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INJUNCTIONS IN INDIA: A STUDY

CONTRACTS - I

Submitted By

ADITYA TRIVEDI

SM0118002

Faculty-In-Charge

MRS. MONMI GOHAIN

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEM Y ASSAM

OCTOBER 30, 2019

1
TABLE OF CONTENTS

Contents Page No.

1. Introduction………………………………………………………………………………..3
1.1.Literature Review……………………………………………………………………..3-4
1.2. Scope and Objectives…………………………………………………………………..5
1.3. Research Questions……………………………………………………………………..5
1.4. Research Methodology…………………………………………………………………6

2. Preventive Relief and Injunctions-Meaning and Kinds………………………………….7


2.1.Preventive Relief……………………………………………………………………….7
2.2.Injunction-Meaning…………………………………………………………………….7
2.3.Classification of Injunctions on the basis of their operation…………………………..8-11
2.3.1. Temporary Injunction…………………………………………........................8-10
2.3.2. Perpetual Injunction…………………………………………………………..10-11
2.4.Classification of Injunctions on the basis of their nature……………………………...11-12
2.4.1. Prohibitory Injunction…………………………………………………….…..11
2.4.2. Mandatory Injunction…………………………………………………………11-12

3. Damages in lieu of or in addition to Injunction……………………………………………13

4. Injunction whe n refused…………………………………………………………………….14

5. Injunction to pe rform negative agreement…………………………………………………16

6. Conclusion…………………………………………………………………………………….18

7. Bibliography…………………………………………………………………………………..20

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ABSTRACT

An injunction is an equitable remedy in the form of a court order that compels a party to do or
refrain from specific acts. It is a court order which restrains one of the parties to a suit in equity
from doing or permitting others who are under his control to do an act which is unjust to the other
party. An injunction clearly forbids a certain type of conduct. It is a remedy that originated in the
English courts of equity. Like other equitable remedies, it has traditionally been given when a wrong
cannot be effectively remedied by an award of money damages. Injunctions are intended to make
whole again someone whose rights have been violated. Nevertheless, while deciding whether to
grant an injunction, courts also take into account the interests of non-parties (that is, the public
interest). When deciding whether to give an injunction, and deciding what its scope should be, courts
give special attention to questions of fairness and good faith. One manifestation of this is that
injunctions are subject to equitable defenses, such as laches and unclean hands.
Keywords: injunction, remedy, courts, India.

1. INTRODUCTION

An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a defendant for that purpose,
forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is
threatening or attempting to commit, or restraining him in the continuance thereof, such act being
unjust and inequitable, injurious to the plaintiff, and not such as can be adequately redressed by an
action fit law.
For example, if it so happens that a person is demolishing a building you have possible claims on,
you may ask the competent court to order such person to not demolish the building until the trial for
the claim of the building is complete and judgement goes in his favour.

The law of injunction has been provided for by the Specific Relief Act, 1963 (hereinafter, the Act),
and is also regulated by the Code of Civil Procedure, 1908 in India. It extends to the whole of India.
The act came into force on 1st March, 1964.

In Civil Law, legal remedies are for enforcing primary rights or for enforcing secondary rights.
When there is a breach of contract, if the court orders specific performance in favour of innocent
party, this is in nature of enforcement of a primary rights. If court orders for payment of
compensation against damage this is enforcement of secondary rights of parties. The Specific Relief
Act, 1963 is to protect and enforce primary rights of parties.
3
Following types of Injunctions are granted by the Court:

1. Temporary and Permanent Injunctions (Sections 36 & 37)


2. Perpetual Injunctions (Section 38)
3. Mandatory Injunctions (Section 39)
4. Damages in lieu of or in addition to Injunction (Section 40)
5. Injunction to perform a negative covenant (Section 42)

An injunction can be refused by the court if the case fulfils the conditions given under the Section 41
of the Specific Relief Act, 1963.

1.1. LITERATURE REVIEW

1. THE SPECIFIC RELIEF ACT, 1963:


The Specific Relief Act, 1963 is one of the sources used for this research and it proved to be the
most reliable source for the completion of the project. This is the basic source used in this research
for getting the various sections dealing with Injunctions under the Specific Relief Act.

2. Avtar Singh, CONTRACT AND SPECIFIC RELIEF, Eastern book Company, 11 th Edition:
Contract and Specific Relief by Avtar Singh is another source used in this research project and is
one of the most important sources of information for the project. The book covers the Specific
Relief Act in a detailed manner by explaining the various sections and the related cases, which
helped in understanding the concept clearly.

3. Hugh Beale, CHITTY ON CONTRACTS, Vol. I, General Principles, Thomson Reuters Ltd.,
30th Edition,2008:

Chitty on Contracts by Hugh Beale is the third source used in this research project. The book is the
single most pre-eminent reference work on the whole range of English contract law available
anywhere in the common law world. It has been of great help in the project as it covers a
substantive part on Injunctions.

4
4. Pollock & Mulla , THE INDIAN CONTRACT AND SPECIFIC RELIEF ACTS, Lexis
Nexis, 14th Edition, 2013:
Indian Contract and Specific Relief Acts by Pollock and Mulla is the fourth source used in this
research project. The book has completed more than hundred years and is considered an authority
on the two statues. It includes many latest decisions of the Supreme Court and High Courts in
India and has been a good guide for the research project on injunctions.

5. Dr. Kailash Rai, CONTRACT-I, Central law Publications, 2nd Edition, 2009:
Contract-I by Dr. Kailash Rai is the fifth source used in this research project. This book is a
comprehensive analysis of the Indian Contracts and the Specific Relief Act on which the project is
focussed. By providing with the required important case laws and illustrations it proved to be great
help in the project.

1.2.SCOPE AND OBJECTIVES:


The scope of this research is limited as it focuses on the Specific Relief Act with a focus on
Preventive Relief and Injunctions. The research studies the basic concept of Injunctions, its kinds,
and various other relevant sections. Thus, nothing new is derived out of the project and it is
therefore a study of the Specific Relief Act with regard to preventive relief and various
injunctions.
The objectives of this research are as follows:
 To study the Preventive Relief and Injunctions as given under the Specific Relief Act,
1963.
 To study the various types of injunctions.
 To know about the damages given in addition to injunctions.
 To study the situation if the damages are refused.

1.3.RESEARCH QUESTIONS:
1. What is Preventive Relief?
2. What are Injunctions under the Specific Relief Act?
3. What area the various types of Injunctions?
4. What and when are the damages given in lieu of injunctions?
5. What if the damages are refused?
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1.4.RESEARCH METHODOLOGY:
The methodology used for this research is doctrinal as sources collected were library based.
Being doctrinal in nature, a hypothesis was not formulated. Secondary data in the form of web
excerpts and available books were heavily relied upon in an attempt to arrive at plausible,
explanatory answers. Primary data was not collected. This paper can be used as a future
reference and is binding and complete in that regard.

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CHAPTER – 2

PREVENTIVE RELIEF AND INJUNCTIONS-MEANING AND KINDS

2.1. PREVENTIVE RELIEF

Section 36 of the Specific Relief Act, 1963 talks about- Preventive relief how granted.—
Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
Preventive relief is said to be such a relief by which a person is prevented to do an act, which is
not validly liable to do. When the Court prevents a Party from do ing that which he is under an
obligation not to do it is called preventive relief. Such relief is usually granted to prevent breach of
contract or the violation of right arising otherwise than by contract. Section 36 to 43 provide in
respect of prevention relief. Section 36 makes it clear that the preventive relief is granted at the
discretion of the court by injunction, temporary or perpetual. 1
Relevant Case Law:
Executive Committee of Vishya Degree College, Shamli v/s Lakshmi Narayan, AIR 1 976 SC
888
In this case, the court held that the relief of Injunction cannot be granted or obtained as of right,
the granting of relief or injunction is discretionary. The relief has to be granted by the court
according to sound legal principles and ex debilo justitiae.

2.2. INJUNCTION-MEANING
The term “injunction” has been the subject of various attempts at a definition. It has been defined
by Joyce as “An order remedial, the general purpose of which is to restrain the commission and
continuance of some wrongful act of the party informed.”
In Burney “injunction has been defined to be a judicial process, by which one who has invaded or
is threatening to invade the rights, legal or equitable, of another is restrained from continuing or
commencing such wrongful act.”
Both of these definitions are expressive more of what is called a prohibitoryinjunction than
Mandatory injunction. The definition which clearly includes both is the one given by Lord
Halsbury. According to him, ‘An injunction is a judicial process whereby a party is ordered to
refrain from doing or to do a particular act or thing.”

1
Ravi Singhal v Manali Singhal, (2001) 8 SCC 1, in an application for interim relief in respect of a settlement, the court
said that it is at the discretion of the court to grant interim relief and exercise of discretion should not be perverse or
irrational.
7
Injunction acts in personam. It does not run with the property. For example A, the plaintiff,
secures an injunction against B forbidding him to erect a wall. A sells the property to C. The sale
does carry the injunction with the property.
An Injunction may be issued for and against individuals, public bodies or even the State.
Disobedience of an injunction is punishable as contempt of court.
There are three characteristics of an injunction:
1. It is a judicial process,
2. The relief obtained thereby is thereby a restraint or prevention, and
3. The act prevented or restrained is wrongful.
Nelson suggests that “the nature of discretion and the rules for its guidance, in the case of Indian
Courts are the same as in England”. Under English Law:
1. If the injury to the plaintiff’s legal rights is small; and
2. is one which is capable of being estimated in money; and
3. is one which can be adequately compensated by a small money payment; and
4. the case is one, in which it would be oppressive to the defendant to grant an injunction,
then damages in substitution for an injunction may be given.
In India some of these points have been incorporated into rules of jurisdiction by being enacted as
sections of the Specific Relief Act, 1963.
They may be stated as below:
An injunction will not be issued-
1. where damages are the appropriate remedy,
2. where injunction is not the appropriate relief,
3. where the plaintiff is not entitled to an injunction on account of his conduct,
4. where the contract cannot be specifically enforced,
5. where the injunction would operate inequitably. 2

2.3.CLASSIFICATION OF INJUNCTION ON THE BASIS OF THEIR OPERATION

Section 37 of the Specific relief Act, 1963 talks about Temporary and perpetual injunctions-
On this basis injunctions may be temporary or perpetual:-
2.3.1. TEMPORARY INJUNCTIONS
Section 37(1)- Temporary injunctions are such as are to continue until a specific 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 (5 of 1908). 3

2
Avtar Singh, Contract and Specific Relief, Published by Eastern book Co mpany, 11th Ed ition, Page No. 916,917
3
The Specific Relief Act, 1963, Page No. 13
8
The purpose of a temporary injunction is to maintain the status quo and prevent irreparable
damage or preserve the subject matter of the litigation until the trial is over. After the trial the
court may issue a permanent injunction or dissolve the temporary injunction.
It is a provisional remedy granted to temporarily curb activity until the court can make a final
decision after trial. It is usually necessary to prove the high likelihood of success upon the
merits of one's case and a likelihood of irreparable harm occurring without the granting of a
temporary injunction.
A temporary injunction is a provisional relief that aims to protect the subject matter in the
existing condition, without the defendant’s interference or threat. It aims to protect the
plaintiff from getting disposed of, or his property (subject matter) being destroyed or
harmed, or from any injury to the plaintiff. The primary reason behind a temporary
injunction is to protect the interests of an individual or entity, till the final judgement is
passed. A temporary injunction, when granted, continues to remain for a specified period of
time, or till the court deems fit.
A temporary injunction may be granted in the following cases:
1. For protection of interest in property:
This category will cover the following cases:-
a. that any property in dispute in a suit is in danger of being wasted, damaged or
alienated by any party to the suit, or wrongfully sold in execution of a decree, or
b. that the defendant threatens, or intends, to remove or dispose of his property with a
view to defraud his creditors,
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. 4
The court may by order grant a temporary injunction to restrain such act, or make
such other order for the purpose of staying and preventing the wasting, damaging,
alienation, sale, removal or disposition of the property as the court thinks fit until the
disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance of breach:
a. 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 judgement, apply to the court for a temporary injunction to restrain the

4
Volition Investment (P) Ltd v Madhuri Jitendra Mashroo , AIR 2003Bo m 360, sale of premises which were in possession
of tenants, full payment was to be made by the buyer without waiting for the consent letters from ten ants to vacate,
presumption that time was not of essence. Even in the absence of such letters the memo randum o f understanding for
transfer of premises did not end. The buyer was entitled to injunction to prevent the seller fro m transferring the property to
any other person.
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defendant from committing the breach of contract or injury of a like kind arising out
of the same contractor relating to the same property or right.
b. 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. 5

2.3.2. PERPETUAL INJUNCTION


SECTION 37(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.
Perpetual injunction is one that is granted by the judgme nt that ultimately disposes of the
injunction suit. It is ordered at the time of final judgment. This type of injunction must
always be a final relief. Permanent injunctions are regarded as perpetual conditions that
produced them remain permanent. They can be granted to prevent blasting upon
neighbouring premises, to enjoin the dumping of earth or other material upon land, and to
prevent pollution of a water supply. An individual who violates an injunction may be
punished for contempt of court. A person is not guilty of contempt, however, unless he or
she can be charged with knowledge of the injunction.
SECTION 38- 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 the actual damage caused, 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.
Requirements for applicability of Section 38:
The conditions prerequisite to the applicability of this section are:-
1. there must be a legal right express or implied in favour of the applicant;
2. such a right must be violated or there must be a threatened invasion; 6
5
Avtar Singh, Contract and Specific Relief, Published by Eastern book Co mpany, 11th Ed ition, Page No. 917,918
10
3. such a right should be an existing one;
4. the case should be fit for the exercise of court’s discretion. 7 Where the inconvenience
likely to result from granting injunction is greater than that which is like ly to arise from
withholding it, the injunction should not be granted 8 ;
5. it should not fall within the sphere of the restraining provisions contained in, or referred
to, in Section 41 of the Specific Relief Act. 9

2.4.CLASSIFICATION OF INJUNCTION ON THE BASIS OF THEIR NATURE

2.4.1. PROHIBITORY INJUNCTIONS

Prohibitory injunction refers to an injunction that prohibits the defendant from taking a particular
action and maintains the positions of the parties until there is a hearing to determine the matter in
dispute. An injunction is an equitable remedy in the form of a court order, whereby a party is
required to do, or to refrain from doing, certain acts. An injunction clearly forbids a certain type of
conduct. A person who violates an injunction is in contempt of court and the court may fine or
imprison him. Prohibitory Injunction is regulated by Section 38 of the Specific Relief Act while
Mandatory injunction is regulated by Section 39 of the said Act.

2.4.2. MANDATORY INJUNCTIONS

SECTION 39- 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.
When an Injunction is issued so as to direct a particular person for doing a particular act, it is
called Mandatory Injunction.
A mandatory injunction may forbid the defendant to permit the continuance of a wrongful state
of things that already exist at the time when the injunction is issued. The purpose of mandatory
injunction is thus to restore wrongful state of things to their former rightful order. The
jurisdiction to grant an injunction is always discretionary and the Court, before granting a

6
Parkasho Devi v Tarsem Lal, AIR 2003 P&H 245, suit by plaintiff for in junction restraining the defendant from
interferingwith plaintiff’s possession. Entries in revenue records were in plaintiff’s favour. Subsequent entries which came
into being without notice to the possessor (the plaintiff) and without following Financial Co mmissioner’s instructions
could not sustain the defendant’s claim to possession. Injunction granted.
7
Gur v Bhag, 96 PR1911: 11 IC 213
8
Raja Maheshwar Dayal Seth v Yuvraj Dutt Singh, AIR 1964, P.42
9
Attar Singh Balram Singh v Vishan Das- Prabh Das, ILR (1937) 18Lah 345. An in junction is not allowed where the suit
is an abuse of the process of court, Surya Nath Singh v Khedu Singh, 1994 Supp (3) SCC 561.
11
mandatory injunction, will weigh all the facts and circumstances with great caution. A threat of
invasion over established rights justifies the grant of mandatory injunction in appropriate cases.
There is no real distinction between injunctions restrictive and mandatory, except that the orde r
in the former is negative, and in the latter it is positive. The considerations which apply to grant
of mandatory injunction are somewhat different from the considerations which govern the grant
of prohibitory injunction, although the general principles for grant of both kinds of injunctions
are essentially the same.
In Shanker Kumar v. Mohan Lal Sharma 10 , the court has held that in case of suit for the grant
of the mandatory injunction the plaintiff has to prove his case and the decree will not be passed
merely because the defendant has failed to prove his case. Where the plaintiff pleads that the
disputed property is his property, he will have to prove that the property is his property and
decree will not be passed in his favour merely because the defenda nt has failed to prove his
case. 11

10
A.I.R. 1998 Ori. 116.
11
Dr. Kailash Rai, Contract-I, Published by Central law Publications, 2nd Ed ition, 2009, Page No. 515
12
CHAPTER – 3

DAMAGES IN LIEU OF, OR IN ADDITION TO, INJUNCTION

SECTION 40- 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 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 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. 12

This section provides that 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 s uch damages. The plaintiff has specially to
include in his plaint a claim for damages also. If he has not done so, he may seek permission of the
court for the amendment of his pleadings. But where a suit, in which damages were not claimed, is
dismissed, a subsequent separate suit for damages would not lie. The court can award damages in lieu
of injunction where the injury is threatened though not yet caused. 13
The House of Lords in Leeds Industrial Coop Society Ltd v Slack, 1924 AC 851: (1924) All ER Rep
259 (HL)- Non-compliance is an offence of a perpetual nature. Laid down that damages could be
allowed to a person whose tenement is sure to suffer loss of his right to light when a planned building
structure comes up.
Where, for example, a person happened to raise his building to encroach upon the land of his
neighbour up to three inches, the court allowed the neighbour compensation instead of an order for
demolition of the building. 14 Damages have also been allowed under this principle where information
delivered in confidence was put to use. 15

12
The Specific Relief Act, 1963
13
Avtar Singh, Contract and Specific Relief, Published by Eastern book Co mpany, 11th Ed ition , Page No. 932
14
Tilokchand Nathmal v Dhundiraj Madhavurao, AIR 1957 Nag 2, of the same kind.
15
Fraser v Thames Television Ltd, 1984 QB 44: (1983) 2 A ll ER 101 (HL)
13
CHAPTER – 4

INJUNCTION WHEN REFUSED

SECTION 41- 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 the injunction is sought, unless such restraint is necessary to prevent a multiplicity of
proceedings;
CASE LAW: Kukkala Balakrishna v Vijaya Oil Mills, AIR 2009 NOC 648 (AP)
Immovable property sought to be sold in execution of decree. Perpetual injunction ought to stay
execution. Declaration of title was sought on the basis of unregistered will, which was also
suspicious and not genuine. But the defendant become successful in putting the property in
execution of the decree and the other defendant became successful bidder. The court declined
interference.

(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to
that from which the injunction is sought;
CASE LAW: SBI v Madhumita Construction Pvt. Ltd., AIR 2003 Cal 7
The expression ‘courts’ does not include the Debts Recovery Tribunal either for purposes of
appeal or revision. The High Court cannot stay further proceedings pending before the tribunal in
the exercise of the power of the power under S.9, CPC or cl. 12 of the Letters Patent.
CASE LAW: Export Credit Guarantee Corpn of India Ltd. V Annamma Philips, AIR 2011Bom
18
Small Cause Court constituted under Presidency Small Cause Courts Act, 1882 (S.6), Letters
Patent (Bombay), cls.13,36, is a court subordinate to the Bombay High Court in exercise of
original civil jurisdiction, to restrain a party to a suit before it from instituting any proceeding in a
small cause court.

(c) to restrain any person from applying to any legislative body; 16


(d) to restrain any person from instituting or prosecuting any p roceeding in a criminal matter;
CASE LAW: Sangram Singh v State of U.P., AIR 2010 All 65
No injunction can be issued restraining any person or authority from lodging an FIR. A temporary
injunction cannot be issued where permanent is not possible.

16
The Specific Relief Act, 1963
14
(e) to prevent the breach of a 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; 17
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding
except in case of breach of trust;
Thus where a wrong can be compounded in money, compensation will be an equally efficacious relief.
But in such a case also if the defendant is an insolvent or pauper, a decree for damages would be a
mere mockery and therefore the court may grant injunction.
CASE LAW: R Ramani v Shanthi Damodaran, AIR 2011 Mad 60, acquisition of ownership on the
basis of unprobated will, transfer by such a person not valid, no question of ordering specific
performance against him.
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to be the
assistance of the court;
This clause incorporates the maxim: “He who comes to equity must come with clean hands.” For
example, where an article name as “Mexican Balm” is said to be consisting of rare medicinal
qualities, but which really is nothing but an ordinary ointment, the vendor’s description being
dishonest no injunction can be issued to restrain another dealer from selling a similar article under
the same name in order to misguide the people.
CASE LAW: Premji Ratansey Shah v Union of India, (1994) 5 SCC 547 at p. 550, no injunction
can be issued in favour of a trespasser or a person who gained unlawful possession as against the
true owner.
CASE LAW: S. Jaffarval v B. Pedda Siddaiah, AIR 2003 NOC 219 (AP)
No injunction was granted to a person about whom the official report was that he was not in
possession of the land in question. This report was verified by the court finding of a fact. The
finding was not interfered with.
CASE LAW: M.S. Madhusoodhanan v Kerala Kaumudi P Ltd, (2004) 9 SCC 204: AIR 2004 SC
909
Application for permanent injunction against obstruction to peaceful enjoyment of office premises,
suit filed 2 years after the obstruction began. Refusal of injunction was held to be improper. The
right to enjoyment of property could not be taken to be extinguished by inaction for 2 years.

(j) when the plaintiff has no personal interest in the matter. 18

17
The Specific Relief Act, 1963
18
Avtar Singh, Contract and Specific Relief, Published by Eastern book Co mpany , 11th Ed ition, Page No. 928,929
15
CHAPTER – 5
INJUNCTION TO PERFORM NEGATIVE AGREEMENT

SECTION 42- Injunction to perform negative agreement.—


Notwithstanding 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 the 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. 19

 Consequential Relief:
In a suit for declaration to the effect that defendants are neither owners nor have any right of
redemption, there was omission to seek declaration against statutory order of Collector granting
redemption of mortgage and affirming possession of defendant therefore, suit was barred.

 Contract in restraint of trade:


The question whether an agreement is void under Section 27 of the Contract Act, 1872 must be
decided upon the wording of that section. There is nothing in the wording of Section 27 to suggest that
the principle stated therein does not apply when the restraint is for a limited period only or is confined
to a particular area. Such matters of partial restriction have effect only when the facts fall within the
exception to the section.
A contract in restraint of trade is one by which a party restricts his future liberty to carry on his trade,
business or profession in such manner and with such persons as he chooses. A contract of this class is
prima facie void, but it becomes binding upon proof that the restriction is justifiable in the
circumstances as being reasonable from the point of view of the parties themselves and also of the
community.
The restraint may not be greater than necessary to protect the em-ployer, nor unduly harsh and
oppressive to the employee.

19
The Specific Relief Act, 1963
16
 Restraint of trade:
A negative covenant restricting an employee from performing similar or substantially similar duties is
not restraint of trade unless such contract is unconscionable or excessively hard.

CASE LAW: Lumley V Wagner


‘A’ a singer , agreed that she would sigh for 12 months at B’s theatre and that she would not sing
elsewhere in the public during that period. Here B cannot obtained specific performance of the first
part of the contract (i.e. to sing at his theatre), but he is entitled to an injunction, restraining A from
singing at other public places during that period. In this case though there is one contract but contain
two parts one is positive and other is negative. The two parts are independent contracts. In this case
court cannot debar itself to give injunction in case of negative covenant.

17
CONCLUSION AND RECOMMENDATION

The term “injunction” has been the subject of various attempts at a definition. It has been defined by
Joyce as “An order remedial, the general purpose of which is to restrain the commission and
continuance of some wrongful act of the party informed.” In Burney “injunction has been defined to
be a judicial process, by which one who has invaded or is threatening to invade the rights, legal or
equitable, of another is restrained from continuing or commencing such wrongful act.”

Injunction is a relief founded in equity and the power to grant or refuse injunction essentially lies in
the realm of the discretion of the Court. The relief cannot be claimed as a matter of right, howsoever
meritorious the case of the applicant may be. The power, therefore, has to be exercised with the
greatest care, caution and circumspection. It is an extraordinary and delicate power and is associated
with dangers of serious loss or inconvenience to an innocent party. This calls for deliberation as well
as restraint on the part of the court, and warrants sparing use.
Courts are institutions that serve important functions for society, including dispute processing, and the
enforcement of rules. Courts have a profound effect on people within their jurisdiction, especially
individuals subjected to a civil law suit. Decisio ns produced by courts are distinguished from
decisions by other governing institutions in two important ways. First, unlike decisions generated by
other authoritative institutions within governments, court decisions are guided by law. Decision
makers within courts, whether they are judges or other judicial officers, seek to follow the
authoritative rules of society as embodied in constitutions, statutes, and court precedents. Although
decision makers make discretionary judgments and sometimes even apply personal values in reaching
decisions, the application of discretion and values is limited by decision makers' efforts to make their
decisions fit the boundaries and guidelines imposed by legal rules. By contrast, other decisions makers
such as legislators and bureaucrats openly make decisions based on policy preferences, and orders
from superior officials. Court decisions typically are generated by carefully specified legal processes.
The distinctive aspects of courts reinforce their image as trustworthy inst itutions guided by principles
rather than whims. Judges have a direct capacity to ensure that their decisions are obeyed. Thus courts
need to enhance and maintain the revered image of the judicial branch to garner sufficient public
respect and compliance to enable courts to fulfil their functions for society. One of the most important
functions of the courts is to enforce the law. This is done by use of formal procedures, by use of pre-
determined settings and procedures. The courts' image as majestic instit utions that make decisions
according to careful deliberation and principles of law can reassure the public that enforcement of
laws is fair, proper, and worthy of respect and acceptance. Another function served by courts is
dispute resolution. When individuals have disputes over property, money or contracts, the society
needs mechanisms to process and resolve them. In the absence of efficient mechanisms to handle
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disputes, people would address conflicts themselves and thereby produce risks that interpersona l
violence would eventually develop when disagreements are sufficiently intense. The use of self- help
justice can produce unfair results if the stronger disputant can intimidate an opponent into
surrendering despite the legitimacy of the weaker party's cla im. Moreover, self- help justice especially
in its violent forms, produces social instability and fear. Without fair and reliable dispute-processing
mechanisms, people would be reluctant to buy and sell goods, enter into contracts, and interact in
ways that are beneficial to economic growth. To perform these functions effectively, courts must
possess sufficient power and independence to make decisions. If the feeling develops that judges'
decisions are not produced independently or in accordance with the rules of law, courts will lose
legitimacy, and people will cease to rely on courts for dispute processing and for redressing claims.
There are frequent debates about proposed court reforms that might enhance the accuracy and
reliability of decisions as well as improve the consistency of equal outcomes for all people, so as to
keep the court processes relevant to the people as effective means of dispute redressal. With this
background in mind, this study was charted to delve into the hypotheses and to explore answers to
various research questions relating to the remedy of injunction. Inferences have therefore been drawn
on the basis of detailed assessment of various statutes

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BIBLIOGRAPHY

Secondary Sources
List of Books
1. The Specific Relief Act, 1963
2. Avtar Singh, Contract and Specific Relief, Published by Eastern book Company, 11th Edition
3. Dr. Kailash Rai, CONTRACT-I, Published by Central law Publications, 2nd Edition, 2009
4. Hugh Beale, CHITTY ON CONTRACTS, Vol. I, General Principles, Thomson Reuters Ltd., 30 th
Edition,2008.
5. Pollock & Mulla , THE INDIAN CONTRACT AND SPECIFIC RELIEF ACTS, Lexis Nexis, 14 th
Edition, 2013.
6. Justice P.S. Narayana, LAW OF SPECIFIC RELIEF, Asia Law House, 8 th edition, 2012.
7. S.C. Banerjee, LAW OF SPECIFIC RELIEF, Universal Law Publishing, 13th edition, 2015.

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