ASSIGNMENT ON

“INJUNCTION”
Course Title: Law of Equity, Trust and Specific Relief
Course Code: LLBH 209

Prepared for:

Ms. Anjelika Hasan

Assistant Professor
Department of Law
Green University of Bangladesh

Prepared by

Suniya Akter
173011009
Department of Law
Green University of Bangladesh

Submission Date: 10-01-2021

Contents
Introduction ................................................................................................................2
OBJECT .....................................................................................................................2
TYPES OF INJUNCTION ........................................................................................3
Perpetual injunction ...................................................................................................3
Temporary or interim injunction ................................................................................7
Mandatory Injunction...............................................................................................10
Conclusion ...............................................................................................................16
Bibliography.............................................................................................................17
Introduction

An injunction is a judicial process whereby a party is required to do, or is refrained

from doing, any particular act. It is a remedy in the form of an order of the Court
addressed to a particular person that either prohibits him from doing ‘or continuing
to do a particular act (prohibitory injunction); or orders him to carry out a certain act
(mandatory injunction).

OBJECT

Until legal rights and conflicting claims of the parties before the court are
adjudicated by the grant of the interim relief an individual’s property can be
preserved. Basically, the object of making an order regarding interim relief is to
evolve a workable formula to the extent called for by the demands of the situation,
keeping in mind the pros and cons of the matter and striking a delicate balance
between two conflicting interests, i.e., injury and prejudice, which the plaintiff had
to bear if the relief is refused; and same goes for defendant if the relief is granted.
The court in the exercise of sound judicial discretion can grant or refuse to grant
interim relief.

The main object of granting an individual temporary injunction is to maintain and

preserve status quo at the time of proceedings institution and to avoid any change in
it until the final determination of the suit. It is in the nature of protective relief
granted in favor of a party to prevent future possible injury.
TYPES OF INJUNCTION

Section 52 to 57 of the Specific Relief Act govern injunction. Injunctions are of three
kinds:

Perpetual injunction
Temporary injunction
Mandatory injunction

Perpetual injunction
Section 54 of the Specific Relief Act, 1877 deals with Perpetual injunction.
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.
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. Order
39 Rule 2 CPC enables the court to grant temporary injunction even after judgment.

PERPETUAL INJUNCTION WHEN GRANTED

(1) 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.
(2) When any such obligation arises from contract, the court shall be
guided by the rules and provisions contained in Chapter II

(3) 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.

WHEN PERPETUAL INJUNCTION ARISES:

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
plaintiff's 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.

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.

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 perse 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".

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 favour of the plaintiff.

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.

Temporary or interim injunction

Section 53 of the Specific Relief Act deals with the temporary or interim injunction.
This type of injunction stops a party for a while from doing the specified act and can
be granted only until the suit is not over or until any other further order of the Court.
Regulated by the provision of the Order 39 of the Code of Civil Procedure, 1908 and
can be granted at any stage of the suit.

A temporary injunction is a provisional relief. The aim of such type of injunction is

to protect the subject matter of the suit in the existing condition, without the
defendant’s interference or threat. plaintiff from getting disposed off, or his property
(subject matter) being destroyed or harmed, or from any injury to the plaintiff.
When the defendant threatens to dispossess the plaintiff or otherwise cause injury to
the plaintiff in relation to any property in dispute in suit, the Court may grant a
temporary injunction to restrain such an act or make other order for the purpose of
preventing the dispossession of the plaintiff or for the purpose of preventing the
causing of injury to the plaintiff in relation to any property in dispute. If the
defendants are creating third party interest/rights as he is trying to dispose of part of
the property, the plaintiff can claim the injunction.

Temporary injunction is a provisional remedy that is invoked to preserve the subject

matter in its existing condition. It's purpose is to prevent dissolution of the plaintiff's
rights. The main reason for use of a temporary injunction is the need for immediate
relief.

Section 53 of the Specific Relief Act contain provisions under which the Court may
in order to prevent the ends of justice from being defeated, grant a temporary
injunction or make such other interlocutory order as may appear to the Court to be
just and convenient. Section 95 of Civil Procedure Code further provides that where
in any suit a temporary injunction is granted and it appears to the Court that there
were no sufficient grounds, or the suit of the plaintiff fails and it appears to the Court
that there was no reasonable or probable ground for instituting the same, the Court
may on application of the defendant award reasonable compensation which may be
to the extent of the pecuniary Jurisdiction of the Court trying the suit.

While granting temporary injunction the tests be applied are (1)Whether the plaintiff
has a prima facie case, (2) Whether the balance of convenience is in favour of
plaintiff and (3) Whether the plaintiff would suffer irreparable injury if his prayer
for temporary injunction is disallowed. The court while granting or refusing to grant
injunction should exercise sound judicial discretion to find the amount of substantial
mischief or injury which is likely to be caused to the parties, if the injunction is
refused, and compare it with that which is likely to be caused to the other side if the
injunction is granted. If on weighing competing possibilities or probabilities of
likelihood of injury and if the court considers that, pending the suit, the subject
matter should be maintained in status quo, an injunction would be issued. Thus the
court has to exercise its sound judicial discretion in granting or refusing the relief of
ad interim injunction pending the suit. At the stage of deciding the application for
temporary injunction, the Court is not required to go into the merits of the case in
detail.

Generally, before granting the injunction, the court must be satisfied about the
following aspects:

* “ubi jus ibi remediam”. Where there is right there is remedy.

* One who seeks equity must come with clean hands.
* One who seeks equity must do equity.
* Where equities are equal, the law will prevail.
* Equity follows the law.
* Equity aids the vigilant, not those who slumber on their rights.
* The power to grant a temporary 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.

Such conditions, however, must be reasonable so as not to make it impossible for

the party to comply with the same and thereby virtually denying the relief which he
would otherwise be ordinarily entitled to.
Mandatory Injunction

Injunction is an equitable relief and it is a settled law that equity acts in personam,
therefore, injunction is a personal matter. The purpose of mandatory injunction is to
restore a wrongful state of things to their former rightful order. Principal difference
between prohibitory injunction and mandatory injunction is that, in the former the
defendant is prohibited from doing a particular thing in a particular manner, whereas,
in the latter, the defendant is directed to do a particular thing and if he fails to do as
directed, the court gets it done through its officers.

Section 55 of the Specific Relief Act, 1877 does not define but categorically deals
with grant of mandatory injunction. Two elements have to be taken into
consideration to determine the grant of mandatory injunction, these are:

a) What acts are necessary in order to prevent a breach of the obligation; and,
(b) The requisite acts must be such as the court is capable of enforcing.

Mandatory injunction is not to be granted

(a) Where compensation in terms of money would be an adequate relief to the

plaintiff;
(b) Where balance of convenience is in favour of the defendant;
(c) Where plaintiff has shown acquiescence in the acts of the defendant; and,
(d) To create a new state of things, but rather to restore status quo.

In the case of, Dorab Cawasji Warden v. Coomi Sarab Warden, the

Hon’ble Supreme Court of India held that, for grant of interim mandatory injunction
the following test must be complied with:
(a) The plaintiff has to demonstrate a strong case for trial, that is, it should be of a
standard higher than that of a prima facie case;
(b) The plaintiff has to lay-bare that the grant of mandatory injunction is necessary
to prevent irreparable loss or serious injury, which cannot be compensated in terms
of money; and,
(c) The balance of convenience is in favour of the plaintiff as against the defendant.

Mandatory injunctions are sometimes availed of as reliefs in the nature of ‘quia

time’, that is, in a proper case, mandatory injunction may be granted when there is a
threat of infraction of the plaintiff’s right before the infraction has actually occurred.

Principles governing Mandatory Injunction

Mandatory injunction is an order requiring the defendant to do some positive act for
the purpose of putting an end to a wrongful state of things created by him, or
otherwise in fulfilment o his legal obligation.
Essentials:

Two conditions must be fulfilled for a mandatory injunction can be granted.

1. There must be an obligation on the part of defendant to perform certain acts the
breach of which obligation, must be alleged by the plaintiff.

2. Relief must be enforceable by the court.

Prevention of breach of obligation

Section 55 Specific Relief Act, enables the issuance of an injunction to prevent the
breach of an obligation and to compel the performance of acts which are necessary
to prevent such breach. Power to grant mandatory injunction is to be exercised in
very exceptional and rare circumstances, subject to the conditions laid down in
section 55, which requires the relief can only be granted, where breach of an
obligation, is capable to specific performance by the court, where the agreement is
not specifically enforceable relief of mandatory injunction cannot be granted.

Relief must be enforceable by court

A mandatory injunction can be granted where the court can enforce it. Where the
injunction is not enforceable, the court would not grant it. Thus, a mandatory
injunction directing a person to undertake the repairs and work of improvement
involving engineering skill and expenses cannot be granted as the court is not
capable of enforcing it.

Order to compel performance of acts

Section 55 enables the issuance of an injunction to prevent the breach of an

obligation and to compel performance of acts which are necessary to prevent such
breach. A court can grant a mandatory injunction when an unlawful act obstructs the
proper enjoyment of the plaintiff’s right of property. The court in such circumstances
compels the defendant to performance of certain acts required to do.

Discretionary Powers

The jurisdiction to issue a mandatory injunction is a discretionary jurisdiction which

can be exercised only in a case which falls strictly within the four corners of section
55. In case of grant of mandatory injunction the decision must depend to a very
extent on the facts of each particular case. The court would not grant mandatory
injunction if the public good secured by its exercise is comparatively much smaller
than the loss suffered by the individual.

Parties must be heard

Where Hon’ble High Court appeared to have acted in haste in the issuance of such
injunction without affording opportunity of hearing to opposite side order in
question was not sustainable.

Mandatory injunction ought not to be granted as interim relief

Mandatory injunction cannot be granted by way of interim relief as a grant of such

injunction would be tantamount to a grant of final relief which would seriously
prejudice the defendant. However, mandatory injunction can be granted in
exceptional circumstances, for saving life etc but that can be granted to restore the
status quo on the date of filing of suit and not before the same.

Parties to be affected must be impleaded

The court has essentially to adjudge if plaintiff’s cause has any legal basis and
whether the prayer made can lawfully be granted. Court has to see whether effective
decree could be passed in the terms prayed for only against the persons or parties
arrayed as defendant where such persons were deleted or were not impleaded as co-
defendants. Plaintiff could not succeed in his cause even if he had a genuine
grievance and a justifiable basis for his claim.
Injunction when refused

An injunction cannot be granted-

(a) 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;

(b) to restrain any person from instituting or prosecuting any proceeding in a court
not subordinate to that from which the injunction is sought;

(c) to restrain any person from applying to any legislative body;

(d) to restrain any person from instituting or prosecuting any proceeding in a criminal
matter;

(e) to prevent the breach of a contract the performance of which would not be
specifically enforced;

(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear
that it will be a nuisance;

(g) to prevent a continuing breach in which the plaintiff has acquiesced;

(h) when equally efficacious relief can certainly be obtained by any other usual mode
of proceeding except in case of breach of trust;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him
to the assistance of the court;

(j) when the plaintiff has no personal interest in the matter.

Conclusion

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.
Bibliography

Equity, Trust and Specific Relief Act By Durga Das Basu

The Specific Relief Act, 1877
https://en.wikipedia.org/wiki/Injunction
http://www.legalservicesindia.com/article/1588/Basic-Principles-of-Law-of-
Injunctions-in-India.html
https://www.advocatekhoj.com/library/bareacts/specificrelief/41.php?Title=
Specific%20Relief%20Act,%201963&STitle=Injunction%20when%20refus
ed
https://blog.ipleaders.in/types-injunctions-indian-law/
http://www.legalservicesindia.com/article/1588/Basic-Principles-of-Law-of-
Injunctions-in-India.html