This article is written by Uday Bhatia , from Vivekananda Institute of Professional Studies. This article covers the interpretation of preventive relief, the granting mechanism & grounds of refusal of (injunction) along with the procedure of executing an injunction decree governed by Specific Relief Act, 1963 & Code of Civil Procedure, 1908.
Table of Contents
The Specific Relief Act, 1963 was a revision of the archaic, colonial law enacted in 1877, which was subsequently repealed for its unviability to the contemporary socio-economic needs as per the recommendations of 9th Law Commission Report . It was drafted by Whitley Stokes and revised by the Law Member, Sir Arthur Hobhouse & is based on the principle of equity & justice . The rationale behind the enactment was to plug the loopholes & inadequacies of the Indian Contract Act, 1872 , with compensation for breach of contract being the only remedial measure. There might be on various occasions, the parties the compensation may not be an adequate relief, where specific performance of the contract is essential to balance the interests of both the parties. It, therefore, provides a remedy for the exact fulfilment of the obligation. The remedy sought should be such that the person is foremost deprived & secondly & most importantly is entitled to seek the relief. It became imperative for another ‘foolproof’ legislation to provide a comprehensive framework relating to civil or contractual remedies to the aggrieved persons. The following are the reliefs which can be sought under the Specific Relief Act, 1963:
Preventive relief under the Specific Relief Act, 1963 has a negative connotation in its operationality. This type of relief has been devised to deal & counter a scenario where the nature of the contract is such that neither the grant of damages nor the specific performance is unlikely to serve any purpose. In such cases, the court resorts to restrain the party who threatens to breach the contract to the possible extent. For instance, in a contract of musical performance between the performer & the other party, the other party, can seek preventive relief to deter the performer from accepting or entering into any other such contracts, which creates a pressure & compulsion for fulfilling his promise.
Preventive relief is typically granted through the standard mode of injunction. The law of injunction in our country has originated from the equity jurisprudence which in turn is borrowed from Roman law.
According to Section 37 , the Specific Relief Act, 1963 defines that “preventive relief is granted at the discretion of the court by injunction, temporary or perpetual”. An injunction is a judicial process whereby a party is ordered to refrain either from doing a particular act or omission or directed to do a particular act or omission. In the former case, it is called a restrictive injunction and in the latter, it is called a mandatory injunction. One purpose of granting an injunction is to maintain peace & order in society.
“He who seeks equity must do equity” which bestows obligation on both the parties to honour their obligations, to enforce reciprocal promises.
“One who seeks equity must come with clean hands” which interprets that the plaintiff who is praying before the court for a specific relief must not be at first place at fault.
“Whenever there is a right there is a remedy”, the most widely known & used, where there exists a right for an individual, he or she shall also have a recourse to enforce it.
Section 42 , Specific Relief Act, 1963, wherein a contract, it stipulates (expressly or impliedly) either to do certain an act in affirmative or in negative, there persists a circumstance that the court is unable to assert the specific performance of such act, it shall not preclude it from granting an injunction, only if the plaintiff holds his or her end of the bargain, i.e. performing his or her reciprocal promise.
In Martin Burn Ltd vs R.N Banerjee explained a prima facie case which emphasized doesn’t have to prove the guilt rather present the evidence on record to support its claim were to be believed. The evidence presented should be such that it possibly leads to an impugned question & that it leads to land upon the same conclusion. [1] The court should be satisfied there poses a serious question, triable in further proceedings & that the plaintiff seeks relief in the trial based on solid evidence presented on the record. A Prima facie case as interpreted in Gujarat Electricity Board vs Maheshkumar & Co refers to substantial question(s) raised bona fide, requiring due investigation & decision on merits. The court would be unjustified & prejudiced on its part to demand full proof warranting an eventual decree. The plaintiff’s claim mustn’t be frivolous or vexatious. [2]
It means the quantum of comparative mischief or inconvenience which is likely to ensue from withholding the injunction will be much greater than which might arise from granting it. The court has to weigh the substantial mischief that is likely to be caused to the applicant if the injunction is refused & the subjugation of the legal rights of the defendant. It has to consider the possibilities or probabilities of the likelihood of injury that might ensue with the subject-matter sub judice, that status quo must be maintained.
It becomes sworn duty of the court to exercise its “sound judicial discretion” with utmost care & caution, while granting or rejecting the ad-interim injunctions, because the role of the court becomes crucial & simultaneously dilemmatic as it has to either grant or refuse scrupulously the injunction order, based on the arguments of only one party due to the gravity of issue concerning the subject-matter, by skipping the disclosure of other vital information from the other party. This, of course, all has to be done by balancing the interests of both sides. The grant of ad-interim relief becomes all the more perplexing as there is no strait-jacket formula or even broad guidelines aiding it & varies from facts & circumstances of each case . [3]
The primary purpose of temporary or interim or sometimes referred to as interlocutory injunctions is the preservation of the status quo of the property (subject-matter) in dispute until the legal rights and conflicting claims of the parties before the court are adjudicated.
One of the other reasons of temporary injunctions is to deter the defendant who threatens to dispossess the plaintiff or cause any injury to the plaintiff concerning the subject-matter in dispute, the court, therefore, may grant a temporary injunction to restrain or prohibit from a particular act or omission. Its purpose is to prevent the dissolution of the plaintiff’s rights, which in nutshell is a means to provide immediate relief to the plaintiff.
According to Section 94(c) , Code of Civil Procedure, 1908 , states that the court in order to meet the ends of the justice has discretion in granting a temporary injunction & if any person is guilty of disobedience of such injunction order, it may commit the defaulter to the civil prison & order for attachment of his or her property & even for sale.
According to Section 94(e) , the Code of Civil Procedure, 1908, states that the court has the liberty to pass any other interlocutory orders as it deems just, fit & convenient.
Section 95 , Code of Civil Procedure, 1908 states conditions for the defendant for obtaining compensation to arrest, attachment or temporary injunction, where:
(a) It appears to the court that such arrest, attachment or injunction were prayed on insufficient grounds; or
(b) The suit of the plaintiff fails due to no reasonable or probable ground for instituting it.
It, therefore, gives the defendant a lawful right to file an application in the court, whereby the court on being satisfied that either of the above-mentioned conditions exists, then it shall pass an award to the defendant, not exceeding Rupees one thousand as reasonable compensation for the expense or injury(of any sort) caused to the plaintiff.
The compensation awarded by the court shall be subject to its pecuniary jurisdiction & that any no subsequent suit for compensation concerning such arrest, attachment or injunction shall be entertained.
According to Section 37(1) , Specific Relief Act, 1908 defines temporary injunctions as that continues until a specific time, or until further order(s) of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.
Thus, the procedural requirements to be fulfilled for granting temporary injunctions & interlocutory orders are determined in Order XXXIX , Code of Civil Procedure, 1908:
the court may then after being satisfied that any one of such circumstances is existing or prevailing, may pass the order of injunction until further notice or until the disposal of the suit, as it deems fit.
The injunction may also be sought by the plaintiff, restraining the defendant for repeated or continual breach of contract or injury that is likely to arise, any time after the commencement of the suit & either before or after the judgement, irrespective of the fact that the compensation is claimed or not.
The court may then after being satisfied with the fact that such circumstance persisting, may pass an order of temporary injunction subject to terms such as duration or security, as it deems fit.
If in any scenario of disobedience of the above rules or breach of any terms on which injunction order was granted or made, the court which granted or made such order or any court to which the suit itself is transferred may pass an order for attachment of the property of the person guilty of disobedience of such breach, and may also commit such guilty person to civil prison for a maximum term of not exceeding 3 months.
The attachment made as above mentioned shall not remain in force for more than a year, but subject to the condition that if such disobedience or breach continues beyond the period of one year, the court may order the sale of the property & award the compensation to the injured party out of the proceeds & the residual balance to the entitled party.
The court shall where there exists an application seeking an injunction, directing the notice of such application to be given to the opposite party.
But, where it appears to the court that the objective of granting the injunction would be defeated by delay, it may before granting such injunction, it may grant an injunction without fulfilling the obligation of notice to the opposite party, provided it shall record reasons for the same.
The applicant is required to deliver or send via registered post, to the opposite party the order granting the injunction accompanied with the copy of the application for injunction & other requisite documents, immediately after such order has been made:
The following documents have to be filed on the day of the grant of injunction or the next succeeding day, along with the affidavit stating that such copies aforesaid have so been delivered or sent.
In a case where an injunction has been granted without giving due notice to the opposite party, the court has to endeavour dispose-off the application seeking injunction within 30 days from the date on which such injunction was granted & if it is unable to do so; it is obligated to record the reasons for the same.
The court has the power to discharge, vary or set aside any order of injunction on the application made by any disgruntled party if a party has advertently made a false or misleading statement about a material particular in an application for a temporary injunction or in any affidavit supporting such application & that the injunction was without duly giving notice to the opposite party, the court may if it deems it fit & satisfied vacate such order of injunction unless it considers not to do so in the interests of justice by recording reasons in writing.
The court may after giving the party in whose favour such injunction is granted, an opportunity of being heard shall not discharge, vary or set aside such order, except:
In such circumstances, it may vacate the order.
It is to be noted that the injunction order is not merely representative. Therefore all artificial entities which are the creation of law & its members & employees (constituting natural persons) are equally bound by an order of injunction.
Section 37(2) , Specific Relief Act, 1963 states that perpetual injunctions are granted by a way of decree, as it is supposed to be final, creating an obligation on the defendant to either restrain from doing an act or an omission or compels him or her to act or omit. Thus, the defendant is enjoined with the assertion of the right of the plaintiff, failing to abide by it or act contrary to it will result in infringement of the plaintiff’s right.
Section 38 , Specific Relief Act, 1963, states the circumstances under which the perpetual injunction could be granted:
Section 39 of Specific Relief Act, 1963 explains the purpose of granting a “mandatory injunction” is:
to prevent the breach of an obligation such that the obligation is capable of being enforceable by the court where the performance of the promise is necessary. The court may then exercising its sound discretion grant an injunction to prevent such breach to compel the performance of such promise.
The rationale behind the grant of a mandatory injunction is on the same judicial testing parameters that are:
However, besides the consideration of above testing factors, in addition to it, there must exist a higher degree or gravity of compelling circumstance(s) or extreme hardships (restoration or preservation of the status quo of the subject-matter). Since the controversy lies here, concerning the mandatory injunction, it poses a more compelling legal duty or an obligation on the defendant to adhere, as compared to nominal injunction order.
It becomes imperative to understand the competency of the court while granting such “majestic remedy”. The courts practice their ‘discretionary jurisdiction’ while adjudicating the grant or refusal of an injunction, circumventing the boundary drawn from Section 37 to Section 42, Specific Relief Act.
Section 40 , Specific Relief Act, 1963 entail the conditions for seeking damages in addition to injunctions:
Order XXI, Rule 32 , Code of Civil Procedure, 1908 states the procedure of enforcement of an injunction decree, along with decree of specific performance & conjugal rights:
such attachment shall cease.
Section 41 of Specific Relief Act, 1963 states the grounds for refusal of injunctions:
The remedy of injunction has been envisaged as the most widely accepted medium of recourse by an aggrieved individual to seek preventive relief throughout numerous modern legislatures, accustomed to their socio-economic, political & cultural environment of different state jurisdictions. As much as this fact is staggering, its seamless applicability as a standard mode worldwide for seeking preventive relief isn’t as novel as it seems.
Well, the concept of injunction as a “soft-yet-effective remedial measure” in the legal discourse has been adopted from Common Law’s doctrine of equity. The English equity courts (as they are referred to) adjudicated on the principles of English jurisprudence, which were majorly dominated by equity, justice & conscience. The credit of this doctrine goes to the oldest, omnipresent eminent law ever, the Roman Law, which is known as the first modern law society. And since the formulation of laws in every state has a bearing of international legislations, the prominence of Common Law & Roman Law are a true testament to it.
However, the remedy of injunction can’t exactly be replicated for different jurisdictions & therefore take-off different routes from its genesis, moulding according to various factors of its country’s environment.
Nevertheless, there are “broad guiding principles” that aid the courts in deciding the grant or refusal of an injunction.
The general rule is that injunction can’t be claimed as a matter of right, rather it solely depends on the discretion of the courts. Discretion in legal discourse has on most of the occasions, irrespective of the entity exercising has proved to be dangerous. Since discretion, apropos, results in unrestrained power. Thus, the ‘discretionary jurisdiction’ of the courts has to be sound, reasonably guided by the local judicial principles governing judiciaries across the world.
The plaintiff is obliged to fulfil his reciprocal promise to demand adherence from the defendant. Injunction works on an underlying ulterior motive that “the necessity of immediate action through legal recourse due to paucity of time in thwarting an irreparable injury to the subject-matter”
[1] Marin Burn Ltd. v. R.N. Banerjee 1958 AIR 79, 1958 SCR 514.
[2] Gujarat Electricity Board, Gandhinagar v. Maheshkumar and Co., Ahmedabad 1995 (5) SCC 545, AIR 1982 Guj 289, (1982) 2 GLR 479.
[3] Dalpat Kumar And Anr. v. Prahlad Singh And Ors. AIR 1993 SC 276 b, JT 1991 (6) SC 502, 1991 (2) SCALE 1431, (1992) 1 SCC 719, 1991 Supp 3 SCR 472.
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