The law of injunction in India has its origin in the Equity
Jurisprudence of England from which we have inherited the present
administration of law. England too in its turn borrowed it from the Roman Law
wherein it was known as Interdict. The injunction as a chancery remedy
developed at the time of Henry, the Vlth. The Chancellor set aside a certain
bond by the plaintiff as one not binding on him. In India, the Specific Relief
Act, 1963 provides a large number of remedial aspects of Law. This Act came in
force in the replacement of earlier Act of 1877. Injunction is a judicial
process by which one who has invaded or is threatening to invade the rights,
legal or equitable, of another, is ordered to refrain from doing, or to do a
particular act or thing.
What
is perpetual Injunction?
As is clear from Section 37 (2) of Specific Relief Act, 1963
(hereinafter referred to as the Act), a perpetual injunction can only be
granted by the decree made at the hearing and upon the merit 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 right of the
plaintiff. Section 38 of the Act further provides the circumstances where the
perpetual injunction may be granted in favour of the plaintiff to prevent the
breach of an obligation existing in his favour, whether expressly or by
implication. In contractual matters when such obligation arises, the Court has
to seek guidance by the rules and provisions contained in Chapter II of the Act
dealing with specific performance of contracts.[1]
When a mere suit for permanent injunction will
lie, and when it is necessary to file a suit for declaration and/or possession
with injunction as a consequential relief, are well settled. They are referred
below briefly.
1) Where a plaintiff is
in lawful or peaceful possession of a property and such possession is
interfered or threatened by the defendant, a suit for an injunction simpliciter
will lie. A person has a right to protect his possession against any person who
does not prove a better title by seeking a prohibitory injunction. But a person
in wrongful possession is not entitled to an injunction against the rightful
owner.
2) Where the title of the
plaintiff is not disputed, but he is not in possession, his remedy is to file a
suit for possession and seek in addition, if necessary, an injunction. A person
out of possession, cannot seek the relief of injunction simpliciter, without
claiming the relief of possession.
3) Where the plaintiff is
in possession, but his title to the property is in dispute, or under a cloud,
or where the defendant asserts title thereto and there is also a threat of
dispossession from defendant, the plaintiff will have to sue for declaration of
title and the consequential relief of injunction. Where the title of plaintiff
is under a cloud or in dispute and he is not in possession or not able to
establish possession, necessarily the plaintiff will have to file a suit for
declaration, possession and injunction.[2]
When perpetual
injunction would be granted?
Section 38 of
the Specific Relief Act provides for the grant of a perpetual injunction to
prevent the breach of an obligation existing in favour of a plaintiff whether
expressly or by implication. Speaking on the scope of Section 54 of the Specific Relief Act, 1877
corresponding to Section 38 of the present Act His Lordship
Justice Asutosh Mookerjee stated :
'This is fairly clear from the opinion, and
controlling paragraph of the section which provides that in order to entitle a
litigant to a perpetual injunction he must establish that the injunction is
required to prevent a breach of an obligation. The term "obligation"
is defined in S. 3 to include every duty enforceable by
law, so that when a legal duty is imposed on one person in respect to another,
that other is invested with the corresponding legal right. The first paragraph
of the section thus establishes the broad and general rule that given the
breach of an existing legal right which is vested in the applicant, the breach
thereof may be restrained by injunction. This is an elementary principle, for
as Lord Kingsdown said in Imperial Gas Light and Coke Co. v. Broadbent, (1859)
7 NLC 600, when a plaintiff applies for an injunction to restrain a violation
of an alleged right, if the existence of the right be disputed, he must
establish that right before he gets the injunction to prevent the recurrence of
its violation."[3]
A permanent injunction is only granted when
(1) some established right has been invaded and
(2) when damage has accrued or must necessarily
accrue from the act or omission complained of. There must have been (1) a
material injury to a clear legal right; and (2) damages must not be a
sufficient compensation.[4]
The position therefore is that when a plaintiff
seeks the relief of injunction to protect a right by prescription claimed by
him, what he does is to invite the Court to uphold his claim or right and to
prevent interference with the exercise of that right.
For
the grant of perpetual or permanent injunction the existence of a right in the
plaintiffs and its threatened violation to the plaintiffs right would have to
be found. It is, therefore, clear that every suit for a permanent injunction
must involve a determination or a declaration to the above effect, or in other
words, such a declaration would be necessarily involved or implied in the case
of every decree for permanent injunction.
Under normal parallence, while granting perpetual injunction,
the Court has to see the nature of right being invaded, whether the
compensation would be an inadequate remedy for its redressal, there is no
standard for ascertaining the actual damage caused by such invasion, there
shall not have efficacious remedy to the plaintiff in respect of such invasion,
the plaintiff would not have been guilty of delay and latches and his conduct
is not unfair. Aspect of comparative hardship also assumes importance.[5]
Points to consider
while granting permanent injunction
In
a suit for declaration and perpetual injunction the plaintiff must first
establish his legal right. After the plaintiff succeeds in establishing his
legal right and its violation he is granted a permanent injunction. Permanent
injunction can be granted by the decree made at the hearing and upon the merits
of a suit which concludes a right for ever. Thus, unless the rights of all
persons who have joint right, title and interest are brought on record no violation
of right of all persons can be determined. Thus it is very simple that all
joint owners must be on record. Where there is a joint right it may be
necessary for all persons jointly interested to be joined as parties and if
they are not joined the suit will be bad for misjoinder.[6]
In a suit for permanent injunction to restrain
the defendant from interfering with plaintiff's possession, the plaintiff will
have to establish that as on the date of the suit he was in lawful possession
of the suit property and defendant tried to interfere or disturb such lawful
possession. Where the property is a building or building with appurtenant land,
there may not be much difficulty in establishing possession. The plaintiff may
prove physical or lawful possession, either of himself or by him through his
family members or agents or lessees/licensees. Even in respect of a land
without structures, as for example an agricultural land, possession may be
established with reference to the actual use and cultivation. The question of
title is not in issue in such a suit, though it may arise incidentally or
collaterally.[7]
Refusal of Perpetual
Injunction
The Court shall not grant Injunction under the
following circumstances:
1.
From instituting or prosecuting civil or criminal proceeding;
2.
From applying to any legislative body;
3.
To prevent the breach of a contract the performance of which
would not be specifically enforced;
4.
To prevent, on the ground of nuisance, when such act is not
reasonably clear that it will be a nuisance;
5.
To prevent a continuing breach in which the plaintiff has
acquiesced;
6.
When efficacious relief is available
7.
To disentitle any person to the assistance of the court;
8.
When the plaintiff has no personal interest in the matter[8]
Difference Between Sec. 34 and Sec. 37, 38 of Specific Relief Act
Mr. Justice Nain referred to the difference
between Section 34 of the Specific Relief Act on the one
hand and Sections 37 and 38
on the other. His Lordship held as follows :
"Coming to the form of the suit, the suit is
so framed as to be a suit for an injunction. Under Section 34 of the Specific Relief Act of 1963, a
person may file a suit for a declaration as to any legal character, or as to
any right to any property. This is a discretionary relief. Section 34 provides that no Court
shall make any such declaration where the plaintiff, being able to seek further
relief than a mere declaration of title, omits to do so. Section 37 pertains to injunctions. Sub-section
(2) provides that 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, from the commission of an
act, which would be contrary to the rights of the plaintiff. Section 38 prescribes when a perpetual injunction
may be granted. The difference between Section
34 on the one hand and Sections 37 and 38 on the other hand is that the Court
may not grant a declaration where the matter is capable of consequential
relief. But there is no such restriction put on injunctions and the Court may
grant an injunction as a substantive relief without any prayer for declaration,
although in many cases a declaration, may be implicit in the grant of a
perpetual injunction."[9]
Conclusion
It is settled law that
no interim injunction would be issued if the final relief cannot be granted. An
interim relief is granted to a person on the footing that that person is prima
facie entitled to the right on which is based the claim for the main relief as
well as the interim relief. That relief is granted as an interim measure till
the disposal of the suit in which is to be investigated the validity of the
claim or right that has been put forward. If no such claim has been put forward
in the suit, it means that there can be no occasion for investigation of such a
claim in the suit, there can be no justification for the grant of an interim
relief which will just lapse on the termination of the suit, but which will
leave the parties in the same position in which they were before the
institution of the suit. in the course of which the interim relief was sought
and obtained. That is not the scope of O. 39, Rule 1.
The
power to grant an injunction is at the discretion of the court. This
discretion, however, should be exercised reasonably, judiciously and on sound
legal principles. Injunction should not be lightly granted as it adversely
affects the other side. The grant of injunction is in the nature of equitable
relief, and the court has undoubtedly power to impose such terms and conditions
as it thinks fit.
[1]
Justice
R.R.K. Trivedi, 'LAW OF INJUNCTIONS' [1996] Judicial Training Research
Institute's Journal, UP <http://ijtr.nic.in/articles/art25.pdf>
[2]
Anathula Sudhakar vs P Buchi Reddy, [2008] SC AIR 2033
(R. Raveendran J. , P. Sathasivam J.)
[3] Ram
Kissen vs Pooran Mull, [1920]
(Cal) AIR 239
(Asutosh Mookerjee J.)
[4]
Woodroffe, The
Law relating to Injunctions in British India (2nd edn, Thacker, Spink & Co 1906) Page – 130
[5] MJA, 'Law of Injunctions : Temporary
Injunction including ex-parte temporary injunction, Perpetual Injunction and
mandatory injunction' <http://mja.gov.in/Site/Upload/GR/Summary
- workshop dt. 18.01.2015.(Civil).pdf>
[6]
Barada Sundari Paul and others Vs. The
Assistant Custodian, Enemy Property, 1995
15 BLD (AD) 95 (Latifur Rahman, J)
[7]
Supra note 2
[8]
Saif Rasul Khan, 'The Law of Injunction' (LexQuest, 26 August 2015) <http://lexquest.in/the-law-of-injunction/>
[9] Indumatiben v. Union of India, AIR
1969 Bom 423, (Nain J.)
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