TABLE OF CONTENTS

Sr. No. Particulars Page No.

TEMPORARY INJUNCTION AND MANDATORY INJUNCTION

1. Introduction 1
2. Objective 1

TEMPORARY INJUNCTION
3. Description 2
4. Scope 2
4.1 Case law : Ramji Rai v. Jagdish Mallah 2
4.2 Refusal 3
5. Criteria 3
5.1 Case law : Ambalal Sarabhai. v. Ks Infraspace 3
6. Conclusrion 4

MANDATORY INJUNCTION
7. Description 5
8. Scope 5
8.1 Case law : Sujit Pal v. Prabir Kumar Sun 5
9. Criteria 6
9.1 Case law : Chinnappa vs Srinivsa Reddy 6
10 Damages 7
11. Conclusion 7

12. Bibliography 8

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 TEMPORARY INJUNCTION AND MANDATORY INJUNCTION

1. INTRODUCTION
Injunction is a remedy in the form of a court order that compels the defendant to perform or
refrain from performing specific acts. Bouvier’s Law Dictionary states that ‘An injunction is
a prohibitory writ restraining a person from committing or doing an act which appear to be
against equity and conscience’ 1. An injunction is defined in Halsbury's Laws as : “ A judicial
process whereby a party is ordered to refrain from doing or to do a particular act or thing.”2

An injunction is generally granted for the purpose of preventing a wrong or preserving

property in dispute. It can prohibit future violations of the law, such as trespass to real
property, infringement of a patent etc. When deciding whether to give an injunction courts
give special attention to questions of fairness, good faith and public interest. The grant of
injunction is at the discretion of the court and it cannot be claimed as a right.

While considering whether to grant injunction, court applies tests as a prima facie case,
balance of convenience, irreparable damage and also conduct of the plaintiff are the
important tests to be passed. The relief of injunction may be refused on the ground of delay,
laches or whether the applicant has not come with the clean hands, or where monetary
compensation is adequate relief. In Indian legal system, the matters of injunctions are mainly
governed by CPC and Specific Performance Act

On the grounds of the duration and the stage of the suit, injunctions can be classified in to
Temporary injunctions and Perpetual injunctions. On the basis of its operation it can be
further classified as Mandatory injunction and prohibitory injunctions as Mandatory
injunction compels a conduct and prohibitory injunctions prohibit conduct.

2. OBJECTIVE
1. To understand the scope of injunction.
2. To study the criteria for grant and refusal of injunction.
3. To analyze the case laws and understand court’s interpretation.

TEMPORARY INJUNCTION
1
John Bouvier, A Law dictionary, Rev sixth edition, 1856 at 940
2
http://www.lawfultalks.com/injunctions/

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3. DESCRIPTION
Temporary injunction is a provisional remedy that compels a party to do or refrain from
specific act. The main reason for application of temporary injunction is for immediate relief.
Its purpose is to prevent any breach or dissolution of plaintiff’s rights.
Temporary injunction continues for specific time or until the further order of the court or till
disposal of the suit. It can be granted at any stage of a suit on application of the party.

4. SCOPE
The grant of temporary injunction is regulated by the Rule 1 and 2 of Order XXXIX of Code
of Civil Procedure 1908 and section 36 to 42 of Specific Relief Act 1963. Also, Section 151
of CPC gives inherent powers and Section 94(c) of CPC gives supplemental provisions for
grant of temporary injunctions.
As per rule 1 of Order XXXIX of CPC
The court can grant a temporary injunction to restrain or prevent such act if
Any suit is proved by affidavit or
(a) property in dispute is in danger of being wasted, damaged or alienated by any party to
the suit or
(b) The defendant threatens or intends to remove or dispose of the property in dispute or
(c) The defendant threatens to dispossess the plaintiff or cause injury to the plaintiff in
relation to the property in dispute in the suit.
As per rule 2 of Order XXXIX of CPC
The plaintiff can apply to the Court for temporary injunction to restrain the defendant
from committing the breach of contract or injury complained of or relating to the same
property or right

4.1 Case law : Ramji Rai v. Jagdish Mallah

Facts - The plaintiff- appellant filed a suit claiming that his construction of boundary wall
to sehan land was obstructed by the defendant. The defendant claimed that he had
possession of the land and had construction of the wall. Trial court held that the plaintiff
was owner and possessor of the land. Defendant’s appeal in Lower Appellate Court was
allowed stating that plaintiff had failed to prove his possession and title. The plaintiff’s
appeal in High Court was dismissed. The plaintiff filed a suit in Supreme Court and
argued that lower court and High Court had erred in holding that the plaintiff failed to
prove his title and possession3.
Issue – Whether the Lower Appellate Court and High Court erred in holding
3
Ramji Rai v. Jagdish Mallah https://indiankanoon.org/doc/1623517/

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 Verdict – Plaintiff’s appeal disallowed.
Analysis – The Court found that the plaintiff had failed to establish the possession of the
disputed land or construction of wall on disputed land. So, the plaintiff is not proved to be
owner of the land. Injunction refraining disturbances of possession will not be granted if
the plaintiff had no possession. Therefore the plaintiff is not entitled to get any relief.
It seems that the plaintiff was not a bona fide applicant; he could not satisfy the court that
he had a strong case as had no possession of the disputed land. His claim of injury was
not held as he had no title of the land. Hence court dismissed the appeal.

4.2 REFUSAL
As per section 41 of Specific Relief Act 1963, temporary injunction cannot be granted to
restrain any person from instituting or prosecuting any proceeding in the court or to
restrain from applying to any legislative body or to prevent the breach of contract or
when the plaintiff has no personal interest in the matter or conditions mentioned in the
section 41.

5. CRITERIA
While considering whether to grant injunction, court applies tests as a prima facie case,
balance of convenience, irreparable damage and also conduct of the plaintiff
While granting temporary injunction the tests be applied are
a. Whether the plaintiff has a prima facie case,
The Court should be satisfied that the dispute raised by the applicant is bona fide and
there is a probability that the applicant will be entitled to get relief he claimed. The
burden of the evidence lies on the applicant.
b. Whether the balance of convenience is in favour of plaintiff and
The court must be satisfied that the comparative mischief, hardship or inconvenience
which is likely to be caused to the applicant by refusing the injunction will be greater
than that which is likely to be caused to the opposite party by granting it
c. Whether the plaintiff would suffer irreparable injury
The court must be satisfied that refusal to grant injunction would result in 'irreparable
injury' to plaintiff and he needs to be protected from its consequences.
These three pillars form a foundation for grant or refusal of injunction. Apart from these,
conduct of the plaintiff is also an important factor.

5.1 Case law : Ambalal Sarabhai Enterprise ... vs Ks Infraspace Llp Limited

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 Facts - The plaintiff-respondent had negotiated with the defendant about sale of land and
paid advance, but the defendant sold land to third party. The plaintiff files a suit for
specific performance and civil court grant temporary injunction. High court affirms the
same. The plaintiff appealed and claimed that it had concluded contract with the
defendant and paid advance, but the defendant refund and sold land to third party. Delay
in filling the suit has not benefitted the plaintiff. The defendant contended that
negotiations did not attain finality and plaintiff had statutory liabilities. Suit is filed after
seven months and grant of injunction is against the principle4.

Issue – Whether the grant of injunction to plaintiff is sustainable

Verdict – Defendant’s appeal allowed

Analysis – Court clarified that only the prima facie case is not sufficient to grant an
injunction there should be irreparable injury to the plaintiff and balance of convenience
and conduct of the plaintiff are also important. Court found that there is no evidence that
the acceptance was communicated and ad idem between the parties was formed. The
court held that the contract cannot be considered as finalized as the plaintiff had not
discharged its obligations as negotiated. Even not remitting the refund and filing the suit
seven months later indicates that the plaintiff was not interested in deal. The court held
that the plaintiff had failed to show that it was not at fault and had not suffered irreparable
harm as other remedies are also available to him.

6. CONCLUSION

Temporary injunction is a provisional remedy that compels a party to do or refrain from

specific act and provides immediate relief. It is regulated by CPC 1908 and Special Relief
Act 1963. Prima facie case, balance of convenience and irreparable injury are the three pillars
that form a foundation for grant or refusal of injunction.

MANDATORY INJUNCTION

4
Ambalal v. KS Enterprises https://indiankanoon.org/doc/51304221/

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7. DESCRIPTION
An injunction that requires a conduct is called mandatory injunction. It prevents the breach of
an obligation by compelling the performance of certain acts. Purpose of mandatory
injunction is to restore a wrongful state of things to their former rightful order, until the full
relief could be granted. A mandatory injunction can be granted on an interlocutory
application as well as at the hearing,

8. SCOPE
Mandatory injunctions are governed by Section 39 of the Specific Relief Act 1963. Though
this section does not define the mandatory injunction it deals with grant or refusal of it. The
case which strictly falls within the criteria as given in section 37 to 41 of Specific Relief Act
is eligible for grant of the mandatory injunction. The court in exercise of inherent power can
grant a mandatory injunction under section 151 of CPC.
The mandatory injunction is granted only when it is necessary to prevent breach of an
obligation and the court is capable of enforcing. A court can grant a mandatory injunction
when the plaintiff right of enjoyment of property is obstructed by an unlawful act of the
defendant and the plaintiff had extreme hardship. The court compels the defendant to restore
the things as they were at the time of filing the suit.

8.1 Case law : Sujit Pal vs Prabir Kumar Sun And Ors.
Facts - Plaintiff-Opposite, a tenant of the defendant’s room, filed a suit for tenancy rights
and permanent injunction. Lowe court granted temporary mandatory injunction directing
defendant to open lock and restore possession. Defendant violating injunction forcibly
dispossessed the plaintiff. The plaintiff’s application for temporary mandatory injunction
restoring the possession was allowed. Defendant appealed against the order and
challenged the jurisdiction of lower court arguing that it is not permissible to pass an
order u/s 151 of CPC when there is specific provision for the same5.
Issues – Whether the court has inherent power to grant a temporary mandatory injunction.
Verdict – Application for stay dismissed.
Analysis – The question before the court was whether the court has inherent power to
grant a temporary mandatory injunction for the purpose of granting relief to a person who
has been dispossessed despite an interim injunction. Court found that defendant’s act of
forcibly dispossessing the plaintiff is an utter violation of the interim injunction.
Injury to the plaintiff is grave and serious and restoring things to their former position is
the only remedy. Order 39 Rule 2A does not provide any immediate relief to party as the
plaintiff. But the very object of Order 39 Rule 2A will be fulfilled by grant of temporary
mandatory injunction and restoring possession. The provisions of code cannot control
5
Sujit Pal v. Prabhir Kumar https://indiankanoon.org/doc/983567/

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 inherent powers of the court. The court must not fold its hands and allow injustice to be
done. Court can, in exercise of its inherent power, pass such order for ends of justice as
would do the wrong done to the aggrieved party.

9. CRITERIA
The grant of mandatory injunction is confined to strong cases where money cannot
compensate the loss or serious injury caused by the defendant and restoring of things to their
former condition is the only remedy.
 While considering whether to grant injunction, court applies tests
a. The plaintiff has to demonstrate a strong case for trial,
b. The plaintiff has to prove that the loss or serious injury cannot be compensated with
the money and grant of mandatory injunction is only remedy.
c. The balance of convenience is in favour of the plaintiff as against the defendant.
 Apart from above tests, the two conditions must be fulfilled for grant of a mandatory
injunction u/s 39 of Specific Relief Act 1963.
a. The act, defendant obliged to perform, should prevent the breach alleged by the
plaintiff.
b. The requisite acts must be such as the court is capable of enforcing.
 Principles laid down in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors
A person has a right to protect his possession against any person who does not prove a
better title by seeking a prohibitory injunction. But a person in wrongful possession is not
entitled to an injunction against the rightful owner.
 For grant of mandatory injunction, the applicant is must by either of the party to the suit.

9.1 Case law : Chinnappa vs Srinivsa Reddy

Facts – The plaintiff-petitioner filed a suit in trial court for injunction restraining the
defendant from trespass on his land. The defendant moved an application in the same suit
for mandatory injunction to remove the fencing allegedly put during the pendency of the
suit. The plaintiff asserted that the fencing was old. The Trial court directed removal of
the fencing. The plaintiff’s appeal in the civil court got dismissed. The plaintiff appeal in
High court and contented that mandatory injunction could not be granted in the plaintiff’s
suit for preventive injunction and the Trial court had no jurisdiction in passing it6.
Issues - Whether trial court had jurisdiction to grant mandatory injunction

Verdict - Revision Petition is allowed

6
Chinnappa vs Srinivsa Reddy https://indiankanoon.org/doc/1713778/

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 Analysis - The question before the court was whether trial court had jurisdiction to grant
mandatory injunction. On, examining the provisions of Specific Relief Act regarding the
injunctions, court found that granting of preventive relief of injunction is undoubtedly at
the discretion of the court concerned but permanent injunction can only be granted by
way of a decree passed in the applicant’s suit after establishing his rights in the trial.
Court held that the defendant had not filed a suit for mandatory injunction rather he
moved an application in the suit filed by the plaintiff. Trial court without deciding on
fencing granted mandatory injunction. Court concluded that the trial court had not applied
provisions of Specific Relief Act correctly and not had committed a judicial error. Utmost
care must be taken in the matters if injunction and application of the claimant is must.

10. DAMAGES
The plaintiff in a suit for mandatory injunction u/s 39 of Specific Relief Act can claim
damages for injunction and court may award such damages at its discretion. But, if the suit
for mandatory injunction directing prevention of the breach of an obligation gets dismissed
then the plaintiff has no right to claim for such damages.
Where the court while exercising its discretion declines the grant of injunction, the court can
award damages though no damages may have been claimed by the Plaintiff. It is the court
that compensates the plaintiff for the relief so that the question of the plaintiff claiming
compensation does not arise. Section 40 of The Specific Relief Act states the circumstances
where the court can grant and reject damages as a relief in lieu of or in addition to the relief
of Injunction

11. CONCLUSION
Mandatory injunction prevents the breach of an obligation by compelling the performance
and restores a wrongful state of things to their former rightful order. Mandatory injunction is
governed by Section 39 of the Specific Relief Act 1963. The court in exercise of inherent
power can grant a mandatory injunction under section 151 of CPC.
The mandatory injunction is granted only when it is necessary to prevent breach of an
obligation and the court is capable of enforcing. Mandatory injunction can be grant only on
the application of either of the party to the suit..

12. BIBLIOGRAPHY

STATUTES

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 1. Specific Relief Act 1963
2. Code of Civil Procedure 1908

BOOKS
1. John Bouvier, A Law dictionary, Rev sixth edition, 1856 (PDF)

ARTICLES
1. https://districts.ecourts.gov.in/sites/default/files/pdm%20sompetadt07122019.pdf

WEBLIOGRAPHY
1. http://www.legalservicesindia.com/article/1177/The-Law-Relating-To-Injunctions.html#:
last accessed on 13/05/2021
2. https://blog.ipleaders.in/injunction-temporary/ last accessed on 13/05/2021
3. http://www.lawfultalks.com/injunctions/ last accessed on 13/05/2021
4. https://lawyog.com/injunction-under-sra/ last accessed on 13/05/2021

CASE LAWS
Ambalal v. KS Enterprises https://indiankanoon.org/doc/51304221/
Ramji Rai v. Jagdish Mallah https://indiankanoon.org/doc/1623517/
Chinnappa vs Srinivsa Reddy https://indiankanoon.org/doc/1713778/

Sujit Pal vs Prabir Kumar Sun And Ors. https://indiankanoon.org/doc/983567/