hearing and upon the merit of the cases.
The circumstances under which a perpetual Injunction is granted is discussed in Section 38, they are-
Subject to other provisions contained and referred to in Chapter VIII of the Act, 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.
When any such obligation arises from a contract, the court shall be guided by the rules and provisions for specific performance of contracts contained in Chapter II ( Sections 9–25)
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,
Where the defendant is a trustee for the property of the plaintiff.
Where there exists no standard for ascertaining the actual damage caused or likely to be caused by the invasion.
Where the invasion is such that compensation in money would not afford adequate relief.
Where an injunction is necessary to prevent multiplicity of judicial proceedings.
3. Prohibitory Injunction
Prohibitory Injunctions are explained under Section 38 of the Specific Relief Act, 1963. As the name suggests, a prohibitory injunction prohibits or forbids the commission of some act. Such an injunction may be granted to the plaintiff to prevent the breach of obligation, existing in his favour. The ‘obligation’ may be of any kind i.e. it could be contractual, tortuous, under a trust etc.
Illustration A, B and C are members of a Hindu undivided family. A cuts Timber growing on the family property and threatens to destroy a part of the family house to sell some of the utensils of the family. Now, B and C can sue for injunction to restrain a from doing search threatened act.
4. Mandatory Injunction
According to Section 39 of the Specific Relief Act of 1963. When to prevent a breach of an obligation, it is necessary to compare the performance of certain facts, which is the court is capable of enforcing. The court in its discretion can grant an injunction to prevent the breach complained of and also compare the performance of the requisite acts.
Thus, in a case of mandatory injunction, the court requires the performance of a requisite act.
# When the injunction compels doing of some act, it is mandatory injunction but, when the direction of the court is not to do something, the injunction is prohibitory. To obtain mandatory injunction the burden of proof is on the plaintiff to prove his own case.
5. Damages in lieu of, or in addition to injunction
This is covered under Section 40 of the Specific Relief Act, 1963:
i) The plaintiff in a suit for perpetual injunction under section 38 of mandatory injunction under section 39, may claim damages. The claim for damages may be either in addition to, or in lieu of injunction and the court may, if it thinks fit, award damages.
ii) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint;
In case of the plaintiff, has not claimed any damages then the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.
iii) Dismissal of suit to prevent breach of an obligation existing in favour of the plaintiff shall bar is right to sue for damages for such breach.
It means that is the main suit to obtain injunction is dismissed, the suit to claim damages shall also be automatically barred.
When can injunctions be refused?
Under Section 41 of the Specific Relief Act, 1963 an injunction cannot be granted:- a) To restrain any person from prosecuting judicial pro