INJUNCTIONS

Under the Supervision of

Dr. Sunil George

(Assistant Professor of Law of Contracts)

Submitted by

Name: Bhargavi G Iyer

Roll No.: A026

BA LLB(Hons) 2019-24
 ABSTRACT

An injunction is an order issued by a court of law prohibiting or directing one of the parties to
perform a certain action. It is most often granted when monetary compensation or other forms
of damages alone would not suffice. It is the most effective form of justice under civil law in
India. This research project hopes to explore the essential elements that are kept in mind by
the court while issuing an injunction, and assess the various types of injunctions. The
research aspires to establish the various essentials of injunctions in the law of contracts, and
investigate the specifications as per Indian law. It also hopes to explore the case laws
pertaining to injunctions, and hopes to study injunctions as a form of specific relief.

Keywords: Injunction, compensation, action, prohibit, suit, court, equity, proceedings.

INJUNCTIONS

According to Black’s Law Dictionary, an injunction is a court order commanding or

preventing an action.1 An injunction has also been defined as a writ framed according to the
circumstances of the case, commanding an act which the court regards as essential to justice,
or restraining an act which it esteems contrary to equity and good conscience; as a remedial
writ which courts issue for the purpose of enforcing their equity jurisdiction; and as a writ
issuing by the order and under the seal of a court of equity.2

The main aim of an injunction is to either prevent or rectify past, present, imminent or certain
injury. In order to receive an injunction, the plaintiff must prove the absence of a plain,
adequate and complete remedy at law, and must be able to show that an irreparable injury
will result unless the injunction is granted. The injury must be such that it cannot be
adequately measured or compensated by money and therefore is often considered remediable
by injunction. As per the Supreme Court of India, a prima facie case, the balance of
convenience, and the irreparable injury are the three pillars on which rests the foundation of
any order of injunction.3

ESSENTIAL ELEMENTS IN ORDER TO GRANT AN INJUNCTION

1
Black's Law Dictionary 855 (9th ed. 2009).
2
Howard C. Joyce, A Treatise on the Law Relating to Injunctions 1, at 2-3 (1909).
3
Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438
It is essential that the evidence provided leads to the reasonable conclusion that the plaintiff
seeks. This forms the essence of a prima facie case. Prima facie means that there is sufficient
evidence in order to establish the facts of the case on the face of it, unless the same is
disproved or rebutted. It would constitute a case raising a substantial question and demanding
investigation and a decision upon its merits. It is essentially to evince that the claim brought
by the plaintiff is not vexatious or frivolous.

Balance of convenience is a balancing test that courts use to decide whether to issue a
preliminary injunction stopping the defendant's allegedly infringing or unfair practices,
weighing the benefit to the plaintiff and the public against the burden on the defendant. It is
also known as balance of hardship.4 The court, by this, weighs out the inconveniences caused
to both parties upon granting of the injunction, and decides accordingly; that is, if the
mischief or inconvenience caused due to withholding of the injunction is greater than the
inconvenience that would be caused if it is issued, the injunction is likely to be granted. It is
not so that relief must be denied to the plaintiff merely due to it being disadvantageous to the
defendant, but it must not be such that there is negligible benefit accrued to the plaintiff, only
being deleterious to the defendant.

The application of the ‘irreparable injury rule’ is also pertinent to note. It is also called the
adequacy test. It is the principle according to which equitable relief, such as an injunction, is
available in the circumstance wherein adequate legal remedy such as monetary compensation,
does not exist. The rule does not necessitate that the injury of which there is an imminent
threat, should be one not physically capable of being repaired, if the injury would be
substantial and serious, and not estimated easily, or repaired by money; and if the loss or
inconvenience to the plaintiff if the injunction should be refused (his title proving good)
would be much greater than any which can be suffered by the defendant through the granting
of the injunction, although his title ultimately prevails, the case is one of such probable great
or 'irreparable' damage as will justify a preliminary injunction. 5 This rule has received
considerable attention in the academic sphere, and continues to be debated as applicable in
the case of injunctions in contract law.

TYPES OF INJUNCTIONS

4
Black's Law Dictionary 163 (9th ed. 2009).
5
Elias Merwin, Principles of Equity and Equity Pleading 426-27 (H.C. Merwin ed., 1896).
There are various types of injunctions that are granted. On the basis of the preventive or
restorative effect of the injunction, it can be classified as mandatory or prohibitory. A
mandatory injunction, also called an affirmative injunction, is an injunction that orders an
affirmative act or mandates a specified course of conduct.6 It provides directions to take
positive steps, and is restorative of action done in breach of contract. Such an example can be
when one may be compelled to demolish or modify a building erected 7, or remove a road that
has been constructed8, if the same is not in compliance with the terms of the contract. On the
contrary, prohibitory injunction forbids or restrains an act. Prohibitory injunction is the most
common type of injunction issued or granted by courts. It is granted in the case of a negative
promise. For instance, if the defendant has breached a contract which states that he shall not
ring a church bell at five o’clock each morning, the court will restrain him from doing that
which he has expressly promised not to do.9

Depending on the time of issuing, and its finality, injunctions can be temporary or permanent.
A temporary injunction is issued before or during trial to prevent an irreparable injury from
occurring before the court has a chance to decide the case.10 It can be granted at any stage of
proceedings, and is enforceable in the time specified by the court or until the next hearing of
the case. It is governed by the provisions of Order 39 of the Code of Civil Procedure, 1908, in
Indian law. It is also known as an interlocutory injunction, preliminary injunction; provisional
injunction or an injunction pendente lite. Rule 1 of the Order 39 of the Civil Procedure Code,
1908, broadly emphasises on the cases in which a temporary injunction may be granted. It
specifies suits where it is proven, firstly wherein the property in dispute in a suit is in danger
of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in
execution of a decree; secondly, wherein the defendant threatens, or intends, to remove or
dispose of his property with a view to defrauding his creditors; and thirdly, where the
defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit11, the Court may issue a temporary injunction.
The Order has been subject to several High Court Amendments.

6
Black's Law Dictionary 855 (9th ed. 2009).
7
Lord Manners v Johnson (1875) 1 ChD 673
8
Charrington v Simons & Co Ltd (1970) 2 All ER 257, (1970) 1 WLR 725
9
Martin v. Nutkin (1724) 2 P Wms 266.
10
Black's Law Dictionary 855 (9th ed. 2009).
11
Civil Procedure Code, Order 39, Rule 1, (1908)
On the other hand, a permanent injunction is an injunction granted after a final hearing on the
merits.12 It perpetually enjoins the defendant from exercising his or her rights or committing
an act that is in contravention to the rights of the plaintiff. In spite of its name, it is not
necessarily everlasting or permanent in nature. It is also termed as a perpetual injunction, or a
final injunction. The provisions of the Specific Relief Act govern the grant of perpetual or
permanent injunctions. According to the Act, a perpetual injunction may be granted to the
plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by
implication. When any such obligation arises from contract, the court shall be guided by the
rules and provisions contained in Chapter II of the Act. When the defendant invades or
threatens to invade the plaintiff's right to, or enjoyment of, property the court may grant a
perpetual injunction in the following cases, namely where the defendant is trustee of the
property for 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; where the injunction is necessary to prevent a
multiplicity of judicial proceedings.13 The Act also defines a mandatory injunction, and
enlists damages in lieu of or in addition to injunctions. Section 41 of the Act enlists cases
wherein an injunction cannot be granted, or can be refused. According to this, an injunction
cannot prevent one from instituting a suit, in the institution at which the injunction is sought,
unless it is with the objective of preventing multiplicity of proceedings; and cannot prevent a
suit at a court with a larger jurisdiction, that is, one that is not subordinate to the court
intending to issue the injunction. An injunction cannot be issued restraining one from
applying to a legislative body, from instituting a suit in criminal matters, to prevent the
breach of a contract the performance of which would not be specifically enforced, to prevent
a continuing breach in which the plaintiff has acquiesced, when the plaintiff has been
disentitled to the assistance of the court, or has no personal interest in the matter. Section 42
of the Act explains an injunction to perform a negative agreement, wherein it states that in a
contract demanding an affirmative agreement for performance of an act, as well as a negative
agreement to abstain from an act, if due to the circumstances, a court is unable to enforce the
affirmative agreement, may still grant an injunction on the negative agreement, provided the
plaintiff has not failed to perform the contract so far as it is binding on him.14

12
Black's Law Dictionary 855 (9th ed. 2009).
13
Specific Relief Act, 1963, Part III, Chapter VIII, Section 38
14
Specific Relief Act, 1963, Part III, Chapter VIII, Section 42
An antisuit injunction prohibits a litigant from instituting other, similar or related
proceedings, usually between the same parties on the same issues, in other courts including
foreign courts. It may be issued to ensure equity and good conscience, and prevent injustice.
It is generally preventive of frivolous litigation, forum shopping, or multiplicity of
proceedings.

A head-start injunction is an injunction prohibiting the defendant from using a trade secret for
a period of time equal to the time between the date of the secret's theft and the date when the
secret became public. So named since that period is the "head start" the defendant unfairly
gained over the rest of the industry.15

A special injunction is an injunction in which the prohibition of an act is the only relief
ultimately sought, as in prevention of waste or nuisance.16

Other types of injunctions are- preventive injunction, which is designed to prevent a loss or
injury in the future; reparative injunction which is one requiring the defendant to restore the
plaintiff to the position that the plaintiff occupied before the defendant committed a wrong;
an ex parte injunction, also called a temporary restraining order, which is a preliminary
injunction issued after the court has heard from only the moving party; and quia-timet
injunction which is granted to prevent an action that has been threatened but has not yet
violated the plaintiff's rights. Quia-timet in Latin translates to “because he fears”.

INDIAN CASE LAWS PERTAINING TO INJUNCTIONS

The judicial process of injunction has been questioned in several suits in various courts of
law across the nation. In the case of Gujarat Bottling Co. Ltd. and Others v. Coca Cola Co.
and Others, the negative stipulation not to deal with beverages of any other brand or trade
mark, for agreement of grant of franchise to manufacture, bottle, sell and distribute beverages
under the trademark of Coca Cola Co. Ltd. was in question, wherein the appellant contended
that it would suffer irreparable loss and unemployment, due to the injunction issued against it
restraining the transferees of shares of GBC from using the plant for their activities. It was
held that the injunction was valid, as the conduct of the Gujarat Bottling Co. not being fair, it
would not be entitled to the equitable relief of vacating the injunction.17
15
Black's Law Dictionary 855 (9th ed. 2009).
16
Black's Law Dictionary 855 (9th ed. 2009).
17
Gujarat Bottling Co. Ltd. vs. Coca Cola Company and Others, (1995) 5 SCC 545
In the case of Union of India vs Bakshi Amrik Singh, the High Court of Punjab held that
injunctions are issued where the right sought to be protected is clear and unquestioned, and
where the threatened injury is positive, substantial and irremediable otherwise. It also laid
emphasis on the fact that the conduct of the parties seeking injunction must not be tainted
with unfairness or sharp practice. Where cause of action arises from a breach of contract, the
Court will not grant the relief prayed for, if it is a contract of which specific performance
cannot be allowed. There are a large number of contracts illustrative of this rule, and one of
them is contract relating to compulsory employment of a person particularly in matters where
the services to be rendered are of a personal nature, as seen in this case. 18 The retirement on
reaching age of superannuation, wherein date of birth had been erroneously entered
previously, was in question. The Court took into consideration when an injunction can be
granted, and how the discretion of the court is to be exercised in such a case. Accordingly, the
injunction granted was vacated.

Another case illustrative of the above-mentioned rule is Dewan Chand Sabbarwal v. Union
of India. The case arose from a building contract that had been rescinded and the services of
the contractor had been dispensed with. The contractor applied for the issuance of a
temporary injunction. The conclusion was made that in such cases specific performance was
not a suitable remedy and, if the dismissal of the building-contractor was wrongful, the
remedy lay in demanding damages.19

CONCLUSION

An injunction can be understood as an order issued by a competent court of law directing a

person to perform or refrain from performing a certain action. It acts as a remedy in the case
of a breach of contract, and enforces performance of a contract in specie. It is a judicial
process, and is applicable in personam. Damages must be an insufficient or inadequate
remedy, in order for an injunction to be granted. It is also required that the party applying for
an injunction possesses a valid claim. It is up to the party to prove that it has suffered injury
to its legal rights, or that the defendant has acted or is likely to act in an unconscionable
manner. An injunction is an equitable remedy, and thus requires that the applicant party come
with clean hands, that is, having acted in a justifiable manner. Being a discretionary remedy,

18
Union of India vs Bakshi Amrik Singh, AIR 1963 P&H 104
19
Dewan Chand Sabbarwal v. Union of India, AIR 1951 Punj. 426
it imposes no obligation on the court to grant it, and thus may be granted by the court when it
finds it just and convenient in doing so. An application for an injunction maybe made before
or after the start of the proceedings in court, and the same may be granted by the court in
advance if it deems necessary. Thus, it can be said that the grant of an injunction can vary
based on the facts of each case, and the discretion of the court. There are various types of
injunctions. Injunctions are described in the Specific Relief Act, 1963, and Order 39 of the
Civil Procedure Code, 1908.

REFERENCES

STATUTES
1. Civil Procedure Code, Order 39, (1908)
2. Specific Relief Act, 1963
DICTIONARIES
3. Black's Law Dictionary (9th ed. 2009).
BOOKS
4. Howard C. Joyce, A Treatise on the Law Relating to Injunctions (1909).
5. Elias Merwin, Principles of Equity and Equity Pleading (H.C. Merwin ed., 1896).
CASES
6. Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438
7. Lord Manners v Johnson (1875) 1 ChD 673
8. Charrington v Simons & Co Ltd (1970) 2 All ER 257, (1970) 1 WLR 725
9. Martin v. Nutkin (1724) 2 P Wms 266.
10. Gujarat Bottling Co. Ltd. vs. Coca Cola Company and Others, (1995) 5 SCC 545
11. Union of India vs Bakshi Amrik Singh, AIR 1963 P&H 104
12. Dewan Chand Sabbarwal v. Union of India, AIR 1951 Punj. 426