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CS Deepak Pratap Singh

CS Deepak Pratap SinghSpecific Relief Act, 1963 is an act to provide specific Relief in deserving cases. It extend whole of India except in the state of Jammu & Kashmir. The act came into force on 1st March, 1964.

In Civil Law, legal remedies are for enforcing primary rights or for enforcing secondary rights. When there is a breach of contract, if the court orders specific performance in favor of innocent party, this is in nature of enforcement of a primary rights. If court orders for payment of compensation against damage this is enforcement of secondary rights of parties. The Specific Relief Act, 1963 is to protect and enforce primary rights of parties.

Following types of Injunctions are granted by the Court.

1. Temporary and Permanent Injunctions ( Sections 36 & 37)

2. Perpetual Injunctions ( Section 38)

3. Mandatory Injunctions ( section 39)

4. Damages in lieu of or in addition to Injection( Section 40)

5. Injunction to perform a negative covenant( section 42)

We shall now discuss all injunctions respectively;

Temporary and Permanent Injunction;

An injunction is an order of competent court which-

1. Which forbids commission of a threatened wrong, or

2. Forbids the commission of a wrong already began, or

3. Commands the restoration of status quo

Clauses 1 and 2 deal with preventive relief, whereas clause 3 refer to mandatory injunction, which seeks to rectify the defendants’ wrongful conduct.

The Preventive Injunction wills b granted on sole discretion of the court, which will be based and guided by sound and reasonable judicial principals.

Temporary Injunctions or Interim Injunctions  are those which remain in force until specified time or till date of next hearing of the case, or until further orders of the court. 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 Specific Relief Act, 1963.

Permanent Injunctions on the other hand, are contained in a decree passed by the court after fully hearing the case. Such an injunction perpetually prohibits the defendants from asserting a right or committing an act which would contrary to the rights of plaintiff. It is based on end suit. It remains in force for all time to come.

Perpetual Injunctions may be granted, at the discretion of the court, to prevent the breach of an obligation existing in the plaintiff’s favor, whether expressly or by implication.

Whenever the defendant invades or even threatens to invade the plaintiff’s right to property or the enjoyment thereof, the court may grant a Perpetual Injunction to the plaintiff in the following four cases;

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

2. Where there is no standard for ascertaining the actual damage caused, or likely to be caused, to the plaintiff, by invasion of his rights.

3. Where the invasion of the plaintiff’s right is such that compensation in money would not afford adequate relief.

4. Where injunction is necessary to prevent multiplicity of judicial proceedings.

If the payment of damages will not adequately compensate the plaintiff, the court will grant an injunction, unless there is special reason against it. The court may refuse injunction and award damage in the following cases, if the injury is (i) small and (ii) capable of being estimated in money and being adequately compensated by a sum of money and grant of injunction would be oppressive. An injunction may also be refused on the ground of the plaintiff’s acquiescence and delay. Similarly, injunctions should not be granted where they inflict more injury on the person sought to be injected than advantage on the applicant as decided in the case of Tituram V. Cohen.

Perpetual Injunction when refused (section 41) in following cases perpetual injunction cannot be granted;

1. 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 multiplicity of judicial cases.

2. To restraint any person from insulting or prosecuting any proceeding in a court not subordinate to that from which injunction is sought.

3. To restraint any person from applying any legislative body.

4. To restraint any person from instituting or persecuting any proceeding in a criminal matter.

5. To prevent breach of a contract, the performance of which would not specifically enforced.

6. To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance.

7. To prevent a continuing breach in which the plaintiff acquiesced.

8. When equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust.

9. When conduct of plaintiff or his agent is such to disentitle him to the assistance of the court.

10. When the plaintiff has not personal interest in the matter.

The provisions of Section 41 is not exhaustive a refusal of injunction will depend on the discretion of the court.

Mandatory Injunctions (section 39) at times it so happens that, in order to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing. In such case the court may in its discretion , grant an injunction (i) to prevent such brech , and also (ii) to compel the performance of the requisite acts.

This relief is applicable to the breach of any obligation, whether arising out of a contract or tort. It may be perpetual or temporary, though in rare cases that of temporary injunction of this nature will be issued.

An injunction is, in its nature, prohibitory. The defendant is first called up to restore the place to the position in which it was before the act was done, and then he is restrained , when he has so restored it, from doing anything in respect of it which would be breach of obligation on his part. The object in every case is to compel the defendant to restore things to their former condition. This type of injunction will be granted to prevent more injury and damages to the plaintiff.

Lane V New gate, a lased his land to B for erecting a mills and bound himself to supply water thereto from canals and reservoirs on his own land. An impeded the enjoyment of water by B, by keeping works out of repair by the use of locks, and by removing the stop-gate. B asked for an injunction which was granted. In this case an affirmative covenants were enforced.

Damages in lieu of, or in addition to, injunction ( section 40) When a plaintiff sues for Perpetual Injunction or a Mandatory Injunction , he may also claim damages, either in addition to , or in substitution for , theinjuction, and the court, if it thinks fit , award such damages.

An injunction or damage are not alternate remedies but can be granted at the discretion of the court.

The damages cannot be granted unless the plaintiff has claimed damages in the plaint or in proceedings he will be allowed to amend the plaint by incorporating clause for damages.

Injunction to perform a negative covenant (section 42) some time in a given contract, there may be affirmative agreement to do certain act, coupled with a Negative Covenant, express or implied, not to do a certain other act. Now the fact that the court is unable to compel specific performance of the affirmative part does not mean that it cannot grant an injunction in respect of the negative part. It is necessary in this case that the plaintiff has performed its part mentioned in the contract.

Lumley V Wagner , A a singer , agreed that she would sigh for 12 months at B’s theatre and that she would not sing elsewhere in the public during that period. Here B cannot obtained specific performance of the first part of the contract (i.e. to sing at his theatre), but he is entitled to an injunction, restraining A from singing at other public places during that period. In this case though there is one contract but contain two parts one is positive and other is negative. The two parts are independent contracts. In this case court cannot debar itself to give injunction in case of negative covenant.

The Supreme Court has also observed that the jurisdiction to grant an injunction under the Act is discretionary and must be exercised according to sound principals of law, and ex debito justito. The plaintiff cannot claim this relief as a matter of right. Before refusing or granting the injunction, the court must weigh the pros and cons in each case, consider the facts and circumstances in their proper perspectives, and then exercise its discretion in the best interest of justice.

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A Qualified Company Secretary, LLB , AIII , Bsc( Maths) BHU, Certification in Insurance Risk Management ( ICSI-III) have completed Limited Insolvency Examination and having more than 20 years of experience in the field of Secretarial Practice, Project Finance, Direct Taxes ,GST, Accounts & F View Full Profile

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April 2024