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BASIC PRINCIPLES OF INJUNCTION
AS A LEGAL REMEDY.
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TORT ASSIGNMENT.

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2/29/2016

ASHWATHI SHYAM

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1066
SEM II

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ACKNOWLEDGEMENT.
I would like to express my special thanks of gratitude to my teacher Ms.Namitha, who
gave me the golden opportunity to do this wonderful project on the topic ‘Liability in the case of
nervous shock which also helped me in doing a lot of research and me come to know about so
many new things
I am really thankful to her.
Secondly I would also like to thank my parents and friends who helped me a lot in finishing this
project within the limited time.

I am making this project not only for marks but to also increase my knowledge .
THANKS AGAIN TO ALL WHO HELPED ME.
Contents
Introduction.

Injunctions: A brief history.

 Illustrative cases.

Scope of injunctions.

Classification of Injunctions.

 Time period.
 Nature of decree.
 Ex parte injunction.
 The Mareva injunction.

Principles for granting injunctions

The Specific Relief Act, 1963-Injunctions

Some basic rules of injunctions

Important recent rulings

Conclusion

Bibliography
Introduction.
Any legal recourse without remedy is a futile exercise. Anyone moving the court in
regard of some injury whether past or continuing must first ensure exhaustion of preferred relief
measures of seeking damages. The granting of redress by law means that some person or group
will be required by the law to do or refrain from doing something. This redress may take various
forms. In the vast majority of tort actions, the plaintiff is seeking monetary compensation or
damages for the injury he has suffered and this fact strongly emphasizes that function of tort in
allocating or redistributing loss. In many cases however, the plaintiff is seeking an injunction to
prevent the occurrence of harm in the future and in this area the “preventive” function of tort
predominates

An injunction is an order of a court restraining the commission, repetition, or

continuance, of a wrongful act of the defendant. To entitle a party to an injunction he must either
prove damage or apprehended damage. The apprehended damage must involve imminent danger
of a substantial kind or injury that will be irreparable. An injunction is the primary remedy
sought, for example, in the cases of nuisance ad economic torts such as interference with
contract. This is not because damages are unavailable but because the defendant is engaged in a
continuing act and the damage suffered by the plaintiff may not yet have occurred or may be
suffered over a long period of time. There are some situations in which the law imposes upon the
defendant an obligation to disgorge the profits he has made from his wrongdoing, whether or not
the plaintiff has suffered any loss, hence injunctions are necessary. Preventive injunction can be
granted only when the defendant has violated or is going to violate some legal of equitable right
of the plaintiff and not merely on the ground that what the defendant is threatening to do is
unconscionable for him to do. In certain cases the court may have to do a balancing between tow
rights, for example, the right to privacy and the right to freedom of expression, before deciding
to issue the injunction.

An injunction may be granted to prevent waste, trespass, or the continuance of

nuisance to dwelling or business houses, to right of support, to right of way, to highways, to
ferries, to markets, etc.; or the infringement of patent rights, copy-rights and trademarks; or the
publication of trade secrets; or the wrongful sale or detention of a chattel, or the publication of a
libel or the utterance of a slander; or the disclosure of confidential communications, secrets,
papers, etc.; o r the publication of manuscripts, letters, and other unpublished matter.

The right to an injunction in India is governed by the Specific Relief Act, 1963, as can
be seen in ss.36 to 42 as regards the granting or withholding of injunctions and the grant of
temporary injunctions is governed by the Code of Civil Procedure, namely order 39 of the Code.
Injunctions: A Brief History
The most obvious objective of the law of tort is to provide a channel for compensating
victims of injury and loss. Tort is the means whereby issues of liability can be decided and
compensation assessed and awarded.

During the 14th century, England had two distinct court systems, known as the ‘Law
Courts’ and the ‘Equity Courts’. The law of injunction in India has its origins in the Equity
jurisprudence of England from which we have inherited its present administration. England had
borrowed the concept of an injunction from Roman law wherein it was known by the name
‘Interdict’. Roman interdicts were certain forms of words by which the Praetor or chief judicial
magistrate of Rome either commanded or prohibited something to be done and were categorized
into three; prohibitory, restitutory and exhibitory. Law courts were divided by their development
of the common law while the Equity courts had a flexible approach to cases and provide for
broad remedies. An injunction is an equitable remedy and the party who seeks relief must come
with clean hands. In England, Chancery became a court of law around 1380 to 1400 A.D.
Chancery and its development into a court is another aspect to understand the history of
injunctions. Injunctions appeared in the Chancery courts as early as the 1390s and injunction
cases in the early period were quite diverse involving such areas as real property, personal
property, tort and contract.

In India, the Specific Relief Act, 1963, which replaced the earlier Act of1877, provides
a large number of remedial aspects of law.

ILLUSTRATIVE CASES.

Case-Law- 1439 – Injunction Suit at Common Law.

Defendant told the plaintiff that he desired to marry her, and asked her for a sum of gold
and currency for wedding costs and business investments (to make him a more profitable
husband). She gave him the gold and currency without demanding a formal contract of marriage;
he then married another, and refused to return the gold and currency. Plaintiff sought an order
from the Chancellor to compel him to do so. Here, an injunction was sought because there was
no suitable common law form of relief1.

Case Law-2013- Injunction suit in India

Kum R.Preksha Vs Prasad G.N, Writ petition no. 6523/2013(GM FC), Firstly, wife filed
a MC 3749/12 for restitution of conjugal rights and temporary injunction restrain her husband to
marry another girl during pendency of the suit. Lower court granted injunction. High Court set
asides it.

1 (Baildon, Introduction to SELECT CASES iN CHANCERY A.D. 1364 TO 1471 xix (Selden Society Vol. 10))
Case Law-Torts and Injunctions.
An injunction was sought against waste in Peterson v. Shelley, 73 where the plaintiff,
who had a reversionary interest in land, wanted to prevent the present tenant from committing
waste of the timber2.

Contempt of court: 1576-1577

Injunctions could extend beyond the parties to include their attorneys and counselors. The latter
could be enjoined from proceeding at law or enforcing a judgment, 95 and they could be held in
contempt of Chancery if they violated the injunction3.

Scope of Injunctions.
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 thing. Injunctive relief is a discretionary power of the court and failure to comply with
an injunction may result in being held in contempt of court.

Historically, injunctions are issued only “when the remedy at law is inadequate”.
An example of this if your house is surrounded by trees that are of a considerable age and your
claims they are on his property and is planning to cut them down, while the dispute is pending,
the court might well issue an injunction preventing the neighbor from cutting down the trees
until the matter is heard and completely resolved. Otherwise thee could be irreparable damage to
the land, damage which cannot be rectified with monetary compensation and the damages that
the injured party is entitled to could be speculative.

Another example of when an injunction may be issued is in the case of an ongoing course
of conduct that violates your rights. For illustrative purposes, assume that X owns a water
reservoir which he had built on his property for the purposes of irrigation, U, his neighbor
siphons water from his reservoir without his permission and despite warnings from X, continues
this action. A court will issue an injunction in order to prevent that conduct from recurring.

Classification of injunctions.
Injunctions may be classified on the basis of either time-period of the order’s
prescription or on the nature of the order.

TIME PERIOD.

2
Choyce Cases 117, 21 Eng. Rep. 72 (Ch. 1577)
3 Allen v. Dingley, Choyce Cases 113, 21 Eng. Rep. 70 (Ch. 1576-1577)
 Injunctions when classified on the basis of time period; temporary or interlocutory and
perpetual.

A temporary or interlocutory injunction is one granted upon preliminary application

usually before the final hearing. It is merely provisional. They are granted on the basis of a prima
facie case, until the case is heard and decided on its merits. Injunctions such as this are to
continue until a specified time or until further order by the court. For instance, there may be need
to prevent fraudulent removal or disposal of property, or wrongful seizure of property in dispute,
and the injunction may help in the maintenance of status quo. Such injunctions maybe granted at
any stage of a suit and are regulated by the Code of Civil Procedure, 1908. Order 39 of the CPC
contains the rules regarding the grant of temporary injunctions and interlocutory orders.

A perpetual injunction is only granted only on final decree, and is an adjudication on the
merit of the controversy. It constitutes the decree or parts of the decree in the cause. This ensures
that the defendant is perpetually enjoined from the assertion of a right or from the commission of
an act, which would be contrary to the rights of the plaintiff. Perpetual injunctions may be
granted subject to provisions contained in the Specific Relief Act, 1963, such as in certain
instances to prevent the breach of an obligation existing in the favor of the plaintiff, when the
defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, namely
in cases where; the defendant is trustee to the property of the plaintiff, where there exists no
standard for ascertaining the actual damage caused or likely to be caused, by the invasion, where
the invasion is such that compensation in money would not afford adequate relief and also where
the injunction is necessary to prevent a multiplicity of judicial proceedings.

NATURE OF DECREE

A writ of injunction may be defined as a judicial process, operating in personam, and

requiring the person to whom. It is addressed to do or refrain from doing a particular thing. In its
capacity it may be either restorative or preventive, and may be used in the enforcement of rights
and prevention of wrongs. In general, however, it is used to prevent future injury rather than to
afford redress for wrongs already committed, and is, therefore, to be regarded more as a
preventive than as a remedial process. An injunction may either be prohibitory or mandatory.
The former forbids some act, and is governed by the provisions of section 38 whereas the latter
requires the defendant to do some particular act, as given in section 39.

Prohibitory injunctions are the most ordinary form of injunctions. It resists a person or
corporation from doing a continuous act which is detrimental to the plaintiff in his course of
ordinary enjoyment of land or other property. This prohibitory injunctive power to restore the
status quo ante is essential to the concept of fairness and equity. For example money damages
would be little good to an individual who only wished for someone to stop trespassing through
his land.
 While mandatory injunctions are established and maintained at present, they are rarely
exercised and seldom allowed before a final hearing. In relatively rare cases, the court may issue
this injunction compelling a person or company to take affirmative action to do something. It is
not infrequent that a covenanter or his successor acts in breach of the terms of a covenant which
binds him not to do something. The covenanted can seek a mandatory injunction requiring the
covenanter to undo what has already been done, so far as it is possible. It is because the
mandatory injunction is such a draconian remedy that the courts have sought excuses for refusing
it.

EX PARTE INJUNCTIONS.

Ex parte injunctions are granted upon the application of the plaintiff without the
defendants being heard, or sometimes when both plaintiff and defendant are heard. It is only
granted where delay would cause irreparable injury to property, or in similar cases to restrain the
action of courts in actions at law.

THE MAREVA INJUNCTION.

A temporary injunction that freezes the assets of a party pending further order or
final resolution by the Court, so named after the case which allowed the remedy, Mareva
Compania Naviera SA v International Bulkcarriers SA4.It is also known as a freezing
or freeze injunction .It is often used to prevent a defendant from secreting assets out of
the Court's jurisdiction as soon as the claim is served, to frustrate enforcement of the
judgment. Aimed usually at a specific defendant, and not attached to assets themselves.
The named defendant is so restrained in regards to specified assets. The injunction is
enforced by the contempt powers of a court. The Mareva injunctions are typically
obtained without notice to the other side (ex parte) as to tip the defendant off would likely
cause the prompt movement of the relevant assets before the Court could issue its
injunction, thereby insulating the defendant from contempt.

Principles for granting injunctions.

Injunctive relief is not a matter of right, but its grant or denial is within the
discretion of the court. Whether or not an injunction will be granted varies with the facts
of each case.

An injunction cannot be granted 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 the multiplicity of judicial proceedings. No
perpetual injunction can be granted to stay any judicial proceedings, which may be

4 (1975) 2 Lloyd's Rep. 509

pending in any other court. The rule recognizes an exception when the purpose of the
restraints is to prevent a multiplicity of suits.

An injunction cannot be issued to restrain any person from instituting or

prosecuting any proceeding in a court not subordinate to that from which the injunction is
sought.

An injunction cannot be sought to restrain any person from applying to any

legislative body.

The Court cannot grant injunction to restrain any person from instituting or
prosecuting any proceeding in a criminal matter.
An injunction cannot also be granted to prevent the breach of contract which
cannot be specifically enforced. Section 42, Specific Relief Act, 1963 contains an
exception to this rule, which reads as under: “42. Injunction to perform negative
agreements.- Notwithstanding anything contained in clause(e) of section 41, where a
contract comprises an affirmative agreement to do a certain act, coupled with a negative
agreement, express or implied, not to do a certain act, the circumstance that the Court is
unable to compel specific performance of the affirmative agreement shall not preclude it
from granting an injunction to perform the negative agreement: Provided that the plaintiff
has not failed to perform the contract so far as it is binding on him.”
An injunction cannot be granted to prevent, on the ground of nuisance, an act of
which it is not reasonably clear that it will be a nuisance.

An injunction cannot be granted to prevent a continuing breach in which the

plaintiff has acquiesced. For the application of this rule it should be a continuous breach
of the same transaction extending over a period of time. If a person has assented to
something being done he cannot be allowed to complain of the same, subsequently, in
view of the application of the equitable doctrine of acquiescence.

An injunction cannot be granted when equally efficacious relief can certainly be

obtained by any other usual mode of proceeding except in case of breach of trust. This
provision is similar to the one contained in section 14(a) according t which when
compensation in money is an adequate relief for the non-performance of the contract, the
remedy of specific enforcement of the contract cannot be allowed. The only exception is
the case of breach of trust, where to protect the interest of the beneficiary, an injunction
can be granted against the trustee to prevent the violation of the trust or improperly
dealing with the trust property.

An injunction cannot be granted when the conduct of the plaintiff or his agents
has been such as to disentitle him to the assistance of the Court. This is based on the
equitable principle that if a person wants equity he must come to the court with clean
hands. The plaintiff has, therefore, to prove that his conduct was fair and honest, free
 from any fraud, irregularity or illegality, in his dealings with the defendant.

The Court will refuse injunction to the plaintiff who has no personal interest in
the matter. When the person filing a suit is a nominal plaintiff, or when the plaintiff
contends that the interest of someone else is going to be prejudicially affected,[16] the
Court shall not grant injunction to him.

THE SPECIFIC RELIEF ACT, 1963- INJUNCTIONS

In our country, 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.

Section. 38. Perpetual injunction when granted.-

1. Subject to the other provisions contained in or referred to by this Chapter,
2. To prevent the breach of an obligation existing in his favor of plaintiff, whether expressly or
by implication.
3. If such obligation arises from contract, follow the provisions contained in Chapter II.
4. (3) If defendant invades or threatens to invade the plaintiff’ s right to, or enjoyment of,
property,
grant a perpetual injunction in the following cases, namely:-
1. Where the defendant is trustee
2. If there exists no standard for ascertaining the actual damage caused, or likely to be caused, by
the invasion;
3. If invasion – that compensation in money would not afford adequate relief;
4. To prevent a multiplicity of judicial proceedings.

Section 41. Injunction when refused.- An injunction cannot be granted

Any person from prosecuting a judicial proceeding pending (Exception:- to prevent a multiplicity
of proceedings)
1. From instituting or prosecuting civil or criminal
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.
39. Mandatory injunctions.
To prevent the breach of an obligation,
Necessity to compel the performance of certain acts
the court is capable of enforcing, it is a discretionary relief.
40. Damages in lieu of, or in addition to, injunction.-
The plaintiff may claim damages under section 38, or under section 39
The plaintiff shall claim damages in his plaint: plaint can be amended at any stage of the suit.
The dismissal of a suit is bar to claim damages.

SOME BASIC RULES OF INJUNCTIONS

1) An injunction is a remedy in common law.
2) The party, who seeks equitable relief, must come with clean hands.
3) A perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation in
his favor.
4) Injunction is an equitable remedy5.
5) There must be breach of an obligation or infringement of a legal right6.
6) The possession must be lawful possession7.
7) In the absence of irreparable loss, damages are the remedy8.
8) Where there is an efficacious relief, no injunction should be granted9.
9) Juridical possession is also a valid ground to grant injunction10.
10) Question of title may be incidentally gone into, while granting an injunction11.
11) Injunction cannot be granted in case of illegal agreement12.
12) No injunction shall be granted in case of an agreement with minor. (Sections 11 and 12 of
Indian Contract Act.)
13) Some time symbolic delivery is sufficient to sustain an action for injunction13.
14) Injunction by a person in possession without title14.
15) No injunction in case of caste questions15.

IMPORTANT RECENT RULINGS.

1. When injunctions cannot be granted, AC Muthiah’s case16.

5(AIR 1966 Guj.189)

6 (1981ALL.WC 68)
7 (AIR 1977 Orissa 152)

8 (AIR 1979 ALL 184)

9 (AIR 1980 P&H 351)

10 (AIR 1986 Kar 194)

11 (AIR 1981 SC 1183)

12
(ILR 1 Bom 550, Bhikaji vs. Bapu Saju)
13
(AIR 1977 Orissa 152)
14
(AIR 1986 Kar 224)
15
(AIR 1932 Bom.122, Nagindas vs. Somnath)
16
(2011) 6 SCC 617
2. Counter claim in injunction suit, Held. After framing issues, cannot be allowed17.
3. Injunctions – Joint family properties18.
4. It is well settled that the purchaser of a coparcener’s undivided interest in joint family property
is not entitled to possession what he has purchased. It is observed in AIR 2008 SC 248919.
5. Part of joint family properties – agreement of sale – 5 judge bench – AIR 1953 SC 443.
6. Revenue record is document of title20.
7. Pendent late transaction in injunction suit21.
8. Continuous possession – termination of agency – Injunction -2011 (4) SCALE 209
9. Scope of injunctions –Anathula Sudhakar vs. P.Butchi Reddy22.

Conclusion.
The grant of injunction is a purely discretionary. The Court may grant or refuse to grant the same
taking into account various factors like the balance of convenience, possibility of adequate relief
by way of damages, the conduct of the parties, and the possibility of enforcing its order. The
court can compel the performance of certain acts through a mandatory injunction, if the court is
capable of enforcing the same. Through an injunction the Court may order the demolition of
illegal structure on a highway, or stop some activity which would cause nuisance, or forbid the
publication of a statement which would be defamatory. To sum up succinctly, injunction means
It is an order of Court by which an individual is required to perform, or is restrained from
performing, a particular act. It is judicial process. The courts exercise their power to issue
injunctions judiciously, and only when necessity exists. An injunction is generally issued only in
cases where irreparable injury to the rights of an individual would result otherwise. It should be
readily apparent to the court that some act has been performed, or is threatened, that will produce
irreparable injury to the party seeking the injunction. An injury is generally considered
irreparable when it cannot be adequately compensated by an award of damages. The pecuniary
damage that would be incurred from the threatened action need not be great, however. If a loss
can be calculated in terms of money, there is no irreparable injury. The consequent refusal by a
court to grant an injunction is, therefore, proper. Loss of profits alone is insufficient to establish
irreparable injury. The potential destruction of property is sufficient. Injunctive relief is not a
matter of right, but its denial is within the discretion of the court. Whether or not an injunction
will be granted varies with the facts of each case.

17
2011(9) sc 332
18
AIR 1988 SC 576
19
(1966 (1) SCR 628)
20
AIR 2008 SC 901
21
(2009) 12 SC 2003
22
AIR 2008 SC 2003
Bibliography
1. BASIC PRINCIPLES OF LAW OF INJUNCTIONS , Y.Srinivasa Rao
Judge in RECENT ARTICLES ON LAW- WRITTEN BY A JUDGE.
2. Leading Cases Where Injunctions May Be Granted, J. N. Mosher Cornell Law School,
1893
3. LAW OF INJUNCTIONS, Justice R. R. K. Trivedi Judge, Allahabad High Court,
Published in Institute’s journal in 1996
4. The Law Relating To Injunctions, Judge Y.S. Rao