(Sections 38-42)
(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 favour, whether expressly or by implication.
(2) when any such obligation arise from contract, the court shall be guided by the rules and provisions contained in chapter II.
(3) when the defendant invades or threaten 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 exist 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.
Illustrations
1. A lets certain land to B, and B contracts not to dig sand or gravel there-out. A may sue for injunction to restrain B from digging in violation of his contract.
2. A trustee threatens to a breach of trust. His co-trustee, if any, should, and the beneficial owner may, sue for an injunction to prevent the breach.
3. The director of a public company are about to pay a dividend out of capital or borrowed money. Any of the shareholders may sue for an injunction to restrain them.
4. The directors of a fire and insurance company are about to engage in Marine Insurance Co. Any of the shareholders may sue for an injunction to restrain them.
5. A, an executor, through misconduct or insolvency, is bringing the property of the deceased into danger. The court may grant an injunction to restrain him from getting in the assets.
6. A trustee for B, is about to make an important sale of small part of the trust property. B may sue for an injunction to restrain the sale even though compensation in money would have afforded an adequate relief.
7. A is B's medical advisor. He demands money of B which B declines to pay. A then threatens to make known the effect of B's communications to him as patient. This is contrary to A's duty and B may sue for an injunction to restrain him from so doing.
8. A lets certain arable lands to B for purpose of husbandry, but without any express contract as to mode of cultivation. Contrary to the mode of cultivation customary in the district. B threatens to sow the lands with seeds injurious thereto and requiring many years to eradicate. A may sue for an injunction to restrain B from sowing the land in contravention of his implied contract to use them in a husband like manner.
9. A, B and C partners, the partnership being determinable at Will. A threatens to do an act tending to the destruction of the partnership property. B and C may, without seeking a dissolution of the partnership, sue for an injunction to restrain A from doing the Act.
10. A, a Hindu widow in possession of her deceased husband's property commits destruction of the property without any cause sufficient to justify her in so doing. The heir expectant may sue for an injunction to restrain her.
Sunil Kumar v. Ram Prakash, MANU/SC/0521/1988 : AIR 1988 SC 576: The Supreme Court observed that a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparceners has got the remedy challenging the sale and getting it set aside in a suit subsequent to the completion of the sale.
Cotton Corporation of India Ltd. v. United Industrial Bank Ltd., MANU/SC/0375/1983 : AIR 1983 SC 1272: An interim relief can be granted only in aid of and as ancillary to the main relief. If find relief cannot be granted in the terms sought for, a temporary relief of the same nature cannot be granted.
Saraswathi Ammal v. Viveka Primary School, MANU/TN/0737/2001 : AIR 2001 Mad 417: The tenant filed a suit to obtain permanent injunction to a restrain the landlord from evicting him permanently. It was held that such an action was not maintainable as it was aimed at casting embargo on landlord's right to enjoy legal right in respect of his property.
Kanahiyalal v. Babu Ram, AIR 2000 SC 3507: The Supreme Court has been held that in a suit for permanent injunction regarding partition of property, the partition deed contemplated giving use of gallery to one of the co-owners. It was held that condition in the partition deed binds not only the two co-owners but their successor-in-interest also. Hence issue of permanent injunction restraining successor in interest of the other co-owner was valid.
Kaliappan v. Durai, AIR 1988 Mad 65 (67): When the plaintiff seeks injunction to restrain defendants from encroaching on his property having entitlement in Government poromboke lands and the defendants are encroaching upon said lands and putting thereon thatched huts, since the said encroachment is very near to plaintiff's is land, he apprehends encroachment upon his land, in such circumstances the plaintiff would be entitled to permanent injunction restraining defendants from encroaching or interfering with peaceful possession of plaintiff's property.
M.S. Madhusoudhanan v. Kerala Kaumadi Pvt. Ltd., AIR 2004 SC 909: The Supreme Court observed that this strange piece of reasoning appears to proceed on the basis that the period of limitation for extinction of a possessory right is two years which it is not
Ramji Rai v. Jagdish Mallah, MANU/SC/8755/2006 : AIR 2007 SC 900: Where in a suit for permanent injunction to restrain interference with possession, no proper for declaration of title against the plaintiff made, it has been held by the Supreme Court that in such suits prayer for declaration of title was not necessary. The court should, in such suits, confine their finding regarding possession only. Any finding on title is not required to be made.
Maria Colaco v. Alba Flore Herminda D'Souza, MANU/SC/7170/2008 : AIR 2008 SC 1965: Where after the death of owner, plaintiff is in possession of the property and the defendant assumes contract and makes construction but on protest by the plaintiff, the defendant stops the construction for sometime, it reflects that the defendant is not sure of his title or rights hence in such a case grant of injunction for restraining the defendant will not be improper.
When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
Illustrations
1. A, by new building obstructs lights to the access and use of which B has acquired a right under the Indian Limitation Act. B may obtain an injunction, not only to restrain A from doing on with the Buildings but also to pull down so much of them as obstruct B's lights.
2. A builds a house with eaves projecting over B's land B may sue for an injunction to pull down so much of the eaves as so project.
3. A is B's medical advisor. He demands money of B which B declines to pay. A then threatens to make known the effects of B's communications to him as a patient. B may sue for an injunction to restrain him from so doing. The court may also order A's letter to be destroyed.
4. A, a very eminent man writes letter on family topics to B. After the death of A and B, C who is B's residuary legatee, proposes to make money by publishing A's letters. D who is a A's executors, has a property in the letters, and may sue for an injunction to restrain C for publishing them. The court may also order A's letter to be destroyed.
5. A threatens to publish statements concerning B which would be punishable under chapter XXI of Indian Penal Code, 1860. The court may grant an injunction to restrain the publication, even though it may be shown not be injurious to restrain the publication.
6. A, being B's medical advisor, threatens to publish B's written communication with him, showing that B has led an immoral life. B may obtain an injunction to restrain the publication.
7. In the cases mentioned in 5 and 6 to this section, the court may also order the copies produced by piracy, and the trade marks statements and communications, therein respectively mentioned to be given up or destroyed.
A mandatory injunction forbids the defendant to permit the continuance of a wrongful state of things by ordering to under that which has been done or to do a particular act to restore things to their former condition.
According to shell- Mandatory injunction is an injunction to restrain, that continuance of some wrongful omission justice can be done by issuing a mandatory injunction ordering the act to be undone.
T. Prasad v. P.D. Punnoose, MANU/KE/0032/1995 : AIR 1995 Ker 157: The plaintiff sued for injunction against the defendant for restraining him from destroying the boundaries of his property. The evidence showed that by trespass the defendant had not only in disregard of the property rights of the plaintiff had destroyed the boundary wall of the land of the plaintiff but also that the trespass was continuing. The Trial Court granted permanent prohibitory injunction.
In a suit for mandatory injunction, the burden of proof lies on the plaintiff. If he fails to discharge the burden, he will not be entitled to the relief of injunction. He cannot get the relief of injunction on the ground that the defendant has failed to prove his case.
S. Narayana Rao v. R. Narsinga Rao, MANU/KA/0003/1995 : AIR 1995 Kant 11: Where in a permanent suit for injunction, restraining the defendants from causing nuisance to plaintiff by construction of septic latrines, the injury was actionable per se, the damages could be presumed.
"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."
Illustrations
(a) A seeks an injunction to restrain her partner, B from receiving the partnership debts and effects. It appears that A had improperly possessed himself of the books of the firm and refused B to assess them. The court will refuse the injunction.
(b) A manufactures and sells crucibles, designating them as "patent plumb-age crucibles" though in fact they have never been patented. B pirates the designation. A cannot obtain an injunction to restrain the piracy.
(c) A sells an article called "Mexican Balm" stating that it is compounded of diverse rare essence, and the sovereign medical qualities. B commence to sell a similar article to which he gives a name and description such as to lead people into belief that they are buying A's Mexican Balm. A sues B for an injunction to restrain the same, B shows that A's Mexican Balm consists of nothing but scented hog's lord. A's use of description is not an honest one and he cannot obtain an injunction.
Premji Rataney Shah v. Union of India, MANU/SC/0819/1994 : (1994) 5 SCC 547 (550): Under section 41, the interest of right not shown to be in existence, cannot be protected by injunction.
"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 expresses or implied, not to do a certain act, the circumstances 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."
Illustrations
(a) A contracts to sell to B for Rs. 1000 the goodwill of a certain business unconnected with business premises, and further agrees not to carry on that business in Calcutta. B pays A the Rs. 1000 but A carried on the business in Calcutta. The court cannot compel A to send his old customers to B, but B may obtain an injunction restraining A from carrying on the business in Calcutta.
(b) A contracts to sell B the goodwill of a business. A then sets up a similar business class by B's shop and solicits his old customers to deal with him. This is contrary to his implied contract and B may obtain an injunction to restrain A from soliciting the customers, and from doing any act whereby their goodwill may be withdrawn from B.
(c) A contracts with B to sing for twelve months at B's theatre and not to sing in public elsewhere. B cannot obtain specific performance of the contract to sing, but he is entitled to an injunction restraining A from singing at any other place of public entertainment.
(d) B contracts with A that he will serve him faithfully for twelve months as a clerk. A is not entitled to a decree for specific performance of this contract. But he is entitled to an injunction restraining B from serving a rival house as clerk.
Kerr Observes.-If there is a negative covenant, the court has as a general rule, no discretion to exercise.....unless proceedings have been taken or are threatened against the vendor to enforce the restrictive covenants, the vendor has no cause of action for the purchaser's breach of his covenant.
Section 42 presupposes that a contract is composed of three ingredients-
(a) an affirmative agreement to do certain act,
(b) a negative agreement not to do a certain act and the negative part must be capable of being separated from the rest of the contract, and
(c) the plaintiff must have fully carried act his part of the contract.
Conditions necessary for the applicability of section.-It is essential-
(1) the contract should compromise of two agreements, one affirmative and the other negative,
(2) both the agreements must be divisible,
(3) the negative agreement must relate to a specific act, it should not be general negative of a stipulation,
(4) the court should be unable to compel specific performance of the affirmative agreement,
(5) the plaintiff must not have failed to perform the contract so far as it is binding on him.
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