Sunday, 4 September 2016

Basic Concept Of Perpetual Injunction

Written by Harshal Morwale  ( twitter : @harshalmorwale)
The law of injunction in India has its origin in the Equity Jurisprudence of England from which we have inherited the present administration of law. England too in its turn borrowed it from the Roman Law wherein it was known as Interdict. The injunction as a chancery remedy developed at the time of Henry, the Vlth. The Chancellor set aside a certain bond by the plaintiff as one not binding on him. In India, the Specific Relief Act, 1963 provides a large number of remedial aspects of Law. This Act came in force in the replacement of earlier Act of 1877. Injunction is a judicial process by which one who has invaded or is threatening to invade the rights, legal or equitable, of another, is ordered to refrain from doing, or to do a particular act or thing.

What is perpetual Injunction?
As is clear from Section 37 (2) of Specific Relief Act, 1963 (hereinafter referred to as the Act), a perpetual injunction can only be granted by the decree made at the hearing and upon the merit of the suit. The defendant is thereby perpetually enjoined from the assertion of a right or from the commission of an - act which would be contrary to the right of the plaintiff. Section 38 of the Act further provides the circumstances where the perpetual injunction may be granted in favour of the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. In contractual matters when such obligation arises, the Court has to seek guidance by the rules and provisions contained in Chapter II of the Act dealing with specific performance of contracts.[1]
When a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. They are referred below briefly.
1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.[2]

When perpetual injunction would be granted?
Section 38 of the Specific Relief Act provides for the grant of a perpetual injunction to prevent the breach of an obligation existing in favour of a plaintiff whether expressly or by implication. Speaking on the scope of Section 54 of the Specific Relief Act, 1877 corresponding to Section 38 of the present Act His Lordship Justice Asutosh Mookerjee stated :
'This is fairly clear from the opinion, and controlling paragraph of the section which provides that in order to entitle a litigant to a perpetual injunction he must establish that the injunction is required to prevent a breach of an obligation. The term "obligation" is defined in S. 3 to include every duty enforceable by law, so that when a legal duty is imposed on one person in respect to another, that other is invested with the corresponding legal right. The first paragraph of the section thus establishes the broad and general rule that given the breach of an existing legal right which is vested in the applicant, the breach thereof may be restrained by injunction. This is an elementary principle, for as Lord Kingsdown said in Imperial Gas Light and Coke Co. v. Broadbent, (1859) 7 NLC 600, when a plaintiff applies for an injunction to restrain a violation of an alleged right, if the existence of the right be disputed, he must establish that right before he gets the injunction to prevent the recurrence of its violation."[3]
A permanent injunction is only granted when
(1) some established right has been invaded and
(2) when damage has accrued or must necessarily accrue from the act or omission complained of. There must have been (1) a material injury to a clear legal right; and (2) damages must not be a sufficient compensation.[4]
The position therefore is that when a plaintiff seeks the relief of injunction to protect a right by prescription claimed by him, what he does is to invite the Court to uphold his claim or right and to prevent interference with the exercise of that right.
For the grant of perpetual or permanent injunction the existence of a right in the plaintiffs and its threatened violation to the plaintiffs right would have to be found. It is, therefore, clear that every suit for a permanent injunction must involve a determination or a declaration to the above effect, or in other words, such a declaration would be necessarily involved or implied in the case of every decree for permanent injunction.
Under normal parallence, while granting perpetual injunction, the Court has to see the nature of right being invaded, whether the compensation would be an inadequate remedy for its redressal, there is no standard for ascertaining the actual damage caused by such invasion, there shall not have efficacious remedy to the plaintiff in respect of such invasion, the plaintiff would not have been guilty of delay and latches and his conduct is not unfair. Aspect of comparative hardship also assumes importance.[5]

Points to consider while granting permanent injunction
In a suit for declaration and perpetual injunction the plaintiff must first establish his legal right. After the plaintiff succeeds in establishing his legal right and its violation he is granted a permanent injunction. Permanent injunction can be granted by the decree made at the hearing and upon the merits of a suit which concludes a right for ever. Thus, unless the rights of all persons who have joint right, title and interest are brought on record no violation of right of all persons can be determined. Thus it is very simple that all joint owners must be on record. Where there is a joint right it may be necessary for all persons jointly interested to be joined as parties and if they are not joined the suit will be bad for misjoinder.[6]
In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.[7]
Refusal of Perpetual Injunction
The Court shall not grant Injunction under the following circumstances:
1.     From instituting or prosecuting civil or criminal proceeding;
2.     From applying to any legislative body;
3.     To prevent the breach of a contract the performance of which would not be specifically enforced;
4.     To prevent, on the ground of nuisance, when such act is not reasonably clear that it will be a nuisance;
5.     To prevent a continuing breach in which the plaintiff has acquiesced;
6.     When efficacious relief is available
7.     To disentitle any person to the assistance of the court;
8.     When the plaintiff has no personal interest in the matter[8]

Difference Between Sec. 34 and Sec. 37, 38 of Specific Relief Act
Mr. Justice Nain referred to the difference between Section 34 of the Specific Relief Act on the one hand and Sections 37 and 38 on the other. His Lordship held as follows :
"Coming to the form of the suit, the suit is so framed as to be a suit for an injunction. Under Section 34 of the Specific Relief Act of 1963, a person may file a suit for a declaration as to any legal character, or as to any right to any property. This is a discretionary relief. Section 34 provides that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Section 37 pertains to injunctions. Sub-section (2) provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38 prescribes when a perpetual injunction may be granted. The difference between Section 34 on the one hand and Sections 37 and 38 on the other hand is that the Court may not grant a declaration where the matter is capable of consequential relief. But there is no such restriction put on injunctions and the Court may grant an injunction as a substantive relief without any prayer for declaration, although in many cases a declaration, may be implicit in the grant of a perpetual injunction."[9]

It is settled law that no interim injunction would be issued if the final relief cannot be granted. An interim relief is granted to a person on the footing that that person is prima facie entitled to the right on which is based the claim for the main relief as well as the interim relief. That relief is granted as an interim measure till the disposal of the suit in which is to be investigated the validity of the claim or right that has been put forward. If no such claim has been put forward in the suit, it means that there can be no occasion for investigation of such a claim in the suit, there can be no justification for the grant of an interim relief which will just lapse on the termination of the suit, but which will leave the parties in the same position in which they were before the institution of the suit. in the course of which the interim relief was sought and obtained. That is not the scope of O. 39, Rule 1.
The power to grant an injunction is at the discretion of the court. This discretion, however, should be exercised reasonably, judiciously and on sound legal principles. Injunction should not be lightly granted as it adversely affects the other side. The grant of injunction is in the nature of equitable relief, and the court has undoubtedly power to impose such terms and conditions as it thinks fit.

[1] Justice  R.R.K. Trivedi, 'LAW OF INJUNCTIONS' [1996]  Judicial Training Research Institute's Journal, UP <>

[2] Anathula Sudhakar vs P Buchi Reddy,  [2008] SC AIR 2033  (R. Raveendran J. , P. Sathasivam J.)

[3] Ram Kissen vs Pooran Mull, [1920] (Cal)   AIR 239  (Asutosh Mookerjee J.)

[4] Woodroffe, The Law relating to Injunctions in British India (2nd edn, Thacker, Spink & Co 1906) Page – 130

[5] MJA, 'Law of Injunctions : Temporary Injunction including ex-parte temporary injunction, Perpetual Injunction and mandatory injunction' < - workshop dt. 18.01.2015.(Civil).pdf>

[6] Barada Sundari Paul and others Vs. The Assistant Custodian, Enemy Property,  1995 15 BLD (AD) 95 (Latifur Rahman, J)

[7] Supra note 2

[8] Saif Rasul Khan, 'The Law of Injunction' (LexQuest, 26 August 2015) <>

[9] Indumatiben v. Union of India, AIR 1969 Bom 423, (Nain  J.)

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