Analysis of injunction under special relief act, 1963

ANALYSIS OF INJUNCTION UNDER SPECIAL RELIEF ACT, 1963

Author: Sankalpita Pal, Symbiosis Law School, Pune

Introduction

An injunction is an equitable remedy given by courts of justice that requires a party to do, or to refrain from doing, certain acts. A failure to comply with injunction results in either criminal or civil penalties in the form of payment of damages or acceptance of sanctions. It is a remedy in the form of a Court order to direct the wrongdoer who is either prohibited from doing or made to continue to do a particular act (prohibitory injunction. Sections 36 to 42 of the Specific Relief Act, 1963 deals with the grant of an injunction. It has been wholly termed as preventive relief under Section 36 which is granted at the Court’s discretion by the injunction which may be temporary or perpetual. The legislative intent behind injunctions could be understood through the historical development of this concept having its roots in Roman and English Law.

Background

The Indian law of injunction has originated from the concept of Equity under English Jurisprudence. The concept of Injunction mainly arose due to conflict between the Common Law Courts and Chancery Court with respect to reason and authority. In 1816 a conflict arose between the Lord Justice Coke and Lord Chancellor Ellesmere. A decree was obtained from Lord Coke by fraud. The Chancellor perpetually enjoined the decree-holder from proceeding to execute his judgment and this was done by issuance of an injunction. The validity of this procedure of issuing injunction was questioned on grounds of arbitrariness and thus vehemently opposed. The matter went up to the Attorney General who settled the matter in favour of Chancellor Ellesmere.[1] The jurisdiction to issue injunctions was thus affirmed as an equitable remedy. This automatically explains the fact that since the origin of the power to grant injunction is from equity, hence involves the discretion by the Courts. This will be dealt in the latter part of this article.

Types of Injunctions under SRA, 1963

An injunction is an order of competent court which-

• Forbids commission of a wrong, or the further commission of a wrong that has already begun or (Preventive relief)
• Commands to restore status quo (Mandatory Relief)

According to section 36 of the Act preventive relief is of 2 types.

Section 36. “Preventive relief how granted.—Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual”.[2]

Basic Difference between Injunction under Code of Civil Procedure, 1908 and Specific Relief Act, 1963

In our country in Criminal matters Sections, 133, 142 and 144, etc. of the Code of Criminal Procedure deal with grant of an injunction. In Civil matters, the law relating to grant of an injunction is contained in Chapter VII of Part III (Preventive Relief) of the Specific Relief Act, 1963. Interim Injunctions (Also known as temporary injunctions) are those which remain in force until a specified time or till the date of next hearing, or until further court orders. Such injunctions can be granted at any stage of the suit and are governed by Order 39 of the Code of Civil Procedure, 1908 and not by the Specific Relief Act, 1963.

1. Temporary Injunction.

It is clear according to Section 37(1) that Temporary injunctions continue until a specific 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. Section 94 (c) and (e) of CPC, 1908 contains provisions under which the Court may grant a temporary injunction or grant any other interlocutory order as may appear to the Court to be just and convenient in the interest of the case.

Inception of the concept of temporary injunction

The jurisdiction of courts regarding issuance of injunctions is not limited to the protection of equitable rights but also takes in the protection of legal rights to property from irreparable harm or from serious damage pending trial under its ambit. This power owes its genesis to the original office of the Court of Chancery[3] and has formed itself into a temporary injunction.

In Agricultural Produce Market Committee Case[4], the Apex Court has held that “a temporary injunction can be granted only if the person seeking the injunction has a concluded right, capable of being enforced by way of injunction.” In Gujarat Bottling Co. Ltd. Case[5] the Supreme Court held that the Courts of justice need to follow certain guidelines while considering any application seeking a temporary injunction. In M. Gurudas and Ors. case[6], the Supreme Court of India chalked out the three essentials for considering injunctions “the Court would pass an order thereupon having regard to prima facie case, the balance of convenience and irreparable injury.” In Seema Arshad Zaheer Case[7], the salient features of a prima facie case were indicted by the SC. The Calcutta High Court in the case of Sajli Kishku Vs. Talamoyee Kishku and Ors[8] held that “Temporary injunction cannot be granted where the suit itself is prima facie not maintainable.”

It is to be well understood that the remedy of a temporary injunction cannot be evoked for some potential future right. Similarly, it can’t be obtained to restrain a party from filing a suit.

• Permanent Injunction

On the other hand Section 37 (2) of Specific Relief Act, 1963 a perpetual injunction can only be granted by the decree made at the hearing and upon the merit of the suit.[9] 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.

When obligation arises in contractual matters, the Court seeks guidance from the provisions contained in Chapter II of the SRA, 1963 dealing with specific performance of contracts. Section 38(3) in clauses (a), (b), (c), and (d) wholly illustrates the circumstances where a perpetual injunction may be granted by the Court. These are the following four clauses of S. 38.

(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 compensation in money would not afford adequate relief;

(d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Perpetual injunctions are not provisional remedies but are always the final relief.[10] The grant of a perpetual injunction is for the purpose to advance the cause of justice.[11] It is only granted when some established right has been invaded and when the damage has occurred or must necessarily accrue from the act or omission complained of.[12] In a suit for a permanent injunction, the plaintiff has to establish his title to the property in respect of which he is claiming the injunction and the right which he wants to enforce.[13]

The difference in practices of Temporary Injunction and Perpetual Injunction

There is a clear distinction between an ‘order’ granting injunctive relief and a ‘judgment’ granting a perpetual injunction. Temporary injunctive relief is merely interlocutory action that preserves status quo whereas a perpetual injunctive remedy is treated as a final adjudication of the rights of the parties. Such final adjudication is only subject to appeal, and full protection to the rights of the party affected by the permanent injunction is secured by the right to supersede.[14] In a temporary injunction, it is preliminary to hear the merits of the case and its implementation is not completely dependent on such a hearing. A perpetual injunction may be granted after a final hearing on merits.

Temporary injunctions can be dissolved upon sufficient cause shown at any stage of the suit filed as opposed to perpetual injunctions. The effect of a final injunction is to perpetually hinder the defendant from the commission of the act enjoined. On the other hand, an interlocutory injunction prohibits the commission of a particular act during a specified time frame only mentioned in the order. An injunction generally protects the plaintiff.[15]

• Mandatory Injunction

The mandatory injunctions are defined under Section 39 of the SRA, 1963. According to this section when it is absolutely necessary to prevent the breach of an obligation and the wrongful party may be compelled to perform certain acts, in such cases, mandatory injunctions are issued by the court. This relief is applicable to any obligation and its breach thereof, whether arising out of a contract or a tort. Mandatory injunctions can be perpetual or temporary, though only in rare cases temporary injunctions issued are mandatory in nature.

The object of mandatory injunction is to compel the defendant to restore the former position of things. This type of injunction is granted to prevent further injury or damages to the plaintiff. A mandatory injunction forbids the defendant to continue the wrongful state of things that already exist at the time when the injunction is issued.[16]

Once again the Court has discretionary jurisdiction when it comes to granting this injunction. Before granting a mandatory injunction, the court must weigh all the facts and circumstances with great caution.[17] If only there is a potential threat of invasion over established rights then grant of mandatory injunction is justified in appropriate cases.[18]

Thought mandatory injunctions superficially look like prohibitory in nature, it requires performance of acts unlike prohibitive injunction. A Prohibitive Injunction forbids a wrongful act, while mandatory injunction requires performance of some act. The only similarity between both these injunctions is their purpose and effect. Both aim at the restoration of the status quo ante. However, the immediate impact of a mandatory injunction is obviously more serious than that of a prohibitory one as it requires performance of some act. This means the defendant necessarily has to cover expenses and bear trouble, which may be very considerable.[19]

Other relevant sections

Damages in lieu of, or in addition to, injunction (section 40) 

When a plaintiff sues for a Mandatory or Perpetual Injunction, he may also claim damages or sanction. These damages can be sought in two ways i.e. either in addition to or in substitution for the injunction. Once again the courts discretion kicks in to decide on the utilization of  the provision provided by SRA, 1963.

The damages cannot be granted if it’s not claimed in the plaint. In case the plaintiff doesn’t included a clause for damages in the plaint then during court proceedings he will be allowed to amend the plaint in order to incorporate the same. In cases where the payment of damages will not be an adequate compensation to the plaintiff, the court may grant an injunction, unless there is a reasonable cause against it.

Injunction when refused (Section 41)

Mandatory injunction is also bound by the provisions under Section 41 of the said Act. If the relief asked for is barred by any of the provisions of Section 41, the Court will necessarily refuse mandatory injunction. There are four such cases:

1. Acquiescence

In Punamma v. Venkata it was held that “if a person, having a right to object, acquiesces in the right violated, he is not entitled to the discretionary remedy of a mandatory injunction.”[20]

• Where the relief, if granted, would be nugatory

A case may arise where though the relief is granted its impact is nullified by certain developments that have taken place during the pendency of the suit. In such circumstances, cognizance would be taken of the said developments and the relief thereof would be refused.[21]

• Delay in seeking relief
• Triviality of damages to plaintiff

The court may also refuse injunction and award damages instead.  This scenario may take place in the following cases, if the injury is (i) small or not as significant and (ii) capable of being estimated monetarily. In such cases the unnecessary grant of injunction would be oppressive and unreasonable. In Tituram V. Cohen[22] it was held that injunctions shouldn’t be granted where it would inflict more injury on the applicant who is supposed to be benefitted by it and not the otherwise.

Injunction to perform a negative covenant (section 42)

The court can grant an injunction to prevent certain acts, which are prohibited by the contract to do. However, there is a limitation of fact that whether the plaintiff has performed his part of the contract. Naturally non performance by the plaintiff disentitles him from obtaining such an injunction. An injunction cannot also be granted to prevent the breach of contract which cannot be specifically enforced, except for enforcement of negative obligations.

Role of Judicial discretion in award of Injunctions under SRA, 1963

It is abundantly clear that grant or refusal of injunction is largely dependent on Court’s discretion. It is also established that judicial discretion substantially varies with the peculiarity of facts of each case. Even thought the grounds for refusal of Injunctions are pretty clear, the wide discretion allowed by statute in the grant of injunctions creates the real controversy. There have been attempts to statutorily dictate and control the use of discretionary powers that have been proven to be abortive and fruitless.

The legislature is also silent on how discretion should be executed. Discretion is actually a heavy responsibility and creates a duty for the court to not misuse it. Its purpose is to serve the interest of justice only.

The judge’s role in a civil trial is to first ascertain the facts, then identify the relevant rules or principles of law, and then apply the law to the facts. Judicial discretion kicks in when the judge has to weigh the technicalities of law and the correctness of facts. This discretion is a crucial factor and may skew the final verdict of the case.

The way Section 36 of the Specific relief act, 1963 is worded, it shows that the legislature itself has given wide discretionary power to the judiciary. The intent of the legislature was to create a mandate on equitable remedy and since it’s based on equity, judicial discretion becomes a characteristic of the statute. However, in practice, it’s misused and thus requires modification.

The changing socio-economic scenario along with a change in political and cultural circumstances; the judges are placed in a predicament with no express legislative provision to guide his response. The main dilemma is that civil law is not adequately equipped to face these challenges. This was the reason why the legislature allowed discretionary powers to the judges.[23]

Suggestion and Conclusion

The ambitious purpose of this article was to challenge the myth that the power of injunction is executed with wide discretion by courts and it is a well-known truth in practice that where there is discretion there id malafide use of power leading to arbitrary decisions. Therefore, there must be a system of checks and balances. A few measures could be taken for overcoming the shortcomings in the implementation of injunctive remedy in order to strengthen its mandate under the law. It is abundantly clear that this remedy is given by courts; therefore the primary role is played by judges.

The judge plays an inquisitorial role when it comes to implementing injunctions and for this reason, an umpteen number of cases are still pending in courts. Therefore, it is also suggested to judges must consider injunction cases by prioritizing the significance of the claim. The reason behind this suggestion is because the purpose of Section 42 of SRA, 1963 gets defeated due to the fact that even insignificant claims are served first and injunctions are implemented instead of being refused.

The actual progress of injunction cases is capable of being monitored. This will help in understanding whether in a particular case the grant of an injunction is causing more harm than benefitting the claimant.

When fresh injunction suits are filed, they should be examined at the very first hearing. If any amendments are suggested in the plaint of the claimant then they can be incorporated at the earliest. Suits which are not framed properly or are barred by statute or do not have a clear cause of action should be rejected.

Specific remedies under section 42 of the SRA, 1963 has a more extensive scope than Article 226 of the constitution, yet don’t help in expediting the process and therefore remain pretty redundant in value.

Temporary injunction cases should be decided at the earliest as delay in such cases will permit frivolous claims to succeed in their malafide intent. Once again non-maintainable suits claiming temporary injunctions should be rejected right away without even issuing notice to the other party. This will avoid harassment of the potential defendant.

Lastly on a general note remedy of injunction would be failing in its equitable purpose if it is allowed to be defeated by error in technicalities. The courts must advance substantial justice by rising above technical errors.

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[1] Justice R. R. K. Trivedi Judge, Allahabad High Court, Law of Injunctions, J.T.R.I. Journal –2nd Year, Issue – 4 & 5, March, 1996

[2] Section 36 of Specific Relief Act, 1963- Preventive relief how granted (Part III, Chapter VII)

[3] Selchow & Righter Co. v. Western Printing etc Co., 112 F 2d 430.

[4] Agricultural Produce Market Committee Vs. Girdharbhai Ramjibhai Chhaniyara, AIR 1997 SC 2674

[5] Gujarat Bottling Co. Ltd. Vs. Coca Cola Co., AIR 1995 SC 2372

[6] M. Gurudas and Ors. Vs. Rasaranjan and Ors, AIR 2006 SC 3275

[7] Seema Arshad Zaheer & Ors. Vs, Municipal Corporation of Greater Mumbai & Ors, (2006) 5 SCC 282

[8] Sajli Kishku Vs. Talamoyee Kishku and Ors, (2018)

[9] Stollmeyer v. Trinidad Lake Petroleum Co. (1918) AC 85.

[10] Traders Bank v. Wright, 17 Man 695.

[11] Suryanath Singh v. Khedu Singh, 1994 Supp (3) SCC 561.

[12] Krishna v. Venkatachella Mudali, 7 Mad HCR 60.

[13] Moulasab Rajasab v. Naganagouda Paravatagouda, 1998 AIHC 1927 (Kant.).

[14] Allen v. Gulf Oil Corporation, 139 SW 2d 207.

[15] Lund v. Blanshwar, 4 Hare 290.

[16] Binode Kumari v. Soundamoney, I.L.R. 16 Cal. 252.

[17] Meghu Mian v. Kishun Ram, AIR 1954 Pat 477.

[18] Lakshmi Narain v. Tara Prosunno, ILR 31 Cal 944.

[19] Smith v. Smith (1875) L.R. 20 Eq. 500 at p. 504, per Jessel, M.R.

[20] Punamma v. Venkata, AIR 1953 Mad 456.

[21] Madho Singh v. Abdul Quaiyum, AIR 1950 All 505.

[22] Tituram V. Cohen,  (1906) ILR 33 Cal 203

[23] Mac Lean, Roberto G., Judicial Discretion in the Civil Law, 43 La. L. Rev. 45 (1982-1983).