An injunction may be issued for and against individuals, publics bodies or even the State. Disobedience of an injunction is punishable as contempt of court.
Injunction acts in personam. It does not run with the property.
There are three characteristics of an injunction:
(i) it is a judicial process,
(ii) the relief obtained thereby is a restraint or prevention, and
(iii) the act prevented or restrained is wrongful.
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-
(i) where damages are the appropriate remedy,
(ii) where injunction is not the appropriate relief,
(iii) where the plaintiff is not entitled to an injunction on account of his conduct,
(iv) where the contact cannot be specifically enforced,
(v) where the injunction would operate inequitably,
36. Preventive relief how granted.- Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
37. Temporary and perpetual injunctions.- (1) Temporary injunctions are such as are to continue until a specified 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.
(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 enjoyed from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.
Cases in which temporary injunction may be granted
A temporary injunction may be granted in the following cases:
1. For protection of interest in property
2. Injunction to restrain repetition or continuance of breach
It should be noted that grant of injunction is discretionary with the court. Section 36 of the Specific Relief Act, 1963 expressly lays down that "Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual". Therefore the court will grant temporary injunction if the following conditions are satisfied:
(i) The plaintiff must establish a prime facie case.
(ii) An irreparable injury would result if the injunction were refused and that there is no other remedy open to the applicant by which he could protect
(iii) himself from the consequences of the apprehended injury.
(iv) The conduct of the plaintiff has not been blameworthy.
(v) The balance of convenience requires that the injunction should be granted.
Interim injunction when perpetual injunction is prayed for
It is also a settled principle that in a suit where there is no permanent injunction sought for, in the final analysis, ordinarily a temporary injunction cannot be granted.
The principles that govern the grant of a perpetual injunction would govern the grant of a temporary injunction also.
Disobedience or breach of injunction
Section 94(c) and Rule 2-A of Order 39 of the Civil Procedure Act, 1908 provides that there shall be a penalty of either arrest or attachment of property of the person who has committed the breach of the injunction.
If the disobedience or breach continues, the attached property may be sold and the court may award compensation to the injured party, of an amount which it deems to be appropriate.
Section 37(2) lay down that a permanent injunction can be granted only by a decree at the hearing and upon the merits of the suit. In other words for obtaining a permanent injunction, a regular suit is required to be filed in which the right claimed by the plaintiff is examined on merits and finally the injunction is granted by means of the decree.
A permanent injunction therefore finally decides the rights of parties whereas a temporary injunction does not do so. A permanent injunction forbids the defendant from asserting a right or committing an act which would be contrary to the rights of the plaintiff.
Requirements for applicability of Section 38, on the grant of perpetual injunctions
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 should be a threatened invasion;
3) such a right should be an existing one;
4) the case should be fit for the exercise of court's discretion. Where the inconvenience likely to result from granting injunction is greater than that which is likely to arise from withholding it, the injunction should not be granted;
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.
The word "obligation" in Section 38(1) has been used in a wide sense and it may arise from:
(iv) Any other legal obligation.
The essence of the section is that where a contract contains both affirmative and negative agreements and although it may be beyond the powers of the court to compel specific performance of the affirmative part, a party may be restrained from committing a breach of the negative part, provided that the plaintiff has performed his part of the contract.
Refusal of injunctive relief
Section 41 lays down the circumstances when perpetual injunction will be refused by the court. In other words, Section 41 lays down the defences that can be raised against the prayer for grant of an injunction. It provides:
That an injunction cannot be granted-
(a) to restrain any person from instituting or prosecuting any proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(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 acquiescenced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
[(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility-related thereto or services being the subject matter of such project.
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
Restraint on person or property outside jurisdiction
The court which passed a decree has power to restrain a person from handing over property in his possession to the judgment debtor (suit property) along with the title documents and keeping them in safe custody. Such an order is in the nature of a freezing order, or mareva injunction, an order akin to an Anton Piller order. Such an order can be passed if the property or the person concerned is outside the jurisdiction of the court.
Order for rescuing arbitration process
When one of the parties attempts to sabotage an arbitration proceeding, the court can grant an injunction provided for by the Specific Relief Act, 1963.
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.
Mandatory injunction, however, will not be granted in the following cases:
(i) Where compensation in terms of money would be an adequate relief to the plaintiff.
(ii) Where the balance of convenience is in favour of the defendant.
(iii) Where the plaintiff is guilty of allowing the obstructions to be completed before coming to the court, i.e. where plaintiff has shown acquiescence in the acts of the defendant.
(iv) Where it is desired to create a new state of things.
Damages in lieu of in addition to injunction [S.40]
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 such damages.
SCHEDULE RELATING TO THE PROVISIONS
UNDER SECTIONS 20-A AND 41(ha)
By the Specific Relief (Amendment) Act, 2018, Sections 20-A and 41(ha) have emphasised the importance of preventing any impediments or delays in infrastructure projects. The schedule, added in furtherance of these provisions, lays down the categories of the projects and infrastructure sub-sectors which the Act seeks to expedite. These categories include transport, energy, water and sanitation, communication etc. The schedule also gives the sub-categories under every broad category, such as roads and bridges under transport, oil pipelines under energy and so on.