The Specific Relief Legislation, 1963 is an act of the Indian Parliament that
replaced an older act enacted in 1877. On 13th December 1963, the same was
passed. The statute provides remedies for those who have had their contractual
or civil rights violated. The following research is limited to Injunction;
nonetheless, the researcher has included all feasible components to explain the
An injunction is a sufficient remedy in the form of a judicial order compelling
a party to perform or refrain from performing specified acts. Failure to enforce
an injunction may result in criminal or civil penalties, as well as payment of
damages or acceptance of sanctions. Breach of injunctions is occasionally viewed
as a serious criminal offence, punishable by arrest and maybe imprisonment.
Temporary restraining orders are a type of emergency injunction that is only
effective for a limited length of time. Preliminary injunctions are a type of
temporary restraining order that takes effect immediately and lasts until a
definitive injunction is granted, which may last indefinitely or until certain
requirements are met.
Each judiciary is established with the purpose of administering justice amongst
particles, and it must be presumed that it possesses all of the authorities
necessary to offer complete and equal justice to all.
Interim relief may be granted only in aid of and in addition to the major relief
available to a party upon final determination of his claims in a lawsuit or
other proceeding, in accordance with recognized legal principles. As a result of
this, unquestionably, the court has the ability to grant temporary relief while
the matter is underway. Temporary injunctions are those granted during the
course of a case's legal proceedings.
Injunctions are a type of judicial procedure in which a party is ordered to
perform or refrain from performing a specific act. It is a legal remedy in the
form of a court order addressed at a single individual that either prohibits him
from performing or attempting to perform a particular act (prohibitor
injunction) or compel him to perform a particular act (compelling injunction)
Interim relief's main purpose is to safeguard disputed assets until the
constitutional rights and competing claims of the parties before the law are
addressed. In plain language, the purpose of issuing an order for interim relief
is to develop a feasible methodology to the levels required by the
circumstances, while taking into account the positives and negatives of the
scenario and striking a delicate balance between two competing interests,
namely, damage and prejudice to the plaintiff if relief is denied, and damage
and prejudice to the defendant if relief is granted. The court may give or deny
an interim remedy based on sound judicial judgement.
The fundamental purpose of granting a temporary restraining order is to
safeguard and preserve the status quo in effect at the time the lawsuit is
filed, and to bar any changes until the case is decided. It is a form of
protective relief granted to a party to protect them from further harm.
Nonetheless, the necessity of such security must be weighed against the
accused's desire to be protected from harm caused by the exercise of his
fundamental rights. When the court exercises its discretion, it must weigh one
necessity against another and determine where the balance of convenience lies
before reaching an appropriate conclusion.
PART III PREVENTIVE RELIEF CHAPTER VII INJUNCTIONS GENERALLY
The special relief act that governs the issuing of injunctions is limited to
civil proceedings. It is discussed in Chapter VII of Part III of the 1963
Special Relief Act. The following summarises all of the injunctions issued
pursuant to Chapter VII of Part III of the particular relief act.
Preventive relief how granted:
Preventive relief is granted at the discretion of the
court by injunction, temporary or perpetual.
The term preventative implies this; it is the act of preventing something. And
preventive relief may be provided in accordance with the court's discretion,
that is, it may be temporary or permanent, as discussed further.
Temporary injunctions are those that are intended to last for a specified period
of time or until further order of the court. They may be granted at any stage of
a litigation and are governed by the 1908 Code of Civil Procedure (5 of 1908).
Also known as a temporary restraining order, an interim restraining order is
only in effect for a specified length of time or until the court issues
additional notice. Temporary injunctions may be issued at any time the court
thinks appropriate, as long as they are in the case's best interests.
Dalpat Kumar vs. Prahlad Singh,
(1992) 1 SCC 719, addressed the essential
principles governing the award of a temporary injunction, concluding as follows:
The mere fact that the case is prima facie does not suffice to grant injunction.
Additionally, the Court ruled that there must be no remedy accessible to the
party and that they may suffer irreparable harm in order for an injunction to be
On the other hand, irreparable injury does not require that the pain be
physically irreparable; it merely requires that the injury be material, that is,
one that cannot be adequately compensated by damages.
Thirdly, the "balance of
convenience" must favour issuance of an injunction. When deciding whether to
grant or deny an injunction, the court should exercise sound judicial discretion
in calculating the amount of substantial 11 mischief or damage that is likely to
be caused to the parties if the injunction is denied, and comparing it to the
amount of substantial 11 mischief or injury that is likely to be caused to the
other side if the injunction is granted.
An injunction would be granted if the Court concludes, after weighing
conflicting possibilities or probabilities of damage, that the subject matter
should be maintained in the status quo pending the outcome of the action. As a
result, the Court must exercise due diligence in granting or denying the ad
interim injunctive relief pending the outcome of the litigation. --
A permanent injunction may be obtained only by a decree entered after the
hearing and on the merits of the case; the defendant is thus perpetually
restrained from asserting a right or from committing an act that would violate
the plaintiff's rights.
Perpetual injunctions, sometimes known as perpetual injunctions, are awarded by
the court at the conclusion of the proceedings, or at the time of judgement.
To get a permanent injunction, a conventional suit must be filed with the
Hon'ble court, where the alleged pleas are reviewed on their merits and the
injunction is granted by the court through a ruling.
The following case illustrates the concept of perpetual injunctions:
On 3 November 1995, Chinnappa squared off against Srinivasa Reddy. Citations
that are equivalent: 1996 ILR KAR 932
The case's brief facts are as follows: the plaintiff sought a permanent
injunction prohibiting the defendant from trespassing on his land. The defendant
party sought for a mandatory injunction pursuant to order 39 rules 1 and 2 read
with section 151 C.P.C., Prayed-removal of plaintiff's fencing. The learned
Munsiff directed that the fencing be removed.
Section 37 was interpreted in the order of Hari Nath Tilhari, J. Temporary
injunctions are those that are given to last for a specified amount of time or
until further orders of the Court, as defined in Section 37(1) of the Specific
Relief Act, and are controlled by C.P.C.
Section 37, subdivision (2) The defendant is forever forbidden from violating
the plaintiff's rights. Similarly, the defendant is forbidden from asserting any
claim that clashes with the plaintiffs. The decree may grant a perpetual
injunction to compel or enforce the performance of a certain act, in which the
party is directed to perform a beneficial act or is banned from committing the
A temporary injunction order's scope is limited during the
course of the claim, and it is actually limited to assisting the Court in
accomplishing the primary objective of its eventual conclusion. If, however, a
permanent injunction is granted, the law requires that it be granted only after
the Court has decided the case on its merits and rendered a decision in a
CHAPTER VIII PERPETUAL INJUNCTIONS
Perpetual injunction when granted.
Section 38 of the Act further provides the circumstances where a
perpetual injunction may be granted in favour of the plaintiff in order to prevent the breach of an obligation, whether express or implied, existing in his favour.
Subject to the other provisions included in or referred to in this Chapter, the
plaintiff may obtain a perpetual injunction to enjoin the breach of a duty that
exists in his favour, either expressly or implicitly.
When such an obligation arises as a result of a contract, the court shall follow
the rules and regulations set forth in Chapter II.
When the defendant infringes or threatens to infringe upon the plaintiff's right
to or enjoyment of property, the court may issue a perpetual injunction in the
following instances: :
where the defendant acts as trustee for the plaintiff's property;
where there is no established standard for determining the actual damage caused
or likely to be caused by the invasion; where the invasion is so severe that
monetary compensation would not provide adequate relief; and where the
injunction is necessary to avoid a proliferation of judicial proceedings.
Section 38 of the particular relief act 1963 must be read in conjunction with
section 41, which states that injunctions cannot be obtained under clauses (a)
Clause (h) specifies that an injunction cannot be granted if another procedure,
law, or conduct exists.
It was in Kailash Chand versus Bajrang Lal that an adopted son sued to prevent
his parents from alienating ancestral property. The court decided that an
injunction cannot be granted where a party can get effective relief through
another mode of procedure, except in the instance of a breach of trust.
In Balakrishna Dattatraya Galande v. Balakrishna Rambharose Gupta and Another,
the Supreme Court discussed section 38 of the special relief statute. The
Plaintiff claimed to be a tenant and sought a permanent injunction barring the
Defendant-landlord from interfering with his peaceful possession of the suit
Observations and the findings of the Supreme Court of India
"Permanent injunctions can be given only to a party who is in real possession of the property in a claim brought under Section 38 of the Specific Relief Act," the Supreme
Court said. The first respondent-plaintiff bears the burden of proving that he
was in real and physical possession of the property on the date of litigation."
Furthermore, it was determined that the Plaintiff's possession of
the suit property could not be predicated on an
inference derived from the facts.
When can injunction be granted
Permanent injunction can be awarded to prevent a breach of an existing duty
in the plaintiff's favour, Whether a duty derives expressly or by inference from
a contract that may be formally enforced, or when the accused infringes
or endangers to infringe on the complainant's right to, or pleasure of,
property, including where the intrusion is such that monetary compensation would
be insufficient, or where there is no criterion for measuring the actual
damage caused, or likely to be caused, by the invasion.
In the matter of Raman Hosiery Factory V. J.K. Synthetics Ltd
1974 DEL.207, the suit was filed by the plaintiff, praying that the
September agreement with the defendant be declared null and void & their workers
be restrained by a perpetual injunction. it was stated in the judgement that,
no interim injunction can be issued if the final relief cannot be granted
as was held in K.P.M. Aboobucker v. K. Kunhamoo
, AIR 1958 Mad 287:
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.
Also check the case of Gramophone Company of India V. Shanti Films Corporations A.I.R. 1997 CAL 63.
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
To award a mandatory injunction U/s. 39, of Specific Relief Act two
elements have to be taken into consideration that are:
The court has to determine what acts are necessary in order to prevent a
breach of application, Acts must be such as the court is capable of enforcing.
In the case of, C. Kunhammad v. C.H. Ahamad Haji AIR 2001 Ker 101, the plaintiff
alleged that the defendant to have trespassed by laying pipe line into the
property owned by the plaintiff. It was prayed that mandatory injunction
be given. It was held by the court & stated that the mandatory injunction be granted on the grounds
of U/s. 39 of Specific Relief Act.
Also see the case of Hammad Ahmed Vs. Abdul Majeed & Ors.
Damages in lieu of, or in addition to, injunction
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.
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.
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.
In the case of Indian Agro & Recycled Paper Mills Association vs. Tafcon Projects (India) Pvt. Ltd. (Tafcon) & Others, the plaintiff made an application under Order VI Rule 17 of the Code of Civil Procedure, 1908, seeking to modify the
plea to seek a decree of damages in the amount of Rs.3,00,00,000/-.
"Any suggested change is to be accepted in light of the required character of the wording utilised under the provision to Section 40(2) of the Specific Relief Act," the
court noted. 26. The argument that the current application is precluded
by limitation is equally without merit. 27.
In Jagdish and Ors. v. Har Sarup
the Court noticed that "the provisions further reveals that howsoever long
delayed the request for amendment may be, and even if the claim put forward
is hopelessly barred by limitation, it is the bounden duty of the Court to allow
amendment," relating to the provision to Sub-section (2) of Section
40 of the Specific Relief Act.
Also check: M/s.Hi.Sheet Industries v/s Litelon Limited & Others Sec.41
Injunction when 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;
- to restrain any person from instituting or prosecuting any proceeding in a court
not sub-ordinate to that from which the injunction is sought;
- to restrain any person from applying to any legislative body;
- to restrain any person from instituting or prosecuting any proceeding in
a criminal matter;
- 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;
- to prevent a continuing breach in which the plaintiff has acquiesced;
- when equally efficacious relief can certainly be obtained by any other
usual mode of proceeding except in case of breach of trust;
1 [(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 be the assistance of the court; (j) when the plaintiff has no personal interest in the matter.
- when the conduct of the plaintiff or his agents has been such as to
disentitle him to the assistance of the court;
- when the plaintiff has no personal interest in the matter Clause(a)
injunction is sought & no need for further activity, unless such restraint
is necessary to prevent a multiplicity of proceedings;
Writ petition by Churches Committee running numerous educational institutions
seeking instruction to halt the prosecution of a judicial
procedure. Permission of the appointment of a Correspondent-Court by educational authorities passing an order on alleged consent by parties on the Court's recommendation
to all members a warning to warring parties that unless
they settle their differences amicably, the court would intervene. If
a member commits perjury, the organisation may be forced to take action against
If a consent order or decree is issued that is contrary to public policy
other law, it will be revoked. constitutional provisions, and if the parties' valued rights are
affected as a result of them taken away, The same cannot be sustained:
consent orders are not consent orders in the eyes of the law and would
be null and void: A.I.R. 2001 Andhra Pradesh 319 Board of Education of Samavesham of Telugu Baptized Churches v. State of Andhra Pradesh (D.B.)
Clause (b), (d)
The court proceeding is not subordinate to the court that issues the injunction:
S. 41 also applies in circumstances where a temporary injunction is sought under C.P.Code 0.39, R. 1: A.I.R. 1993 Ori. 86, Bidulata Das v. Braja Behari Palit.
When a cheque was dishonoured, the plaintiff filed a suit seeking
declaratory relief as well as an interlocutory motion seeking an order of injunction prohibiting
the defendant from bringing any action under Section 138 of the Negotiable
Instruments Act, 1881.
The lower Court where the civil matter was underway and the criminal Court where
the defendant may choose to file the criminal complaint were not in the same
hierarchy of Courts; the criminal Court is not subordinate to the
civil Court, the court decided.
As a result, the situation in question came under both Cl. (b) and Cl. (d) of S.
41. As a result, the order of injunction could not have been issued by the
lower court: Aristo Printers Pvt. Ltd. v. Purbanchal Erade Centre A.I.R. 1992
Gau. 81; Atul Kumar Singh v. Jalveen Rosha A.I.R. 2000 Del. 58.
Injunction to prevent contract violation:
If it is discovered that a contract that is determinable by its
very nature cannot be enforced, the contract will not only be void but will also be
No injunction could be obtained in such a case, and this is a legal
requirement. However, there is an exception, as stated in S. 42, if a contract
is terminated. consists of an affirmative agreement to perform a certain act, as
well as a negative agreement to refrain from doing so. commitment, express or
inferred, not to undertake a certain conduct, and the conditions that the Court
considers relevant is unable to compel precise fulfilment of the positive
agreement, the affirmative agreement shall not be enforced preventing it from
issuing an injunction requiring the performance of the negative agreement: Stroh
Brewery Company A.I.R. v. Rajasthan Breweries Ltd.
Clause (h1) Alternative remedy:
An injunction, which is a discretionary equitable relief, cannot be granted when an equally efficacious relief is obtainable in any other usual mode or proceeding except in cases
of breach of trust.
Where the complainant claimed the impugned land to be his and the accused was attempting to raise construction, claiming the same to have been
procured, the court held that in such a dispute, the plaintiff should
have sought a declaration of his title and consequential injunction, if he was
in possession at all; filing a simple suit for perpetual injunction was a
of plaintiff to avoid the normal course, which barred the Court's assistance (D.B.).
Identification of Property:
In a public record of settlement or survey,
the property might be identified by its borders or by its number. It can be described even by a simple map showing the location of the contested immovable property: A.I.R. 2015 S.C. 1236
Zarif Ahmad v. Farooq
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
The purpose of S. 42 is to establish a permanent bulwark against adverse attacks on
a plaintiff's title, when a cloud has been placed upon it, and to
prevent additional litigation by eliminating the present cause of contention.
However, the threat to his right must be actual, not imagined: L.I.C. Corporation of India
v. Iqbal Kaur
A.I.R. 1984J.&K. 1.
In a declaratory litigation, the plaintiff must rely on his
own right and title, and if such right or title is denied or harmed by the other
party, a declaratory claim can be filed. The plaintiff cannot demand a statement
in the negative form as to the defendant's status
without demonstrating his own entitlement. A claim for declaration would not be
maintainable unless the plaintiff establishes in the plaint that the defendant's
condition is likely to harm his civil rights or the defendant has denied his
civil rights: Mool Raj v. Atma Ram
A.I.R. 1986 J.&K. 24.
Injunction to prevent negative agreement:
If an injunction to enforce a negative covenant would require the employee to be idle or serve the employer, it would be
denied: Gujarat Bottling Co. Ltd. v. Coca Cola Company
A.I.R. 1995 S.C.2372.
- The Specific Relief Act, 1963
- The Code of Civil Procedure, 1908
- Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC 7
- Chinnappa vs Srinivasa Reddy on 3 November, 1995, Equivalent citations:
ILR 1996 KAR 932
- kailash Chand vs Bajrang Lal, A.I.R. 1997 Raj. 205 10 Balakrishna
Dattatraya Galande v. Balakrishna Rambharose Gupta and Another,Civil Appeal
- Raman Hosiery Factory V. J.K. Synthetics Ltd. A.I.R. 1974 DEL.207 12
K.P.M. Aboobucker v. K. Kunhamoo, AIR 1958 Mad 287
- Gramophone Company of India V. Shanti Films Corporations A.I.R. 1997 CAL
- ibid, pg11-2 15 C. Kunhammad v. C.H. Ahamad Haji AIR 2001 Ker 101
- Hammad Ahmed Vs. Abdul Majeed & Ors.2019 SC 547 17 Indian Agro &
Recycled Paper Mills Association Versus Tafcon Projects (India) Pvt. Ltd. (Tafcon)
& Others Lnind 2020 DEL 2579
- Jagdish and Ors. v. Har Sarup 1978 Delhi 233
- M/s.Hi.Sheet Industries v/s Litelon Limited & Others, LNIND 2006 MAD
2861 20 ibid, pg11-2, pg11-2
- Board of Education of Samavesham of Telugu Baptized Churches v. State of
Andhra Pradesh (D.B.).A.I.R. 2001 AP 319 22 Bidulata Das v. Braja Behari
Palit, A.I.R. 1993 Ori. 86
- Aristo Printers Pvt. Ltd. v. Purbanchal Erade Centre A.I.R. 1992 Gau. 81
24 Atul Kumar Singh v. Jalveen Rosha A.I.R. 2000 Del. 58 25 Stroh Brewery
Company A.I.R. v. Rajasthan Breweries Ltd. A.I.R.2000 Del. 450 (D.B.)
- Zarif Ahmad v. FarooqA.I.R. 2015 S.C. 1236 27 ibid, pg11-2, pg11-2 28
L.I.C. Corporation of India v. Iqbal Kaur A.I.R. 1984J.&K. 1
- Mool Raj v. Atma Ram A.I.R. 1986 J.&K. 24. 30 Gujarat Bottling Co. Ltd.
v. Coca Cola Company A.I.R. 1995 S.C.2372