TEMPORARY & PERPETUAL IINJUNCTIONS::::::CASES IN WHICH INJUNCTION CANNOT BE GRANTED

PRELIMINARY NOTE:

An injunction is a specific order of the court forbidding the commission of a wrong threatened or the continuance of a wrongful course of action already begun, or in some cases, when it is called mandatory injunction, commanding active restitution of the former state of things.

 

DEFINITION OF INJUNCTION:

In Barney’s Encyclopedia of Laws of England, it is defined as:

“A judicial process by which one, who has invaded or is threatening to invade the rights (legal or equitable) of another, is restrained from continuing or commencing such wrongful act.”

Lord Halsbury is most explicit when he says:

“An injunction is a judicial process whereby a party is ordered:
i. to refrain from doing, or
ii. to do a particular act or thing.
In former case it is called restrictive injunction, and in the latter case it is called mandatory injunction.”

As observed by Pomeroy:

“The remedy of injunctions was undoubtedly borrowed by Chancellors from the interdicts of the Roman Law.”

 

WHAT IS PREVENTIVE RELIEF? (Section 6)

“Preventive relief means that relief granted by preventing a party from doing that which he is under an obligation not to do.”

 

HOW PREVENTIVE RELIEF IS GRANTED (Section 52):

Preventive relief is granted at the discretion of the Court by injunction, either:

• Temporary, or

• Perpetual

 

KINDS OF INJUNCTIONS:

1. Temporary Injunctions

2. Perpetual/Permanent Injunctions

3. Mandatory Injunctions

 

TEMPORARY INJUNCTIONS:

1. What is Temporary Injunction? (Section 52):

“Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court. They may be granted at any period of a suit, and are regulated by the Code of Civil Procedure 1908 (V of 1908).”

Thus, temporary injunctions are regulated under the provisions of Rules 1–5, Order 39 of the Code of Civil Procedure, 1908.
A temporary injunction is granted for a specified time or until the further order of the court. It can be granted at any stage of the suit.

While exercising its discretion to grant a temporary injunction, the court ascertains:

• Whether the plaintiff has a prima facie case?

• Whether the balance of inconvenience is in favour of the plaintiff?

• Whether irreparable injury would be suffered by the plaintiff if the temporary injunction is not granted?

 

2. Object of Temporary Injunction:

The underlying object of granting a temporary injunction is to maintain and preserve the status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit.

 

3. Circumstances in Which Temporary Injunction Can Be Granted: Under Order 39, Rule 1 and 2:

The cases in which, and the procedure by which, a temporary injunction may be granted are prescribed in Order 39.

I. Rule 1 of Order 39:

Provides that the court may grant temporary injunctions where it is proved by affidavit or otherwise:

a) That the property in suit is in danger of being wasted, damaged, or alienated; or
b) That the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors.

II. Rule 2 of Order 39:

Provides that the court may grant a temporary injunction to restrain the defendant from committing a breach of contract or other injury of any kind.

 

PERPETUAL INJUNCTIONS: (Section 52)

“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, or from the commission of an act, which would be contrary to the rights of the plaintiff.”

A permanent or perpetual injunction is granted for perpetuity or forever.
It is granted at the hearing and upon the merits of the suit.
A permanent injunction merges into the decree when issued by the court.

The question of granting a permanent injunction arises only after the plaintiff first establishes his right.

 

PERPETUAL INJUNCTIONS WHEN GRANTED: (SEC: 54)

1. TO PREVENT THE BREACH OF AN OBLIGATION: (Sub-Section 1)
   Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.

2. WHEN OBLIGATION ARISES FROM CONTRACT: (SUB-SECTION 2)
   “When such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II (specific performance of contract) of the Act.”

Although an obligation may arise in various ways yet this sub-section is concerned only with obligation arising from contracts, as the word “contract” is defined in the Contract Act 1872, viz., an agreement enforceable by law.
This sub-section enacts that in order to determine, whether it will or will not grant a perpetual injunction, the court shall be guided by the rules and provisions contained in Chapter II. This means that unless the case is one in which the court will exercise its discretion to decree Specific Performance, it will not grant a perpetual injunction.

 

WHEN DEFEDNANT INVADES OR THREATENS TO INVADE THE PLAINTIFF RIGHT: (Sub-Section 3)

When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely):-

• (a) Where the defendant is trustee of the property for the plaintiff;
• (b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
• (c) Where the invasion is such that pecuniary compensation would not afford adequate relief;
• (d) Where it is probable that pecuniary compensation cannot be got for the invasion;
• (e) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Explanation - For the purpose of this section a trademark is property.

Under this section to justify granting of injunction, there must be an invasion or threatened invasion of the plaintiff’s right to or enjoyment of property. The words ‘invades’ indicated the breach of same obligation of duty, recognized by law, on the part to the defendant.

DISCRETIONARY POWER:

The jurisdiction to grant perpetual injunction is discretionary. The judge must take into consideration, and give weight to each circumstance in the case in accordance with its actual value, and come to the decision in accordance with the legal and equitable rules governing the rights of the parties. Thus he may have regard to the balance of convenience, hardship, the conduct of the parties and all equities.
Where the plaintiff does not come with clean hands and has concealed the relevant paper from the court, the injunctions should be refused.

In order to entitle a litigant to perpetual injunction he must established –

• i. That the injunction is required to prevent the breach of an obligation;
• ii. That there is an infringement of a legal right;
• iii. That there is a real and substantial likelihood that the wrongful act complained of or apprehended, will be repeated unless restrained by the court and that he has complied with all legal formalities and there is nothing debar him from obtaining the relief.

 

CASES IN WHICH INJUNCTION CANNOT BE GRANTED: (SECTION 56)
An injunction cannot be granted:-

• (a) To stay 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;
• (b) To stay proceedings in a Court not subordinate to that from which the injunction is sought;
• (c) To restraint persons from applying to any legislative body;
• (d) To interfere with the public duties of any department of the Government, or with the sovereign acts of Foreign Government;
• (e) To stay proceedings in any criminal matter;
• (f) To prevent the breach of a contract the performance of which would not be specifically enforced;
• (g) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
• (h) To prevent a continuing breach in which the applicant has acquiesced;
• (i) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
• (j) When the conduct of the applicant on his agents has been such as to disentitle him to the assistance of the Court;
• (k) Where the applicant has no personal interest in the matter

 

MANDATORY INJUNCTION: (SEC 55)
“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”

 

INJUNCTION TO PERFORM NEGATIVE AGREEMENT: (SEC: 57)
Notwithstanding section 56, clause (f), 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 negative agreement: provided that the applicant has not failed to perform the contract so far as it is binding on him.

CONCLUSION:

Injunctions are one of the most important equitable remedies available under the law. They serve to prevent injustice by restraining wrongful acts or by compelling the performance of certain duties. The grant of an injunction, whether temporary, perpetual, or mandatory, rests within the sound discretion of the court and depends upon the facts and equities of each case. While the object of temporary injunctions is to maintain the status quo during the pendency of litigation, perpetual injunctions permanently protect established rights from violation. Mandatory injunctions, on the other hand, ensure that justice is done by compelling a party to act in a particular way. Thus, the law of injunctions plays a vital role in safeguarding legal rights and preventing irreparable harm.