Preventive Relief

Legal provision

• Section 36: preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
• Section 37: temporary injunctions continue until a specific time or further order, may be granted at any stage, and are regulated by the Code of Civil Procedure, 1908. A perpetual injunction can be granted only by a decree made at the hearing and upon the merits of the suit.
• Sections 38 to 42: when a perpetual injunction is granted, mandatory injunctions, damages, when an injunction is refused, and injunctions to enforce a negative agreement.

Meaning and definition

Preventive relief is relief that prevents a wrong or stops its continuance. The Act has one tool for it, the injunction, which is a court order that restrains a person from an act or compels him to do one. The Act places it in Part III, in Chapter VII (sections 36 and 37) and Chapter VIII (sections 38 to 42).

The court acts on the person ordered, not on the property (see equity acts in personam). It asks a series of questions. The decision tree shows the main ones.

Detailed explanation

1. Why the law gives preventive relief

Damages repair a wrong afterwards. Specific performance makes a promise good. Neither helps against a wrong about to happen, such as the demolition of a shared wall or the leak of a trade secret. Preventive relief freezes the position, either for the time of the suit or for good.

2. Section 36: always discretionary

The court is never bound to grant an injunction. It looks at the plaintiff's right, the harm each side may suffer, and the plaintiff's own conduct. The maxims of equity guide it. A plaintiff who has acted unfairly may be refused (see he who comes to equity must come with clean hands). A plaintiff who waits too long may be refused (see delay defeats equity).

3. Section 37: two forms of injunction

A temporary injunction lasts until a stated time or further order and may be granted at any stage. A perpetual injunction comes only with the decree at the hearing, on the merits. The Act does not use the words "prohibitory" or "interim", though the courts do.

4. The tests for a temporary injunction

The Supreme Court laid down three tests in Dalpat Kumar v. Prahlad Singh (1992). The plaintiff must show a prima facie case, a balance of convenience in his favour, and irreparable injury if the order is refused. A prima facie case alone does not entitle him to the order. The English House of Lords took a lighter view in American Cyanamid v. Ethicon (1975). It asked only whether there is a serious question to be tried.

5. Section 38: perpetual injunctions

A perpetual injunction may be granted to prevent the breach of an obligation existing in the plaintiff's favour, express or implied. When the obligation comes from a contract, the court follows Chapter II on specific performance. Where the defendant invades or threatens to invade the plaintiff's right to property, the court may grant it in four cases: a trustee, no standard to measure damage, damages not adequate, and prevention of many suits.

6. Sections 39 and 40

Section 39 allows a mandatory injunction, which also compels acts the court can enforce. Section 40 allows damages with or instead of an injunction. The claim must be in the plaint, but the court must allow an amendment. If the suit is dismissed, a later suit for damages for that breach is barred.

7. Section 41: when an injunction is refused

The eleven bars (ten original clauses and clause (ha) of 2018) fall into groups.

• Court proceedings and legislatures (a to d): pending proceedings, proceedings in a court not lower in rank, applications to a legislative body, and criminal proceedings.
• Contract (e): a contract that could not be specifically enforced. Section 42 is the exception for a negative agreement.
• Nuisance (f): an act not reasonably clear to be a nuisance.
• Conduct and interest (g, i, j): acquiescence, the plaintiff's disentitling conduct, and no personal interest.
• Another remedy (h): equally efficacious relief certainly available in another usual way, except in a breach of trust.
• Infrastructure (ha): inserted in 2018, where it would impede or delay an infrastructure project.

8. Quia timet

Because the Act speaks of invasion that is threatened, a court may act before harm occurs. Lawyers call this a quia timet action (because he fears). The threat must be real and not imaginary.

9. Negative agreement: section 42

Where a contract has an affirmative promise and a negative promise, the court may enforce the negative promise by injunction even if it cannot enforce the affirmative one, provided the plaintiff has performed his own part.

The scheme of Part III at a glance

Don't confuse: preventive relief and other remedies

Students sometimes call an injunction "specific performance of a negative promise". The ideas are related but they are not the same.

Common mistakes

• Writing that an injunction is granted as of right. It is always discretionary (section 36).
• Treating a temporary injunction as a final decision.
• Forgetting that the Act protects individual civil rights only (section 4).
• Ignoring the bars in section 41, or the 2018 clause (ha).
• Applying the English "serious question" test as Indian law. Indian courts follow Dalpat Kumar.

Apply it

Leading case laws

• Dalpat Kumar v. Prahlad Singh (1992)

  Facts. An application for a temporary injunction under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure reached the Supreme Court. It was decided on 16 December 1991. (1992) 1 SCC 719.

  Principle. A prima facie case is not enough. The court must also be satisfied that refusal would cause irreparable injury and that the balance of convenience favours the plaintiff.

  Why it matters. It is the standard Indian authority for the three tests.

• Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995)

  Facts. A bottler bound itself not to deal in other brands during its agreement with Coca Cola. Its shares passed to Pepsi-linked concerns and the High Court granted an interim injunction.

  Principle. The Supreme Court upheld the injunction. A covenant that operates only during the contract is not a restraint of trade under section 27.

  Why it matters. It shows preventive relief enforcing a negative covenant (sections 41(e) and 42).

• American Cyanamid Co. v. Ethicon Ltd (1975)

  Facts. A patent holder sought an interim injunction to stop a rival from launching a surgical suture before trial.

  Principle. The court asks whether there is a serious question to be tried, then looks at the adequacy of damages and the balance of convenience.

  Why it matters. It is the English approach, a contrast with the Indian tests.

How to write this answer in the exam

Key points to remember

• Preventive relief prevents a wrong. In the Act it comes only by injunction (Part III, sections 36 to 42).
• It is always discretionary and guided by equity: clean hands, no delay.
• Temporary injunctions: any stage, three tests. Perpetual injunctions: by decree on the merits.
• Section 41 lists eleven bars, including clause (ha) of 2018. Section 42 is the exception for a negative agreement.
• Indian courts follow the three tests of Dalpat Kumar, not the English serious-question test.

Quick self-test

Related topics

• Injunctions-Generally
• Temporary and Perpetual injunctions
• Mandatory&Prohibitory injunctions
• Injunctions to perform negative agreement
• Special provision for contracts relating to infrastructure projects