Injunctions-Generally

In one minute

An injunction is a court order that tells a person to stop doing something, or to do something. It prevents a wrong, so it is called preventive relief. The court grants it at its discretion, not as of right.

The Specific Relief Act, 1963 recognises temporary injunctions, which last for a time, and perpetual injunctions, which come with the final decree. In exams, you must be able to classify injunctions, state the grounds for granting them, and list when they are refused.

Exam focus

Frequency: Occasionally asked
Usually asked as: Long answer (10 to 15 marks)

Legal provision

Section 36: preventive relief is granted at the court's discretion by injunction, temporary or perpetual.
Section 37: temporary injunctions last until a set time or further order and are regulated by the Code of Civil Procedure, 1908. A perpetual injunction comes only by decree at the hearing, on the merits.
Sections 38 and 39: perpetual injunctions, and mandatory injunctions that compel acts the court can enforce.
Sections 40 to 42: damages with or instead of an injunction, the cases where an injunction is refused, and injunctions to enforce a negative agreement.

Meaning and definition

An injunction is a court order that restrains a person from an act, or compels a person to do one. Damages repair a wrong that has happened. An injunction stops a wrong from happening or continuing.

It is equitable relief and acts on the person ordered (see equity acts in personam). Even where the plaintiff proves a right, the court may refuse it if section 41 or the plaintiff's conduct stands in the way.

Kinds of injunction under the Specific Relief Act, 1963How to read this: start at the top box and follow the lines down. Green boxes are the final kinds.

Preventive relief by injunction section 36
- Temporary injunction section 37(1)Until a set time or further order. Any stage of the suit. Governed by the Code of Civil Procedure.
- Perpetual injunction sections 37(2), 38Only by decree at the hearing, on the merits.
  - Ordinary perpetual injunction (prohibitory) section 38Stops an act. The Act does not use the word "prohibitory".
  - Mandatory injunction section 39Also compels acts that the court can enforce.

Detailed explanation

1. Temporary injunction (section 37(1))

A temporary (also called interim or interlocutory) injunction protects the plaintiff while the suit is pending. The court may grant it at any stage. Order XXXIX of the Code of Civil Procedure sets the procedure. Indian courts ask three questions.

Has the plaintiff a prima facie case (a case that looks good on the first view)?
Does the balance of convenience favour the plaintiff? This weighs the harm to each side.
Will the plaintiff suffer irreparable injury (harm that money cannot repair) if the order is refused?

A prima facie case alone is not enough. The Supreme Court applied these three tests in Gujarat Bottling Co. Ltd. v. Coca Cola Co.. The House of Lords in American Cyanamid Co. v. Ethicon Ltd asked only whether there is a serious question to be tried. That is the English approach.

Example. A bottler in Ahmedabad promised, during a franchise, to sell no rival brand. It then came under the control of a rival company. The court enforced the promise by an interim injunction. This is the position in Gujarat Bottling.

2. Perpetual injunction (sections 37(2) and 38)

A perpetual injunction ends the suit. It follows a full hearing on the merits. Section 38 allows it in two settings.

To prevent breach of an obligation (section 38(1)). The obligation may be express or implied. If it arises from a contract, the court follows Chapter II of the Act.
Invasion of property rights (section 38(3)). The defendant invades, or threatens to invade, the plaintiff's right to or enjoyment of property, and one of four cases applies:
- (a) the defendant is a trustee of the property for the plaintiff;
- (b) there is no standard for ascertaining the actual damage;
- (c) money compensation would not give adequate relief;
- (d) an injunction is needed to prevent a multiplicity of judicial proceedings.

The word "threatens" in section 38(3) allows relief before the harm happens. Latin calls it a quia timet action (because he fears).

Example. A mill owner in Guntur finds a neighbour dumping waste on the mill's yard every week. After trial, the court orders the neighbour never to dump waste there again. Money damages could not stop a continuing wrong, so section 38(3)(c) applies.

3. Mandatory injunction (section 39)

A mandatory injunction orders a person to do something, where that is necessary to prevent a breach and the court can enforce it. It also restrains the breach. The ordinary kind, a prohibitory injunction, only stops an act.

Example. A builder in Hyderabad raises an unauthorised wall across a shared passage. The court orders him to remove the wall (a positive act) and not to obstruct the passage again.

4. Damages with or instead of an injunction (section 40)

The plaintiff may claim damages in addition to or in place of an injunction under section 38 or 39. The claim must be in the plaint, but the court must allow an amendment at any stage. If the suit is dismissed, the plaintiff cannot sue later for damages for that breach.

5. When an injunction cannot be granted (section 41)

Section 41 lists the cases. In summary, an injunction cannot be granted:

(a) to stop a judicial proceeding pending when the suit began, unless needed to prevent a multiplicity of proceedings;
(b) to stop a proceeding in a court not subordinate to the court asked to grant it;
(c) to stop a person from applying to a legislative body;
(d) to stop a criminal proceeding;
(e) to prevent breach of a contract that would not be specifically enforced;
(f) to prevent a nuisance, unless it is reasonably clear the act will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced (stayed silent and accepted it);
(h) where equally efficacious relief can certainly be had another usual way, except in a breach of trust;
(ha) where it would impede or delay an infrastructure project, or interfere with the continued provision of the facility or services (inserted in 2018);
(i) where the plaintiff's conduct disentitles him to the court's help;
(j) where the plaintiff has no personal interest in the matter.

Example. A landowner in Vijayawada watches his neighbour build a boundary wall for months and says nothing. When it is complete, he asks for an injunction. Clause (g) bars him because he acquiesced. Clause (i) covers a plaintiff who lacks clean hands: he who comes to equity must come with clean hands.

6. Negative agreements (section 42)

Section 41(e) bars an injunction where the contract would not be specifically enforced. Section 42 is an exception. If a contract has an affirmative promise and a negative covenant (a promise not to do something), the court may enforce the negative promise by injunction. This holds even when it cannot compel the affirmative one. The plaintiff must have performed his own part so far as the contract binds him. Gujarat Bottling Co. Ltd. v. Coca Cola Co. applied this principle.

Special rule: infrastructure projects

Section 20A bars an injunction in a suit about a contract for an infrastructure project in the Schedule, where it would impede or delay the project. Section 41(ha) says the same. Clause (ha) was inserted by Act 18 of 2018, with effect from 1 October 2018.

Don't confuse: temporary and perpetual injunctions

Students often treat "perpetual" as "never ending" and "temporary" as "short". The real difference is the stage of the suit and the basis of the order.

Point	Temporary injunction	Perpetual injunction
Section	37(1)	37(2), 38
When granted	At any stage of the suit	Only by the decree, at the hearing
Basis	Prima facie case, balance of convenience, irreparable injury	Decision on the merits of the suit
Duration	Until a specific time or further order	Final: the defendant is perpetually enjoined
Governing law	Code of Civil Procedure	Specific Relief Act, 1963

Inside the concept (temporary). Ramana sues his neighbour over a disputed boundary and asks the court to stop the neighbour from building until the suit ends. The court passes an order for that period only.

Just outside it (perpetual). After a full trial, the court finds the boundary is Ramana's. The decree forbids the neighbour from ever building on that land. The order closes the dispute.

Common mistakes

Saying an injunction is a matter of right. It is discretionary (section 36).
Treating a temporary injunction as a final decision. It does not decide the suit.
Applying the English "serious question to be tried" test as Indian law. Indian courts use the three-fold test.
Forgetting section 41. List the bars when the question asks about refusal.
Omitting section 40. Damages can come with an injunction or instead of it.

Apply it

Problem

Ramana owns a godown in Kakinada. His neighbour Suresh digs a deep trench beside its wall, and engineers say the wall may collapse within weeks. Ramana sues and asks for an order to stop the digging at once. What should the court consider?

Issue. Can the court stop Suresh now, and grant a final order later?

Rule. A temporary injunction may be granted at any stage (section 37(1)) on a prima facie case, balance of convenience and irreparable injury. A perpetual injunction may follow under section 38(3), for example where money would not give adequate relief. Section 41 lists the bars.

Application. The trench and the engineers' warning show a prima facie case. The goods could be lost, and money cannot rebuild a collapsed wall in time. Suresh loses only a short delay. No clause of section 41 applies.

Conclusion. The court should grant a temporary injunction now. It may grant a perpetual one after trial, and Ramana may claim damages under section 40.

Leading case laws

American Cyanamid Co. v. Ethicon Ltd (1975)
Facts. Cyanamid held a patent on absorbable surgical sutures. Ethicon planned to launch a rival suture called XLG, and Cyanamid sought an interim injunction.

Principle. The court need only be satisfied that there is a serious question to be tried. It then weighs the adequacy of damages and the balance of convenience.

Why it matters. It is the English interim-injunction test, a useful contrast with the Indian three-fold test.
Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995)
Facts. A bottler agreed not to deal in any other brand during its agreement with Coca Cola. Pepsi-linked concerns bought its shares, and the High Court granted an interim injunction.

Principle. The Supreme Court upheld it. A negative covenant that operates only during the agreement is not a restraint of trade under section 27. The three tests guide an interlocutory injunction.

Why it matters. It shows temporary injunctions and section 42 at work.
Anathula Sudhakar v. P. Buchi Reddy (2008)
Facts. Buyers of vacant sites in Warangal sued only for a permanent injunction against a rival buyer from the same family.

Principle. A bare suit for injunction lies only where the plaintiff is in lawful possession and there is no real cloud on title. Where title is disputed, the plaintiff must sue for declaration as well.

Why it matters. It tells you when an injunction suit alone is the right remedy.
Dalpat Kumar v. Prahlad Singh (1992) 1 SCC 719
Facts. An application for a temporary injunction under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure reached the Supreme Court.

Principle. A prima facie case is not enough. The court must also be satisfied that refusal would cause irreparable injury and that there is no other remedy but an injunction.

Why it matters. It is the standard Indian authority for the three-fold test.

How to write this answer in the exam

5-mark answer

Define injunction and say it is preventive relief (section 36).
Name the two kinds: temporary (section 37(1)) and perpetual (sections 37(2), 38).
Add mandatory injunction (section 39) in one line.
Give the three tests for a temporary injunction.
Close with one case: Gujarat Bottling or Dalpat Kumar.

10-mark and 15-mark answers (for example, "Discuss the law relating to injunctions in India")

Meaning, nature and discretion (section 36).
Classification with the tree diagram.
Temporary injunction and the three tests, with Dalpat Kumar and Gujarat Bottling.
Perpetual injunction: section 38(1) and the four cases of section 38(3).
Mandatory injunction (section 39) and damages (section 40).
Refusals (section 41, with clause (ha) of 2018) and section 42 in one line.
Conclusion: the remedy is discretionary and equitable.

Key points to remember

Injunction = preventive relief, granted at the court's discretion (section 36).
Temporary: any stage, until a time or further order (section 37(1)). Perpetual: only by decree on the merits (section 37(2)).
Three tests for a temporary injunction: prima facie case, balance of convenience, irreparable injury.
Section 38(3) lists four cases for a perpetual injunction on property rights.
Section 39: mandatory injunction. Section 40: damages. Section 41: refusals, with clause (ha) added in 2018. Section 42: negative agreements.

Quick self-test

1. What are the two kinds of injunction in section 37?

Temporary (until a specific time or further order, any stage) and perpetual (by decree on the merits).

2. What three things must a plaintiff show for a temporary injunction?

A prima facie case, a balance of convenience in his favour, and irreparable injury if the order is refused.

3. Which section lists the cases where an injunction cannot be granted?

Section 41 of the Specific Relief Act, 1963.