Law Notes 16mrks

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Law of Contract


Imageby Yukta Kumarkar

1. Introduction:

As per Section 36 of the Specific Relief Act, preventive relief is granted at the discretion of the court by temporary or perpetual injunction. It is an order of the court preventing a party from doing something which he is under a legal duty not to do. The jurisdiction of the court to grant injunction would be at its discretion to grant or refuse such relief.

2. Types of injunction:

a) Temporary injunction-

They are to continue until a specified time or until the further order of the court and may be granted at any stage of a suit and it is regulated by the Code of Civil Procedure. The plaintiff has to prove prima facie that the case is in his favour along with balance of convenience so that mischief to be caused by the defendant is prevented. The grant of a temporary injunction may be made by either party to the suit under Order 39, Rule 1 of the Code of Civil Procedure.

b) Perpetual injunction-

Section 37(2) provides for a provision which states that a perpetual injunction can only be granted by a decree made at the hearing and upon merits of the case. It can be granted based on the rules mentioned under section 38.

1) To prevent the breach of an obligation existing in plaintiff’s favour

2) If any obligation arises from the contract

3) The defendant invades or threatens to invade plaintiff’s property thereby depriving him of his right to enjoyment of property.

c) Prohibitory injunction-

Section 38 states that, ‘A prohibitory injunction prohibits or forbids the doing of some act and it may be granted to the plaintiff to prevent breach of an obligation existing in his favour.

d) Mandatory injunction-

When it is necessary to compel the performance of certain acts which the court is capable of enforcing then in that case the court may in its discretion grant an injunction to prevent the breach of complaint and to compel the performance of the requisite acts. Section 39 provides this clause. In order to obtain mandatory injunction, the burden of proof is on the plaintiff to prove his own case.

3. Damages in lieu of or addition to injunction: (Section 40)

The plaintiff in a suit may claim damages for perpetual injunction or mandatory injunction under section 38 and 39 respectively. If the court thinks fit, it may award for such damages. No relief for damages shall be granted unless the plaintiff has claimed such relief in his plaint.

4. When can an injunction not be granted:

As per Section 41 of the Specific Relief Act, an injunction cannot be granted under following situations:

a. To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought unless the restraint is necessary to prevent multiplication of proceedings

b. To restrain any person from instituting or prosecuting any proceeding in a court from which the injunction is sought

c. To restrain any person from applying to legislative body

d. To restrain any person from instituting or prosecuting any proceeding in a criminal matter

e. To prevent the breach of 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 nuisance

g. To prevent a continuing breach in which the plaintiff has acquiesced

h. When equally efficacious relief can 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 to disentitle him to the assistance of the court

j. When the plaintiff has no personal interest in the matter

5. Injunction to perform negative agreement-

Section 42 provides an exception to the clause contained in section 41(e) and is comprised of two parts i.e. positive agreement to do a certain act and negative agreement to not do a certain act.