The grant of perpetual injunctions is governed by the provisions in Chapter VIII of the Specific Relief Act, 1963 and that Chapter consists of Sections 38 to 44. Section 38 (1) says that 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, subject to the other provisions of the Act.
Perpetual Injunction When Granted
Sub-section (2) of Section 38 says that when any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II. Sub-section (3) however says that the court can grant a perpetual injunction in the following cases if the defendant invades or threatens to invade the plaintiff’s right to or enjoyment of the property-
- Where the defendant is trustee of the property for the plaintiff; [S. 38 (3) (a)]
- Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; [S. 38 (3) (b)]
- Where the invasion is such that compensation in money would not afford adequate relief; [S. 38 (3) (c)]
- Where the injunction is necessary to prevent a multiplicity of judicial proceedings. [S. 38 (3) (d)]
When a mandatory injunction is ordered as per Section 39 of the Specific Relief Act, 1963, two things are to be taken into account; (1) The Court has to determine what acts are necessary in order to prevent the breach of obligation whether arising out of a contract or tort; (2) The requisite acts must be such as the Court is capable of enforcing.
Section 39 of the Specific Relief Act reads as:
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.
A mandatory injunction relief can never be a vague one. It can be issued to compel the execution of certain work. The jurisdiction to grant a mandatory injunction relief is to be exercised with caution and be strictly confined to cases where the remedy by damages is not adequate for the purpose of justice, and restoring things to their former condition is the only remedy which will specify the requirements of the case.
Damages in lieu of, or in addition to, injunction
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.
From the provisions contained in S.40 (1) and (2) of the Act, 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.
Injunction When Refused
Section 41 of the Specific Relief Act enacts categories of cases as to when such a relief of injunction should be refused.
An injunction cannot be granted
- 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; [S. 41 (a)]
- To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; [S. 41 (b)]
- To restrain any person from applying to any legislative body; [S. 41 (c)]
- To restrain any person from instituting or prosecuting any proceeding in a criminal matter; [S. 41 (d)]
- To prevent the breach of a contract the performance of which would not be specifically enforced; [S. 41 (e)]
- To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance; [S. 41 (f)]
- To prevent a continuing breach in which the plaintiff has acquiesced; [S. 41 (g)]
- When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust; [S. 41 (h)]
- When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court; [S. 41 (i)]
- When the plaintiff has no personal interest in the matter. [S. 41 (j)]
Injunction to Perform Negative Agreement
Section 42 of the Specific Relief Act, 1963 reads as under: