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Preventive Relief is an important equitable remedy provided under the Specific Relief Act, 1963. It consists of a grant of temporary, perpetual and mandatory injunction. The court has to balance the interests and rights of both the parties before acceding to the claim of the plaintiff that his or her rights are endangered thus need protection.
I. Introduction – Preventive Relief under the Specific Relief Act 1963
Part 3 of the statute, Specific Relief Act, 1963 (hereinafter “the Act”) concerns the preventive relief that is granted by the law as equitable relief. The two types of injunctions, namely, temporary and perpetual injunction have been catered to in Chapter 7 and 8 of the statute respectively.
When a person fears an infringement of his or her right due to possible injury, can ask for a remedy from the court in this nature of the preventive relief. It is an injunction which is granted by the court. Such an injunction is different from a specific performance. The former is restraint of the defendant from committing a breach of negative obligation. The latter is a compulsion of the defendant to perform a positive obligation under the contract.[1]
The following article would examine the legal provisions under the act concerning preventive relief along the jurisprudential principles and concepts concerning injunctions.
II. Nature of remedy – Preventive Relief
An injunction is claimed against a person so as to restrain him or her from doing or undertaking some act. Thus, its nature is that of in personam.[2]
This remedy can be enforced, therefore, only against the person who was a party to the contract and not against anyone else in the absence of the statutory provision.[3] Such an injunction affecting the land would not run with the land binding the third person who enters in a transaction pertaining to the land.[4]
Thus, personal action should, as it usually, dies with the person. But, under specific statutory situations, the remedy can be enforced against third persons also. Under section 50 of the Code of Civil Procedure, 1908 (legal representatives of deceased judgment debtor) and section 52 of the Transfer of Property Act, 1882 (transferee pendente lite), action can be initiated against the respective parties as mentioned in the parenthesis.[5]
The reason for incorporating such an exception in the law is that it is considered against public policy to have the decree-holder initiate the litigation process again from the beginning against the legal representative of the deceased judgment debtor.[6]
Injunctions are usually granted when the damages or the compensation do not constitute to be adequate relief.[7] But, on the other hand, damages would be sufficient, when the injury is small, capable of being estimated, the possibility exists of adequate money payment and balance of convenience rests in favor of plaintiff.[8]
Another essential nature of this remedy is that it is discretionary in nature and the discretion of the court is guided by settled judicial principles and cannot be arbitrary.[9] The remedy, therefore, cannot be granted as a right by the plaintiff and depends on the court’s judicial discretion.[10] It is a settled jurisprudential standard that the grant of such relief would depend upon the reasonable circumstances if a particular case.[11]
The court weighs the substantial mischief done with the situation injunction would lead to and then grant the remedy.[12] It is not bound to grant the remedy merely because it is lawful to do so.[13] As stated earlier, it is an exercise of the question of fact which has to be judicially determined by the court.
III. Jurisdiction of the court to grant Preventive Relief
The court before granting the remedy must have jurisdiction over the person of the defendant.[14] It can also be granted over a defendant residing outside its jurisdiction if his or her property is situated within its jurisdictional limits.[15]
Special statutes can also bar the jurisdiction of the civil court to take up a suit[16] or to issue an injunction.[17] Even in matters concerning arbitration, only to the extent of the permissibility of the Arbitration and Conciliation Act, the intervention by the civil court would be allowed.[18]
A statute can confer the jurisdiction upon a special court or tribunal so as to grant the nature of relief as that of an injunction. The question of whether such jurisdiction is vested or not is determined according to the provisions of the statute.[19] A case can be required to be settled or decided by the authorities referred under the statute for governing the cases.[20]
IV. How the injunction is granted
Section 36 of the act governs the manner in which the injunction would be granted. Such relief is granted at the discretion of the court through an injunction, temporary or temporary.[21] The principles governing both these types of injunctions are essentially the same, though the considerations applying to these two types are different.[22]
Since this remedy is equitable relief, the court has to consider both the sides. Thus, the plaintiff is bound to approach the court with clean hands. It means that there should not be anything blameworthy on the part of the plaintiff when he or she seeks a remedy from the court.[23]
V. Types of Injunction
As mentioned in section 37 of the act, there are two types of injunctions, namely, temporary and perpetual. The former continues “until a specified time or further orders of the court, at any stage of the suit.” The latter perpetually “enjoins defendant from the assertion of right or commission of act contrary to rights of the plaintiff through a decree made after hearing on merits.”[24]
A temporary injunction is also known as interim or interlocutory injunction. As the name suggests, it is to preserve matters which are pending litigation and help in maintaining the status quo. The intention is delay something being done that would cheat the plaintiff of his or her lawful rights.[25] It keeps the things as they are at the moment, stops the mischief complained of and stays further injury.[26]
If the uncertainty would be resolved in the plaintiff’s favour at the trial, the damage done could not be adequately compensated through the means of compensation.[27] Thus, there is a huge importance of an interlocutory injunction. The ultimate purpose is to “prevent the ends of justice from being defeated.”[28]
In a perpetual injunction, it is issued after the final determination of the rights of the parties. In respect of every infringement of rights, such an injunction would extinguish the need of bringing a action after action.[29] Since the remedy is granted by virtue of a decree, the remedy for its disobedience lies in execution stage.[30]
The court grants this relief only after hearing both sides, on all aspects concerning the case that is on merits.[31]
A. Temporary Injunction
In the landmark case of Gujarat Bottling Co v. Coca Cola Co[32], the Supreme Court has laid down the three essential tests for granting the temporary injunction, that is-
- Whether the plaintiff has a prima facie case;
- Whether the balance of convenience is in favour of the plaintiff; or
- Whether the plaintiff would suffer an irreparable injury if his prayer for an interlocutory injunction is disallowed.[33]
The court does not grant this relief merely on the ground of sympathy or hardship but considers all the situations in totality. When the case concerns the demolition of a building, after establishing prima facie case, the balance of convenience automatically shifts in favour of the plaintiff to preserve the status quo. But, if patently, the structure is unauthorised, the court will not grant such a relief.[34]
The court can also grant this injunction along with a direction to not establish a new state of things.[35] Such an injunction would be called a temporary mandatory injunction. Further, this remedy can also be granted in aid of specific performance. There must be a clear and undisputed contract and the court can restrain the vendor from dealing with the property.[36]
Supreme Court has laid down the directions in case of ex parte injunction, wherein the court can issue the same for a small specified time and the plaintiff would have to pay the market rent in case the suit is dismissed.[37]
But it is crucial to remember, once the suit is dismissed, all the interim orders passed in relation to the suit also come to an end automatically.[38]
B. Perpetual Injunction
The obligation existing in favour of the plaintiff would have to be established clearly.[39]In case the plaintiff seeks the remedy against trespass, there is a categorical requirement under the law to provide for proof of possession and title over the property.[40]
The word obligation is of a wide import and includes every duty enforceable by law.[41] It is like a tie or a bond which constrains a plaintiff to do or suffer something.[42] Mere apprehension of injury would not be sufficient and the plaintiff would have to demonstrate the act complained of as violative of the plaintiff’s right and if allowed, would result in such violation.[43]
This injunction can be manifested in multiple forms, preventing the breach of contract. In one of the cases, the court restrained the respondents from withholding the TV signals for the cable operators (the plaintiff). The ground taken by the court to justify the ground of irreparable injury was that the signals were having special value to the plaintiff and were not easily obtainable in the market.[44]
There can be multiple and independent situations wherein this type of injunction can be granted. It can be when the defendant threatens to invade the plaintiff’s right to or enjoyment of property when the defendant can be a trustee of the property, no standard of ascertainment of the actual damage, and no monetary relief would be sufficient for injury and injunction is necessary to prevent multiplicity of proceeding.[45]
C. Mandatory Injunction
Under Section 39 of the act, the court can compel the performance of requisite acts and prevent the breach complained of.[46] Sir Jessel in his famous exposition[47] has explained the purpose of such a mandatory order. It was found in the cases of nuisance wherein the court has to enjoin the defendant from making the noise.
There are two elements that the court has to consider before granting the remedy of mandatory injunction. Firstly, the act mandated by the court must be necessary to prevent the breach of an obligation and secondly, the court must be capable of enforcing it.[48]
Since money would not constitute to be an adequate relief, the court usually grants this relief which mandates the defendant to perform an act.[49] It casts a huge responsibility upon the court to be satisfied with the grounds and exercise its discretion whereby the plaintiff need to come to the court with clean hands.[50]
VI. Miscellaneous Provisions
Under the act, damages can also be issued in lieu of or in addition to an injunction. The plaintiff has to specifically claim this remedy along with the relief of mandatory or perpetual injunction.[51] The legal rights vested in a person cannot be snatched away by virtue of an injunction. Example- instituting proceedings in court, applying to a legislative body or where the plaintiff himself or herself has acquiesced.[52]
An agreement can be for performing an affirmative or negative portion of the same. If the former is not enforceable, the court is not precluded from enforcing the negative agreement.[53]
VII. Various other types of reliefs
Whenever there is a cloud as to the title of the property of the person, the correct remedy to seek from the court is a declaration of the title of the plaintiff.[54] In such a remedy, the prerequisite is the nature or character of interest to be disputed.[55] When the court cannot grant an injunction, it is deemed appropriate to grant a declaration.[56]
When there are serious apprehensions that a defendant after getting a forewarning of legal action can destroy critical evidence, the court can issue an Anton Pillar order, ex parte in nature, to permit the plaintiff to enter the premises and remove that critical evidence.[57]
When it is likely for the plaintiff to get a judgment against the defendant for a certain or approximate sum, the defendant having assets to meet the judgment but may deal with them otherwise, the court can issue Mareva injunction.[58] It is ex parte, interlocutory can be oral, which restrains the defendant from disposing of assets to defeat the judgment.[59]
When the defendants are unknown, usually in cases of intellectual property rights, court issues John Doe order.[60] Plaintiff (owner of intellectual property) can take action against anyone who is found infringing plaintiff’s rights can search his or her premises, recover evidence on infringement accordingly.[61]
Conclusion – Preventive Relief under the Specific Relief Act 1963
The injunction being an equitable relief demands a cautious approach by the court. It has to weigh the rights of the parties, the plaintiff as well as the defendant so as to come to a conclusion whose rights are endangered and who needs to be mandated.
References
[1] 44(1) Halsbury Laws of England 462 ¶ 803.
[2] Kushi Ram v. Lal Man, AIR 1983 Del 78.
[3] Amritlal Vadilal v. Kantilal Lalbhai, AIR 1931 Bom 280.
[4] A.G. v. Birmingham, Tame and Rea Drainage Board, (1881) 17 Ch D 685 (CA).
[5] Ramchandra Deshpande v. Laxmana Rao Kulkarni, AIR 2000 Kant 298.
[6] Prabhakar Adiga v. Gowri, (2017) 4 SCC 97.
[7] Boyson v. Deane, (1898) 22 Mad 251.
[8] Charles J Wills v. Central Railway Corporation of Canada, AIR 1914 PC 249.
[9] Manilal Ratanchand Shah v. Nanubhai Jesingbhai, AIR 1947 Bom 394.
[10] Executive Committee of Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888.
[11] Warner Brothers Pictures Inc v. Nelson, (1936) 3 All ER 160.
[12] Shamnugger Jute Factory Co. Ltd. v. Ram Narain Chatterjee, (1886) ILR 14 Cal 189.
[13] Jogendra Nath Mandal v. Adhar Chandra Mondal, AIR 1951 Cal 412.
[14] Hashim Osman v. Phapubai, AIR 1931 Sind 136.
[15] Jumna Dass v. Harcharan Dass, (1911) 38 Cal 405.
[16] Administration of Evacuee Property Act, 1950, § 17, No. x, Acts of Parliament, 1950 (India).
[17] Essential Commodities Act, 1955, § 7A, No. x, Acts of Parliament, 1955 (India).
[18] Arbitration and Conciliation Act, 1996, § 5, No. x, Acts of Parliament, 1996 (India).
[19] Munni Sao v. K.D. Sharma, AIR 1993 Pat 114.
[20] Illinka Venkatayya v. Adi Kishtayya, AIR 1956 Hyd 192.
[21] Specific Relief Act, 1963, § 36, No. 47, Acts of Parliament, 1963 (India).
[22] Puran Chand Sant Lal v. Nitya Nand, AIR 1958 Punj 460.
[23] Seema Arshad Zaheer v. Municipal Corp of Greater Mumbai, (2006) 5 SCC 282.
[24] Specific Relief Act, 1963, § 37, No. 47, Acts of Parliament, 1963 (India).
[25] Shamboo Nath v. Sardar Kapoor Singh, AIR 1967 J&K 52.
[26] 11 Halsbury’s Laws of England ¶ 334 (2009).
[27] Gujarat Bottling Co Ltd v. Coca Cola Co, (1995) 5 SCC 545.
[28] Code of Civil Procedure, 1908, § 94, No. 8, Acts of Imperial Legislature, 1908 (India).
[29] 11 Halsbury’s Laws of England ¶ 333 (2009).
[30] Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307.
[31] Nanabhai Ganpatrav Dhairyavan v. Janardhan Vasudev, (1886) ILR 12 Bom 110.
[32] Gujarat Bottling Co v. Coca Cola Co, AIR 1995 SC 2372.
[33] Daily Gazette Press Ltd v. Karachi Municipality, AIR 1930 Sind 287.
[34] Seema Arshad Zaheer v. Municipal Corp of Greater Mumbai, (2006) 5 SCC 282.
[35] Ramchandra Tanwar v. Ram Rakhmal Amichand, AIR 1971 Raj 292.
[36] GMNCO Ltd v. Ravi Gupta, AIR 2001 Del 409.
[37] Maria Margarida Sequeria Fernandes v .Erasmo Jack de Sequeria, AIR 2012 SC 1727.
[38] Jagdhari v. Vth Addl Distt Judge Azamgarh, AIR 1992 All 368.
[39] Specific Relief Act, 1963, § 38 (1), No. 47, Acts of Parliament, 1963 (India).
[40] EN Chandran v. Valsan Matathil, 2017 SCC OnLine Ker 48.
[41] Bhudeb Mookerjee v. Kalachand Mallik, AIR 1921 Cal 129.
[42] State Bank of Bikaner v. Ballabh Das & Sons, AIR 1984 Raj 107.
[43] Hyderabad Stock Exchange Ltd v Rangnath Rathi & Co, AIR 1958 AP 43.
[44] Jabalpur Cable Networks Pvt Ltd v. ESPN Software India Pvt Ltd, AIR 1999 MP 271.
[45] Specific Relief Act, 1963, § 38 (3), No. 47, Acts of Parliament, 1963 (India).
[46] Id. at § 39.
[47] Smith v. Smith, (1875) LR 20 Eq 500.
[48] Lakshmi Narain Banerjee v. Tara Prasanna Banerjee, (1904) 31 Cal 944
[49] District Board of Manbhum v. Bengal Nagpur Rly Co, AIR 1945 Pat 200.
[50] Haridas Mundra v. National and Grindlays Bank Ltd, AIR 1963 Cal 132.
[51] Specific Relief Act, 1963, § 40, No. 47, Acts of Parliament, 1963 (India).
[52] Id. at § 41.
[53] Id. at § 42.
[54] Anathula Sudhakar v. P Buchi Reddy, (2008) 4 SCC 594.
[55] Sri Dasnam Naga Sanyasi v. Allahabad Development Authority, AIR 1995 All 418.
[56] Government of Gibraltar v. Kenney, (1956) 3 All ER 22.
[57] Anton Piller K.G. v. Mfg Processes Ltd, (1976) 1 All ER 779 .
[58] Mareva Compania Naviera S.A. v. International Bulkcarriers SA, Mareva, (1980) 1 All ER 213.
[59] Popular Jute Exchange Ltd v. Murlidhar Ratanlal Exports Ltd, (2006) 4 CHN 381.
[60] Eros International Media Ltd v. Bharat Sanchar Nigam Ltd, 2016 SCC OnLine Bom 10316.
[61] Januki Kumari JB Rana v. Ashok Kumar, 2017 SCC OnLine Del 7533.
