Injunction & Damages under Section 40 of the Specific Relief Act, 1963

From the provisions contained in Section 40 the Specific Relief Act, 1963 it emerges that in a suit for perpetual injunction or Mandatory injunction, the plaintiff may also claim damages and it would be open to the court to award damages in addition to or in substitution for a decree of perpetual injunction or mandatory injunction provided the plaintiff has claimed damages in his plaint.

Even if the plaintiff has not claimed damages in the plaint, it is open to the plaintiff to amend the plaint at any stage of the proceedings and include the claim for damages. In the light of the words “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 just claim”, contained in the proviso to sub-sec.(2) of S.40 of the Act, the court cannot refuse permission to the plaintiff to amend the plaint to include the claim for damages in a suit for perpetual injunction or mandatory injunction.

Therefore, the claim for damages is inherent in a suit for perpetual injunction or mandatory injunction. Therefore, where no such relief is specifically claimed, if sought for at any stage of the proceedings, it has to be allowed to be added.

Section 40 of the Specific Relief Act, 1963, reads as follows :

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.

A plain reading of Section 40, sub-section (2) proviso clarifies that the Court shall at any stage of the proceedings allow the plaintiff to amend the plaint on such terms as may be just, provided that no such damages have been claimed.

A combined reading of sub-section (1) and (2) with proviso clarifies that plaintiff may claim damages in suit for injunction but no relief for damages shall be granted unless the plaintiff has claimed such relief; provided where no such damages have been claimed, the Court SHALL at any STAGE OF THE PROCEEDINGS allow to amend the plaint to claim damages.

Thus, it is clear that when the plaintiff has claimed damages in his plaint, he is entitled to do so. When he intends to amend his plaint to claim such damages, where no such damages have been claimed, the Court shall have to permit the plaintiff to amend the plaint at any stage of the proceedings. The word “such damages” means, the specific damages viz., the amount of damages sought to be claimed through the amendment.

The language of Section 40 makes it clear that it is for the plaintiff to claim damages in lieu of injunction. Section 40 clarifies that if the plaintiff does not claim damages, the question of awarding damages does not arise. But when the plaintiff claimed damages and is praying for amendment to specify such damages, the plaintiff is entitled for amendment of plaint for specifying such damages, as he did not claim such damages by specifying the amount.

Therefore, it is clear that in a suit for permanent injunction according to proviso to sub-section (2) of section 40, it is imperative and the Court has no option but to allow the amendment by adding the prayer for such damages, this being the provision of law.

Since the proviso to Section 40 sub-section (2) of the Specific Relief Act reads as an imperative and the Court has no option except to allow the amendment of the plaint and the fact that the application is belated is immaterial. The only discretion left to the Court is as regards the terms on which the plaintiff may be permitted to amend. Thus, any proposed amendment is to be allowed in view of the mandatory nature of the language employed under the proviso to section 40 (2) of Specific Relief Act.

See Also : M/s Hi Sheet Industries v. Litelon Limited [Madras High Court, 01-12-2006]

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