Tuesday, 31 May 2022

Concept of Injunction under Specific Relief Act, 1963

 Concept of Injunction under Specific Relief Act, 1963


By Shweta Nair


An injunction is an order of the court directing a party, precisely to do something or precisely

not to do something.

An injunction is an order of the competent court which-

 Prohibits the commission of a threatened wrong or

 Prohibits the continuation of a wrong already begun, or

 Orders the restoration of Status Quo (the former course of things)


Injunctions can be temporary or perpetual (permanent).


 Temporary Injunction or Interim Injunctions are temporary in nature. They persist in

force until a definite time or until further orders of the court whereas Perpetual or

Permanent Injunctions are confined in the decree passed by the court and is granted when

a right is instituted. The defendant is perpetually restrained from determining a right or

committing an act.

 A temporary injunction is passed by an order during pendency of suit whereas a perpetual

injunction can be bestowed only by the decree made upon finally hearing the pros of the

case.

 A temporary injunction can be provided at any phase of the suit, even ex-parte i.e.,

deprived of notice to the other party whereas perpetual injunctions are usually given only

after hearing both the sides on the pros of the matter.

 The object and effect of a temporary injunction is to conserve the status quo until the final

discarding of the case whereas the consequence of a perpetual injunction is to give effect

or to guard the plaintiff’s right. The defendant is perpetually restrained from doing an act

which would be opposing to the rights.

 Temporary Injunctions are ruled by order 39 of the Civil Procedure Code whereas

Perpetual Injunctions are ruled by sections 38 to 42 of the Specific Relief Act.


Perpetual Injunctions


A perpetual injunction may be bestowed to the plaintiff to avoid the breach of an

obligation prevailing in his favour.

When such an obligation arises from a contract, the court shall be directed by the rules

relating to specific performance of the contract.

When defendant conquers or intimidate to conquer the right of plaintiff to or enjoyment

of property, the court can confer perpetual injunction in the below mentioned cases-

1. Where the defendant is a trustee of the property for the plaintiff.

2. Where there is no standard for determining the actual damages caused or

probable to be caused;

3. Where reimbursement in money would not offer satisfactory relief.

4. Where it is essential to avert multiplicity of proceedings.


Section 41 states that,


Perpetual Injunctions cannot be bestowed in the below cases-


 To restrain from prosecuting a judicial proceeding.

 To restrain from starting proceeding in a superior court.

 To restrain from applying to a legislative body.

 To restrain from prosecuting in a criminal matter.

 To prevent the breach of a contract which cannot be specifically

imposed.

 To avert nuisance, which is unclear that it is a nuisance.

 To prevent an ongoing infringement or breach in which the

plaintiff has consented.

 Where equally efficient relief can be attained in a usual way.

 Where the demeanour of the plaintiff himself has been dubious.

 Where the plaintiff has no private interest in the matter.


Mandatory Injunctions- Section 38:


Occasionally in order to avoid the infringement of an obligation, it is vital to compel a

party to compulsorily do certain acts which the court is capable of enforcing. In such

cases, the court may, in its decision bestow an injunction-

 To avoid such breach and also

 To induce the performance of the necessary acts.


In such a suit, the plaintiff may also request for damages in addition to or as a

substitute to the injunction.

No comments:

Post a Comment

Privity of Contract

 PRIVITY OF CONTRACT By: Robin Pandey Date: 04/03/2022 The doctrine of "privity of contract" means that a contract is cont...