Chapter Four

Perpetual Injunction- When Granted and When Refused-

Injunction means the orders of the Court directing a party to the proceedings to do or not to
do certain act. Injunction may be issued only against a party and not against a stranger or 3rd
party. Injunction could be perpetual or temporary.

Perpetual means permanent. Perpetual injunction is one that is granted by the judgment that
ultimately disposes of the injunction suit. And it would remain in force so long as the
petitioner, for whose benefit injunction was issued, continues to hold the basic right or the
status in relation to the property or status in respect of which injunction is granted.

Temporary injunction would continue until specified time or until further orders of the court.
They may be granted at any stage of the suit.

i. Order 39 Rule 2 CPC enables the court to grant temporary injunction even after
judgment.
ii. Sections 36 to 42 of Specific Relief Act are the parent provisions dealing with
injunctions.

Perpetual Injunction: -
As per sec 37 (2) of Specific Relief Act- 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, or from the commission of an act, which
would be contrary to the rights of the plaintiff.

4.1: Perpetual injunction when granted: - As per 38 of Specific Relief Act-

i. Subject to the other provisions contained in or referred to by this Chapter, a

perpetual injunction may be granted to the plaintiff to prevent the breach of an
obligation existing in his favor, whether expressly or by implication.
ii. When any such obligation arises from contract, the court shall be guided by the
rules and provisions contained in Chapter II.
iii. 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:
a) where the defendant is trustee of the property for the plaintiff;
 b) where there exists no standard for ascertaining the actual damage caused, or
likely to be caused, by the invasion;
c) where the invasion is such that compensation in money would not afford
adequate relief;
d) where the injunction is necessary to prevent a multiplicity of judicial
proceedings.

4.2: Perpetual Injunction when Refused: -

As per sec 41 of specific relief act an injunction cannot be granted-
i. 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 a multiplicity of proceedings;
ii. to restrain any person from instituting or prosecuting any proceeding in a court
not subordinate to that from which the injunction is sought;
iii. to restrain any person from applying to any legislative body;
iv. to restrain any person from instituting or prosecuting any proceeding in a
criminal matter;
v. to prevent the breach of a contract the performance of which would not be
specifically enforced;
vi. to prevent, on the ground of nuisance, an act of which it is not reasonably clear
that it will be a nuisance;
vii. to prevent a continuing breach in which the plaintiff has acquiesced;
viii. when equally efficacious relief can certainly be obtained by any other usual
mode of proceeding except in case of breach of trust;
ix. when the conduct of the plaintiff or his agents has been such as to disentitle him
to the assistance of the court;
x. when the plaintiff has no personal interest in the matter.

4.2.1: Cases.
4.2.1.1: Hejian Solidkey Petroleum Machinery Co. Ltd. v. Indian Oil Corporation Ltd

Law is now well settled that a contract which cannot be specifically enforced, in such cases
injunction cannot be granted. This is clear from a reading of Section 14(1) of the Specific
Relief Act, 1963 read with Section 41 (e) of the said Act and which provisions read as under:
-

As per sec 14 of Specific Relief Act- “Contracts not specifically enforceable. — (1) The
following contracts cannot be specifically enforced, namely: —

i. a contract for the non-performance of which compensation in money is an

adequate relief;
ii. a contract which runs into such minute or numerous details or which is so
dependent on the personal qualifications or volition of the parties, or otherwise
from its nature is such, that the court cannot enforce specific performance of its
material terms;
iii. a contract which is in its nature determinable;
iv. a contract the performance of which involves the performance of a continuous
duty which the court cannot supervise.

Sec 41. Injunction when refused. —An injunction cannot be granted10 (e) to prevent the
breach of a contract the performance of which would not be specifically enforced;”

A reading of the aforesaid provisions shows that where compensation in money is an

adequate relief, then such a contract cannot be specifically enforced. In a contract, such as the
present, and in all other similar contracts, petitioner incurs expenditure as a whole and
ultimately enters into a contract for a profit margin viz compensation in money.

Therefore, compensation in money is an adequate relief to the petitioner and once the
compensation in money is an adequate relief, and which will be payable to the petitioner in
case the petitioner succeeds in proving breach of contract by the respondent under Section 73
of the Indian Contract Act, 1872, such a contract cannot be specifically enforced and
therefore even injunction as prayed for cannot be granted, in view of the aforesaid provisions
of Sections 14(1) and 41(e) of the Specific Relief Act.

It may also be noted that under sub-Sections (b) and (d) of Section 14 of the Specific Relief
Act, a contract which runs into minute or numerous details and a contract in which there
would require a continuous supervision by the court, even such contracts cannot be
specifically enforced, and once such contracts cannot be specifically enforced, no injunction
can be granted. The subject contract will also fall within the ambit of Section 14 (b) and (d)
of the Specific Relief Act.
4.2.1.2: Cotton Corporation of India Limited, (AIR 1983 SC 1272) :-
The following observations of the Hon’ble Supreme Court made in the above case

“Viewed from a slightly different angle, it would appear that the legal system in our country
envisages obtaining, of redressal of wrong or relief against unjust denial thereof by
approaching the Court set up for the purpose and invested with power both substantive and
procedural to do
justice that is to grant relief against invasion or violation of legally protected interests which
are jurisprudentially called rights:

If a person complaining of invasion or violation of his rights is injected from approaching the
Court set up to grant relief by an action brought by the opposite side against whom he has a
claim and which he wanted to enforce through Court, he would have, first to defend the
action establishing that he has a just claim and he cannot be restrained from approaching the
Court to obtain relief.

A person having a legal right, and complains of its violation or infringement, can approach
the Court and seek relief. When such person is injuncted from approaching the Court, he has
to vindicate the right and then when injunction is vacated, he has to approach the Court for
relief. In other words, he would have to go through the gamut over again; when defending
against a claim of injunction the person vindicates the claim and right to enforce the same. If
successful he does not get relief, but a door to Court which was bolted in his face is opened.

Why should he be exposed to multiplicity of proceedings? In order to avoid such a situation,

the Legislature enacted Section 41(b) and statutorily provided that an injunction cannot be
granted to restrain any person from instituting or prosecuting any proceeding in a Court not
subordinate to that from which the injunction is sought. Ordinarily a preventive relief by way
of prohibitory injunction cannot be granted by a Court with a view to restraining any person
from instituting or prosecuting any proceeding and this is subject to one exception enacted in
larger public interest, namely, a superior Court can injunct a person from instituting or
prosecuting an action in a subordinate Court with a view to regulating the proceeding before
the subordinate Courts.
At any rate the Court, is precluded by a statutory provision from granting an injunction
restraining a person from instituting or prosecuting a proceeding in a Court of coordinate
jurisdiction or superior jurisdiction.

4.2.1.3: K VENKATA RAO vs SUNKARA VENKATA RAO 1998 (6) ALD 278
The Hon’ble Supreme Court held that permanent injunction cannot be granted when an
alternative efficacious relief is obtainable in any other usual mode or proceedings.

4.3: When Perpetual Injunction arises: -

4.3.1: There must be breach of an obligation or infringement of a legal right: -
The plaintiff claiming the relief of perpetual injunction has to establish the breach of an
obligation or infringement of a legal right. Where the plaintiffs are unable to allege any
recognizable right or obligation nor breach of the same, they cannot sustain an action for
perpetual injunction.

A true owner is under an obligation not to interfere with the possession of a trespasser. A
person possession of immovable property can sustain an action for injunction against even
rightful owner on the principle that even such a person must be evicted only by due course of
law.

4.3.2: The possession must be lawful possession: -

It is not necessary for the person claiming injunction to prove his title to the suit property and
it will be sufficient if he proves that he was in lawful possession of the property and his
possession was invaded or threatened to be invaded by a person who had no title whatsoever.

Where it is established that the plaintiff was in possession of the suit property on the date of
suit, the relief of perpetual injunction cannot be rejected. Injunction cannot be sustained on
the basis of wrongful possession against the lawful owner.

Where a person is in lawful possession of the property and his possession is threatened to be
interfered with by the defendants, he is entitled to sue for a mere injunction without seeking
declaration of his rights. Injunction would not be issued against the true owner.
4.3.3: Juridical possession also can be protected: -
The continuance of possession by the lessee without the consent of the lessor may not be
"lawful possession" but it is "juridical possession" which can be protected against the high-
handed acts of forcible dispossession".

Juridical possession which is protected by law against wrongful dispossession cannot parse
be equated always with lawful possession. After a lease is terminated if the tenant continues
in possession without the consent or acquiescence of the lessor such a tenant is a tenant by
sufferance and he cannot be deemed to be holding over.

A tenant by sufferance can maintain an action for injunction and protect his possession. A
statutory tenant can well protect his possession against any forcible dispossession. Persons
are not permitted to take "Forcible possession" as they must obtain such possession as they
are entitled to through a Court.

Our law makes a clear and sharp distinction between a "trespasser" and "erstwhile tenant and
the possession of a "tenant by sufferance" was held to be juridical possession and hence such
possession can be protected by law. But a person in wrongful possession is not entitled to be
protected against the lawful owner by an order of injunction.

The erstwhile tenants or tenants by sufferance cannot be equated with such persons who may
be in lawful possession or mere trespassers since the origin of possession in the case of an
erstwhile tenant will always be lawful and the possession of such a tenant after the expiry of
the term is termed as juridical possession for want of consent of the lessor and such
possession can be protected as against forcible dispossession or dispossession otherwise than
by due process of law".

4.3.4: Whether symbolic delivery is sufficient to sustain an action for injunction: -

Where the defendants admitted the title of the plaintiff to the suit lands and the court also
found that plaintiff had taken symbolical possession of suit lands in execution proceedings
the Court in a suit for permanent injunction should have proceeded to examine whether the
plaintiff was in actual possession of the suit lands on the date of suit and if the Court finds
that plaintiff was in possession of suit, it cannot reject his prayer for permanent injunction
since even if it was a case of symbolic delivery of possession, symbolic delivery amounts to
actual delivery of possession of the suit properties in favor of the plaintiff.

4.3.5: Suit for injunction by a person in possession without title: -

A person in possession can be evicted only by due process of law and hence even a rightful
owner cannot eject him by force. Such person can resist invasion of his possession by
everyone including the rightful owner. If the rightful owner threatens his peaceful possession,
he can approach Courts of law and pray for the equitable relief of injunction to protect his
possession.

4.3.6: Injunction against a lessee: -

A tenant must keep the property in as good condition as he found it and he must yield up the
property in the same condition subject only to fair wear and tear and irresistible force. A
tenant cannot make structural additions and alterations without the consent of the land-lord
and the alterations that are not authorized would amount to breach of the implied covenant.
When a legal duty is imposed on a person in respect of another, the other is invested with a
corresponding legal right.

Hence, an injunction can be granted to the plaintiff - land-lord to prevent the breach of an
obligation existing in his favor under the tenancy when the defendant tenant invades or
threatens to invade the plaintiff's right by using the demised premises in a way not consistent
with covenants of the lease or when he alters the structure of the building by making
excavation of unauthorized construction etc. on the leased premises.

4.3.7: Injunction against a lessor: -

The possession of a statutory tenant is protected by Courts of law. Persons are not permitted
to take forcible possession. They must obtain such possession as they are entitled to through a
court.
A tenant by sufferance also is entitled to an injunction. In Mogilipuvvu Annapurnaiah Vs.
Malampati Narasimha Rao and another the Division Bench of the Andhra Pradesh High
Court on this aspect held--“Thus possession of a tenant by sufferance cannot be considered as
unauthorized.”

4.3.8: Injunction in case of co-owners: -

Where a co-owner intends to carry on with a material change in the user of joint property
without the consent of the other co-owner, he may restrain the other from carrying on with
such operations.

A right to take water from a joint well cannot be dis-associated with the land and such co-
owners are not entitled to take water from the well to irrigate other lands. A co-owner can
maintain an action for injunction for removal of obstruction put up by the other co-owner on
the joint property. Where both parties are co-sharers of Shebaiti rights, a suit for perpetual
injunction restraining the other from offering sewa-puja is not maintainable.

4.3.9: Injunction in case of Champerties agreements: -

An agreement to supply funds for litigation is not per se illegal and the court while exercising
discretion can grant injunction to enforce the obligation arising from such a contract. In
Nuthaki Venkataswami vs. Katta Nagi Reddy the Division bench of Andhra Pradesh High
Court Observed--
“The Important question for consideration, however, is with regard to the validity of the
agreement. Initially it may be observed that the English Law in regard to champerty and
maintenance does not apply to Indian for it has been laid down that the mere fact of an
agreement being champerties is not of itself sufficient to render it void but it must be shown

in addition, that it is contrary to public policy. There is a long line of authority which
establishes that a fair agreement to supply funds to carry on a suit in consideration of having
a share in the property, if recovered, is not per se opposed to public policy and is not illegal”.

4.3.10: Injunction is case of nuisance: -

A person has a right to enjoy his property in any way he pleased provided he does not create
nuisance or interfere with the rights of others’. A relief of injunction can be claimed to stop
nuisance if in a noisy locality there is substantial addition to such noise by the introduction of
some machine or instrument or some performance at the premises of the defendant which
materially affects the physical comforts of the members or occupants of the plaintiff’s house.
While claiming the relief of injunction the plaintiff must prove that the nuisance is an
actionable one and it is apprehended to cause substantial injury to his property.

4.3.11: Injunction in case of Easementary rights: -

Where an invasion of a right to light acquired as easement is complained of, Sections 28, 33
and 35 of the Indian Easements Act, 1882 have to be kept in view before granting an
injunction and these sections have to be read together and so read, interference with light and
air which is not substantial, does not give a cause of action to a person claiming such right.
An injunction can be granted when the threatened disturbance materially interferes with the
comfort of the owner.
Where an infringement of an easementary right of air or light is alleged, the court, while
granting an injunction must consider the fact whether such infringement amounts to an
actionable nuisance so as to interfere with the comfortable occupation of the houses of the
plaintiff having regard to the ordinary notions of mankind and the reasonable usages which
the portion of the house may be capable of.

Where the plaintiff claims the relief of perpetual injunction regarding his right for free flow
of light and air to his house through the window in question, he has to establish material
injury irrespective of the question whether he has perfected his prescriptive right to light and
air. An
injunction, in the case of lateral support even without the occurrence of actual damage can be
sustained.

4.3.12: Injunction against a trustee: -

A trustee making unauthorized changes in the case of a trust property affecting the very
character of the institution will be restrained by means of an injunction. An injunction can
always be granted in the case of breach of trust and to see that such acts which are
detrimental to trust are prevented in the interests of the trust as such.

4.3.13: Injunction to prevent waste: -

Waste means, in general, such damage to houses or land as tends to the permanent and lasting
loss of the person entitled to the inheritance. While granting an injunction on the ground of
waste, the court has to consider the nature and also the extent of waste and whether granting
injunction is necessary to prevent such a waste.
For example: -
a. Where a widow a limited owner had invested the money in stocks or shares without
any need changing investment and also exposing the capital to depreciation.
Injunction restraining such waste was held to be a proper to be a proper remedy.
 b. Where the father in a Hindu family intended to alienate the family property, he was
restrained from alienating more than his own share. It is not necessary for the
plaintiff to wait until the waste is actually committed to bring an action for
injunction but is sufficient if such an intention is expressed by the defendant.

4.3.14: Injunction to prevent trespass: -

Where the trespass is in violation of an obligation, the trespass can be prevented by means of
an injunction. The threatened trespass must not be a mere vague apprehension where there is
a real threat of dispossession disturbing lawful possession of the plaintiff, he can maintain an
action for injunction. Thus, the possession of a statutory tenant or tenant by sufferance is
protected by law.

4.3.15: Injunction be an Insolvency court: -

The powers of Insolvency Courts under Section 4 of the Provincial Insolvency Act 1920 and
Section 7 of the Presidency Towns Insolvency Act 1909 are very wide and hence suitable
injunctions can be granted by Insolvency courts in the interest of justice in proper cases.

4.3.16: Injunction in case of Companies: -

Ordinary Mandatory and perpetual injunction can be granted only in a regular suit but
injunction to ensure compliance with the mandatory provisions of the Companies Act, can be
granted only by a court having jurisdiction under the Act.

The court is empowered to restrain the winding up proceeding of a company in an

appropriate case but such injunction cannot be granted in a case where the winding up order
had been made already.

Where there was gross illegality in the process of voting or the defendant did not hold the
required shares to be a Director such parties can be restrained by means of an injunction but
injunction can be refused where damage may afford an adequate relief.

4.3.17: Injunction against Government: -

A suit to obtain an urgent or immediate relief against the Government or any public officer in
respect of any act purporting to be done by such public officer in his official capacity may be
instituted with the leave of the court without serving any notice.

But court shall not grant relief in the suit, interim or otherwise except after giving to the
government of public officer a reasonable opportunity of showing cause in respect of such
relief prayed for in the suit. Even the state is subject to the jurisdiction of the court in the
matter of injunction and its officers can be penalized for the violation of the order.

4.3.18: Suit for injunction by a person entering into possession lawfully on basis of
agreement of sale: -

A suit for perpetual injunction simpliciter without a prayer for relief of specific performance
by a person who had entered into possession lawfully on basis of agreement of sale, is
maintainable.
4.3.19: Suit for declaration and injunction: -
If there is legal necessity for a declaration before grant of relief of injunction would not be a
suit for injunction and if grant of declaration is not necessary the suit would be purely suit for
injunction.

In view of the provision of Sec. 37 and 38 of the Specific Relief Act 1963 the Court may
grant an injunction as a substantive relief without any prayer for declaration although in many
such cases, a declaration may be implicit in the grant of a perpetual injunction.

Ananthula Sudhakar vs. P. Buchi Reddy AIR 2008 SC 2033

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.

But what if the property is a vacant site, which is not physically possessed, used or enjoyed?
In such cases the principle is that possession follows title.

i. suit for injunction can also be maintained by a person with a better title.
ii. person in wrongful possession cannot seek injunction
iii. when person title is in dispute then he can seek for injunction
iv. when person is dispossessed then he has to seek for possession plus injunction
v. when person is in possession but his title is in dispute then he can seek for
declaration plus injunction
vi. when person title is in dispute and he is dispossessed then he can seek for
declaration plus possession plus injunction.
4.4: When Perpetual Injunction does not arise: -
The fact that, the question of title also may have to be incidentally gone into in deciding
whether an injunction can be given or not is no justification for holding objection to the
maintainability of a suit for only an injunction where it was found that the defendant was in
possession and the
plaintiff was not in possession, a suit for permanent injunction was held to be not
maintainable.

Whether the plaintiff's filed a suit for the reliefs of permanent injunction and mandatory
injunction the dispute inter se between the three plaintiffs the three plaintiffs was held to be
immaterial in view of the amendment and further, it was held that so far as defendants were
concerned the question of title of plaintiffs inter se was not at all relevant.

Even in a suit for permanent injunction, interim injunction cannot be granted when prima
facie title is not proved. Where the title of the property is under challenge, a suit for mere
injunction without praying for declaration of title is not maintainable.

4.4.1: Injunction against an alien: -

In granting an injunction against an alien the court acts in person and it will so act only when
the person against whom the relief is sought is within its reach and amenable to its
jurisdiction. If the alien is in another country the injunction will be inoperative against him.

4.4.2: Injunction against breach of contract: -

An injunction cannot be granted to prevent the breach of a contract, the performance of which
cannot be specifically enforced. Where the plaintiffs entered into contracts with third parties
terminable by proper notice and had agreements terminable on two weeks’ notice with
tenants of Public houses to supply and maintain coin-operated amusement machines and the
defendants had taken over management of public houses without including the plaintiffs in
the list of nominated suppliers and also required tenants to cease doing business with
plaintiffs, it was held in the under mentioned case that plaintiffs are entitled to injunction
restraining defendants from procuring breach of contracts between plaintiffs and tenants.

In the case of an execution of a contract, to sustain an action for injunction it must be shown
that there is interference in the execution of a contract and the interference is not continued to
the procurement of a breach of contract it extends to a case where a third person prevents or
hinders one party from performing his contract even though it be not a breach. Such
interference must be deliberate.

The person must know of the contract of at any rate, turn a blind eye to it and intend to
interfere with it. Further such interference must be direct. Where under a contract power is
governed to a party to terminate it and such party had canceled the same, court cannot grant
temporary injunction against such party.

4.4.3: Injunction cannot be granted for illegal agreements: -

Since an illegal agreement cannot be enforced at all, there cannot be an injunction in the case
of an illegal agreement.

4.4.4: Injunction for an agreement with a minor or an insane person: -

A minor is not competent to contract and a contract entered into by a minor is void. The
position of an insane person is also the same in the case of entering into contracts but a
person who is usually of unsound mind but occasionally of sound mind may make a contract
when he is of sound mind. Hence there cannot be an injunction in the case of an agreement
by a minor or an insane person.

4.4.5: An injunction cannot be granted to prevent breach of contract of agency:

Under S. 41 (e) of the Specific Relief Act an injunction cannot be granted in a suit filed to
prevent breach of contract of agency as it can always be compensated in money.

4.4.6: Injunction for caste questions: -

The caste is a social combination, the members of which are enlisted by birth, not by
enrollment. Its rules consist of partly resolutions passed from time to time but for the most
part of usages handed down from generation to generation. Caste question is a question
which relates to matters which affect the internal autonomy of the caste and its social
relations.

Normally the courts may not be inclined to interfere in caste questions except where an action
is in violation of a rule sanctioned by the caste itself or in violation of principles of natural
justice. The inherent power of expulsion in a caste not dependent on proof of usage within
caste
was held to be doubtful in the under mentioned case.
A properly assembled caste panchayat has jurisdiction to out caste members of its community
who have committed caste offences and in consonance to natural justice, Civil Court cannot
interfere.

4.4.7: Civil court has no jurisdiction to restrain defendant from recovering amount due
under Employees State Insurance Act: -

The Employees State Insurance Court has the jurisdiction to settle a dispute between a person
and the Corporation in respect of any contribution or benefit or other dues payable or
recoverable under the Employees State Insurance Act and S. 75 (3) of the Act injuncts the
Civil
Court to refrain from deciding such a dispute.

4.4.8: Possession Can be taken by lessor on expiry of lease in accordance with law :-

Possession can be taken by lessor from lessee on expiry of lease in accordance with law and
not by use of force.

4.4.9: Injunction against trade union: -

An injunction can be granted restraining the office bearers of a trade union from raising
slogans and inciting acts of violence etc. but if such relief is otherwise barred like under
Sections 24 and 26 of the Industrial Disputes Act 1947 or the provisions of Maharashtra
Recognition of Trade Unions and Prevention of unfair labour Practices Act 1971 the suit for
an injunction cannot lie.

4.4.10: Injunction and Sec.53-A of the Transfer of Property Act 1882--

It is not the law that the non-alienating co-parceners can straightaway walk into the land and
recover possession of the property without regard to the rights of the purchaser. The plaintiff
can maintain his possession so long as there is no attempt made by the non-alienating
coparceners to recover possession from him in due course of law.

If the plaintiff is entitled to the benefit of Sec. 53-A of the Transfer of Property Act, he is
entitled to protect his possession till the general suit for partition is filed, but the above view
expressed by His Lordship Venkatarama Sastry J was not accepted by the Division Bench
and the Division Bench observed.

Section 53-A of the Transfer of Property Act cannot be invoked against non-alienating co-
parceners. Section 53-A does not confer any title on a person who has been put in possession
under an agreement of sale.

“The right which Section 53-A confers is available only as a defense to protect possession
against the transferor. It imposes a bar on the transferor from enforcing any right other than
that expressly provided under the contract. This right cannot be enforced against non-
alienating co-parceners who are not parties to an agreement of sale. The right conveyed under
the Section can be relied upon only as a shield and not as a sword but the protection is
available to the transferee both as a plaintiff and as a defendant so long as he uses it as a
shield”.

Where the Karta of a joint Hindu family enters into a contract of a sale and signs it himself
without specifying that he was signing on behalf of other members of the family also and the
contract is binding on members under the principles of Hindu Law, then, the Karta would
have signed the contract on behalf of the other members also. In a suit for specific
performance of an agreement of sale, injunction cannot be granted on the basis of Sec. 53-A
of the Transfer of Property Act 1882.
Relief of injunction cannot be granted when plaintiff has not shown his readiness and
willingness to perform his part of the contract. In a suit for specific performance of agreement
of sale interim injunction can be granted against defendant basing on 53A of T.P. Act.

4.4.11: SUNIL KUMAR VS RAM PRAKASH AIR 1988 SC 576

The Hon’ble supreme court held that permanent injunction cannot be granted against karta of
the family being manager of the property who has right to dispose of joint hindu family
property to meet out legal necessity to discharge his antecedent debt which is not tainted with
immorality.

Conclusion: -
The relief of injunction is an equitable and discretionary remedy. Proceedings for grant of
injunction are always discretionary and a court of law shall not generally grant perpetual
injunction in favor of the plaintiff against the right owner if he is a mere trespasser. The
plaintiff must establish his legal right and also his exclusive possession to have the relief of
perpetual injunction. A court may exercise its judicial discretion and grant a perpetual
injunction if the relief is not barred by any of the provisions of Sections 39 and 41 of the
Specific Relief Act, 1963 and to prevent the breach of an obligation which is in existence.
According to the legal maxim of equity that he who seeks equity must do equity is applicable
to a case in which such an equitable remedy is prayed for. Moreover, the plaintiff asking for
such a relief should be able to show that he has come to Court with clean hands.

To conclude, the discretion of the court is not meant to be an arbitrary or capricious

discretion, dependent on the near pleasure of the judge. The discretion is a judicial discretion,
excised like a settled rule, so as to prevent the defendant do a wrong act. It is a sound and
reasonable discretion to be excises having regard to all the circumstances of the particular
case. It is capable of correction by a court of appeal, because where a trial judge has
discretionary powers, the appellate court has similar discretion and the similar duty to excise
it. A decree for perpetual injunction is clearly an executable decree under order 21 Rule 32
(1) of C.P.C. and hence appellate court can order stay of execution of such decree in
appropriate cases.