Introduction to Specific Relief
When a person's civil rights are violated, the law provides remedies. These remedies are generally of two types: (1) Compensatory, where the injured party is granted monetary compensation (damages) for the loss suffered, and (2) Specific, where the injured party is granted the exact relief they are entitled to, rather than monetary compensation. The Specific Relief Act, 1963 (SRA), is the primary legislation in India that deals with specific remedies available in civil law.
The Act is based on the principle of equity, aiming to provide just and appropriate relief in situations where awarding damages would not be an adequate remedy. It deals with remedies that a court can grant to compel a party to do the very thing they are obligated to do (e.g., perform a contract) or to prevent them from doing something unlawful.
Remedial Nature of the Act
The Specific Relief Act, 1963, is purely a remedial statute. It does not create new rights; it only provides remedies for the enforcement of existing civil rights. It assumes the existence of a legal right and provides the mechanism for its specific enforcement when other remedies (like damages) are insufficient or inappropriate.
For instance, the Indian Contract Act, 1872, creates the right arising from a contract. If the contract is breached, the normal remedy under Contract Act is damages. However, if damages are not an adequate remedy (e.g., contract for sale of a unique piece of land), the Specific Relief Act provides the remedy of specific performance, compelling the defaulting party to perform the contract as agreed. Similarly, rights related to property or personal status are created by other laws; the SRA provides specific ways to protect or restore those rights.
The Act is founded on equitable principles developed in English law, which recognize that monetary compensation is not always sufficient to put the injured party in the position they would have been in if the wrong had not occurred. In cases involving unique property (like land), personal obligations (where damages are hard to assess), or where a party is bound by a restrictive covenant, specific remedies are often the most appropriate way to achieve justice.
The remedies provided under the SRA are discretionary. A court is not bound to grant specific relief merely because it is lawful to do so. The court considers various factors, including the conduct of the parties, hardship, and whether granting the relief would be equitable, before deciding whether to grant specific performance, injunction, or other specific remedies.
Classification of Specific Relief
The Specific Relief Act, 1963, provides for different forms of specific relief that can be granted by civil courts. These remedies are categorized based on the nature of the right being enforced or protected and the action required from the defaulting party.
The Act is broadly divided into parts dealing with different types of specific relief:
Specific performance of contracts (Part II, Chapters II & III)
This is one of the most significant remedies under the Act. It is dealt with in Chapter II (Sections 9-25) and Chapter III (Sections 26-28).
Meaning: Specific performance is an order by the court compelling a party to a contract to perform the actual terms of the contract as agreed, rather than merely paying damages for the breach. It is granted when damages would not be an adequate remedy.
When specific performance may be granted (Section 10): The court may specifically enforce a contract when:
- Compensation in money is not an adequate relief for the non-performance (e.g., contract for sale of unique immovable property, shares in a private company).
- It is impossible to ascertain the actual damage caused by the non-performance (e.g., complex contracts with long-term implications).
- The contract relates to immovable property (there is a presumption that breach of a contract to transfer immovable property cannot be adequately relieved by compensation).
Contracts which cannot be specifically enforced (Section 14): The Act also lists contracts that cannot be specifically enforced, such as:
- Contracts for personal service or dependent on personal qualifications (e.g., contract to paint a picture).
- Contracts which are so detailed or dependent on the continuous supervision of the court (e.g., building contracts, generally).
- Contracts which are in their nature revocable.
- Contracts where the performance involves the performance of a continuous duty extending over a longer period than three years.
Specific performance is a discretionary remedy, and the court considers factors like fairness, hardship, and the conduct of the parties.
Injunctions (Part III, Chapters VII & VIII)
Injunctions are prohibitory or mandatory orders issued by a court to prevent a party from doing something or to compel them to do something. They are dealt with in Chapter VII (Sections 36-42) and Chapter VIII (Sections 43-44 - related to perpetual injunctions).
Meaning: An injunction is a judicial process by which one party is ordered to refrain from doing a particular act (prohibitory injunction) or is ordered to do a particular act (mandatory injunction). They are granted to prevent a breach of obligation or to prevent an injury.
Types of Injunctions:
- Temporary (Interlocutory) Injunctions: Granted during the pendency of a suit to maintain the status quo until the final decision (Governed by Order 39, Code of Civil Procedure, 1908).
- Perpetual (Permanent) Injunctions: Granted by the decree made at the hearing and upon the merits of the suit, whereby the defendant is 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 (Sections 38-42 SRA). Perpetual injunctions finally settle the rights between the parties.
- Mandatory Injunctions: An order compelling a party to perform a specific act (Section 39).
Injunctions are granted to prevent breach of contract (Section 38) or to prevent other wrongs (tortious acts, interference with property rights, etc.). They are also discretionary remedies.
Rectification of Instruments (Part II, Chapter III, Section 26)
This remedy allows for the correction of a written instrument (like a contract, deed, or other document) when it does not accurately reflect the true intention of the parties due to fraud or mutual mistake.
Meaning: Section 26 provides that when, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express their real intention, either party, or their representative in interest, may institute a suit to have the instrument rectified.
Conditions:
- There must be a written instrument.
- Due to fraud or mutual mistake, the instrument does not reflect the true intention of the parties. (Mistake must be mutual, i.e., shared by both parties).
- The party seeking rectification must show the true intention of the parties and how the instrument fails to express it.
The court can direct the rectification of the instrument to express the true intention. This remedy is available when the written document needs to be corrected to align with the actual agreement.
Rescission of Contracts (Part II, Chapter IV, Sections 27-30)
Rescission is the act of cancelling or annulling a contract. It restores the parties to their original position as if the contract had never been made.
Meaning: Section 27 allows a party to a contract to obtain a decree from the court for the rescission of the contract in certain circumstances.
When rescission may be granted (Section 27):
- Where the contract is voidable or terminable by the plaintiff. (e.g., contract induced by fraud, misrepresentation, coercion, undue influence).
- Where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff.
Rescission is also a discretionary remedy. The court may refuse rescission if the plaintiff has ratified the contract, or if the parties cannot be restored to their original position, or if a third party has acquired rights in good faith without notice. Section 30 provides that on granting rescission, the court may require the party to whom relief is granted to make compensation to the other party or restore any benefit received.
Cancellation of Instruments (Part III, Chapter V, Sections 31-33)
This remedy allows a person to seek a court order cancelling a written instrument that might cause them serious injury if left outstanding.
Meaning: Section 31 provides that any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, adjudge it so and order it to be delivered up and cancelled.
Conditions:
- There must be a written instrument (e.g., deed, contract, Will, decree).
- The instrument must be void or voidable against the plaintiff.
- The plaintiff must have a reasonable apprehension that the instrument, if left outstanding, could cause them serious injury (e.g., cloud on title, potential for misuse).
The court can order the instrument to be cancelled in whole or in part. For example, a forged sale deed or a Will obtained by fraud can be cancelled. Section 33 provides that on cancelling an instrument, the court may require the party to whom relief is granted to make compensation to the other party if equity requires it.
Declaratory Decrees (Part III, Chapter VI, Sections 34-35)
This remedy allows a person to seek a declaration from the court regarding their legal character or right to property, without seeking any further relief.
Meaning: Section 34 provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled.
Conditions:
- The plaintiff must be entitled to a legal character (e.g., status as husband/wife, legitimate child) or a right to property (e.g., ownership, easement).
- The defendant must be denying or interested in denying the plaintiff's title to such character or right.
- The plaintiff must be able to seek further relief consequential to the declaration, but chooses not to (unless they are not capable of seeking further relief). (The proviso to Section 34 prevents a court from making a declaration where the plaintiff could have sought further relief but omitted to do so).
A declaratory decree merely declares the existing rights of the parties; it does not compel any party to do or refrain from doing anything. It is useful for removing doubts or challenges regarding one's legal status or property rights and Section 35 confirms that such a declaration is binding only on the parties to the suit and persons claiming through them.
These various forms of specific relief under the SRA provide courts with a range of equitable tools to grant remedies that go beyond simple monetary compensation, aiming for a more complete and just resolution of disputes involving civil rights.
Specific Performance of Contracts relating to Property
Contracts which can be specifically enforced
Specific performance is a remedy available under the Specific Relief Act, 1963, compelling a party to a contract to perform their actual promise. It is an equitable remedy granted when monetary compensation (damages) is considered inadequate to do justice between the parties. Chapter II of the Act (Sections 9 to 25) deals with specific performance of contracts, and several sections within this chapter outline the contracts that are typically enforceable by this remedy.
Sections 10-19 of Specific Relief Act
While Sections 10-19 cover various aspects related to specific performance (including when it is granted, contracts not enforceable, persons for/against whom it can be enforced), Section 10 is the core provision dealing with the contracts that can be specifically enforced by the court.
Section 10. Specific performance in respect of contracts:
Section 10. Specific performance in respect of contracts.
The specific performance of a contract may, in the discretion of the court, be enforced when—
(a) the agreement has been made for the transfer of immovable property; or
(b) such act is in the performance, wholly or in part, of a trust; or
(c) the compensation in money for the non-performance of the act contracted to be done is not an adequate relief; or
(d) it is impossible to ascertain the actual damage caused by the non-performance of the act agreed to be done.
Explanation—Unless and until the contrary is proved, the court shall presume—
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except where—
(A) the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market; or
(B) the property is held by the defendant as the agent or trustee of the plaintiff.
Explanation of Section 10:
Section 10, as amended in 2018, makes specific performance the rule rather than the exception in certain cases, particularly concerning immovable property. It shifts the burden to the party opposing specific performance to prove why it should not be granted. A contract can be specifically enforced in the following situations:
- Contracts for Transfer of Immovable Property (Section 10(a)): This clause specifically mentions contracts for the transfer of immovable property. The Explanation (i) creates a strong presumption that the breach of a contract to transfer immovable property (e.g., contract for sale, lease, mortgage, exchange) cannot be adequately compensated by money. Therefore, contracts relating to immovable property are almost always specifically enforceable, unless a specific exception applies.
- Contracts in Performance of a Trust (Section 10(b)): An act required to be done in performance, wholly or partly, of a trust can be specifically enforced. This ensures that the obligations of trustees can be judicially compelled where necessary.
- When Compensation is Inadequate (Section 10(c)): Specific performance may be granted when monetary compensation would not be an adequate remedy for the loss suffered due to non-performance. This applies widely, including to certain contracts involving movable property (as detailed in the Explanation).
Examples for Movable Property (Explanation (ii)(A)):- A contract for the sale of a rare antique painting.
- A contract for the sale of unique shares in a private company where market value is hard to ascertain.
- A contract for goods that are not readily available in the market (e.g., limited edition items, specialized machinery not easily replaceable).
- When Damages are Unascertainable (Section 10(d)): Specific performance is also granted when it is impossible to calculate the actual damage caused by the breach. This often overlaps with cases where compensation is inadequate, particularly in complex, long-term, or unique contractual arrangements.
- Property held as Agent or Trustee (Explanation (ii)(B)): A contract to transfer movable property can be specifically enforced if the property is held by the defendant as an agent or trustee for the plaintiff.
Section 11. Specific performance of contracts connected with trusts: This section reiterates that specific performance can be enforced when the act is in the performance of a trust (as also mentioned in Section 10(b)). It also states that a contract made by a trustee in excess of their powers or in breach of trust cannot be specifically enforced.
Sections 15-19: These sections specify who can claim specific performance (e.g., any party to the contract, their representatives, transferees, reversioners, etc. - Section 15) and against whom it can be enforced (e.g., any party to the contract, their representatives, transferees with notice, etc. - Section 19). Section 16 lists cases where specific performance cannot be enforced (e.g., plaintiff is insolvent, failed to perform essential terms). Section 17 deals with contracts to sell property where the vendor has no title at the time of contract. Section 18 covers power to order specific performance in suits by vendor or lessee despite subsequent dealings. These sections refine the applicability of specific performance but the core types of contracts enforceable are found in Section 10.
In essence, contracts for the transfer of immovable property are presumptively specifically enforceable, while contracts for movable property are generally enforceable only if damages are an inadequate remedy or unascertainable, or the property is held in a fiduciary capacity.
Contracts which cannot be specifically enforced
While specific performance is a valuable remedy, it is not available for all types of contracts. Section 14 of the Specific Relief Act, 1963, explicitly lists categories of contracts that cannot be specifically enforced by the court.
Section 14. Contracts not specifically enforceable:
Section 14. Contracts not specifically enforceable.
The following contracts cannot be specifically enforced, namely:—
(a) a contract for the performance of a duty which the court cannot enforce;
(b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce its specific performance;
(c) a contract which is in its nature revocable;
(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise;
(e) a contract of which a material part of the subject matter, though existing at the date of the contract, has ceased to exist at the time of its performance;
(f) a contract which is otherwise incapable of being specifically enforced.
Explanation of Non-Enforceable Contracts:
- Contracts the Court Cannot Enforce (Section 14(a)): This includes contracts where the court lacks the power or machinery to compel performance of the specific duty.
- Contracts Requiring Minute Details, Personal Qualifications, or Continuous Supervision (Section 14(b) & (d)): These are significant categories.
- Personal Service Contracts: Contracts that are dependent on the personal qualifications or volition of the parties (e.g., contract to employ an artist to perform, a lawyer to provide legal services). Compelling performance in such cases would infringe personal liberty and is impractical for the court to supervise.
- Contracts Requiring Continuous Supervision: Contracts whose performance involves a continuous duty that the court cannot effectively supervise (e.g., complex construction contracts, contracts for ongoing business operations). The court cannot micromanage the execution of such contracts.
- Contracts with Minute Details: Contracts with too many intricate details that make it difficult for the court to ascertain precisely what needs to be done.
- Revocable Contracts (Section 14(c)): If a party has the right to revoke the contract, the court will not specifically enforce it, as such an order would be futile.
- Contracts where Subject Matter Ceased to Exist (Section 14(e)): If a material part of the property or subject matter of the contract has ceased to exist at the time performance is due (e.g., contract to sell a specific building, but the building is destroyed by fire), the contract cannot be specifically enforced due to impossibility of performance.
- Otherwise Incapable of Enforcement (Section 14(f)): A general clause covering other reasons why specific performance might be legally impossible or inappropriate.
Additionally, Section 16 lists cases where specific performance cannot be obtained by the plaintiff, even if the contract is of a type that is generally enforceable:
- Where the Plaintiff has obtained Substituted Performance (Section 16(a)): If the plaintiff has already got the contract performed by a third party or from themselves.
- Where the Plaintiff has Claimed Compensation (Section 16(b)): If the plaintiff has already accepted compensation for the breach.
- Where the Plaintiff Fails to Prove Performance or Readiness and Willingness (Section 16(c)): The plaintiff must show that they have performed or have always been ready and willing to perform the essential terms of the contract which are to be performed by them. Failure to do so bars the remedy of specific performance.
- Contracts Beyond Authority of Trustee/Company (Section 11(2)): As mentioned before, a contract made by a trustee in excess of their powers or in breach of trust, or a contract made by a company ultra vires its powers, cannot be specifically enforced.
- Contracts where Compensation is an Adequate Remedy (Section 10): Although the 2018 amendment made specific performance the rule for immovable property, for movable property, the court still considers if compensation is adequate under Section 10(c). If damages are sufficient to remedy the breach of a movable property contract, specific performance will likely be refused.
These limitations reflect the equitable nature of the remedy, ensuring it is granted only when appropriate and feasible for the court to supervise, and only to a plaintiff who has also fulfilled their obligations.
Remedies for breach of contract
When a contract is breached, the injured party typically has remedies available under the Indian Contract Act, 1872, and potentially the Specific Relief Act, 1963. The primary remedy under the Contract Act is the award of damages or compensation. The Specific Relief Act provides specific remedies like specific performance and injunctions as alternatives or additions to damages.
Relationship between Compensation and Specific Performance:
As noted in the explanation to Section 10 of SRA, specific performance is granted when "the compensation in money for the non-performance of the act contracted to be done is not an adequate relief". This establishes specific performance as a remedy sought when damages are insufficient.
Section 21 of the Specific Relief Act clarifies the ability of the plaintiff to claim both remedies in the same suit:
Section 21. Power to award compensation in certain cases.
"(1) In a suit for specific performance of a contract,—
(a) the plaintiff may also claim compensation for its breach, in addition to, or in substitution of, such performance;
(b) if, in the opinion of the court, the specific performance cannot be enforced, it may award compensation for the breach."
Explanation:
This means a plaintiff suing for specific performance of a contract has the flexibility to also claim compensation. They can ask for:
- Specific performance PLUS compensation: For any loss suffered due to the delay in performance or other related breaches, even if specific performance is granted.
- Specific performance OR compensation (in substitution): They can ask for specific performance, and alternatively, if the court refuses specific performance, they can ask for compensation instead.
The court, if it finds that specific performance cannot be granted for any reason (e.g., impossibility, one of the grounds under Section 14 or 16 applies), still has the power to award compensation for the breach of contract, provided the plaintiff has claimed it in the suit. If the plaintiff only sued for specific performance and did not claim compensation as an alternative, the court may not be able to grant compensation unless the plaintiff is permitted to amend the plaint.
Section 24. Liquidation of damages not a bar to specific performance:
Section 24. Liquidation of damages not a bar to specific performance.
"A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum is named in it by way of penalty for its breach, or the contract contains a provision for the payment of a sum of money in the event of such breach, and the plaintiff is willing to take the contract as it stands without regard to such provision."
Explanation:
This section clarifies that merely including a clause in the contract specifying a sum payable as penalty or liquidated damages for breach does not automatically prevent a party from seeking specific performance. If the contract is otherwise suitable for specific enforcement, the plaintiff can choose to ignore the penalty/liquidated damages clause and insist on specific performance, provided they are willing to abide by all other terms of the contract.
Section 54: Compensation for breach not substituted for specific performance
Please note that Section 54 of the Specific Relief Act, 1963, deals with mandatory injunctions. The concept "Compensation for breach not substituted for specific performance" is not found in Section 54 SRA.
However, the principle that compensation is the primary remedy, and specific performance is granted as an alternative when compensation is inadequate, is central to Section 10. Furthermore, Section 21 and Section 24, as explained above, govern how compensation and specific performance interact when claimed in a suit.
It appears there might be a reference or sectional number discrepancy in the provided sub-heading, but the underlying concept of how compensation and specific performance relate is covered by Sections 10, 21, and 24 of the SRA.
Section 12: Specific performance of part of contract
Generally, a court is reluctant to enforce only a part of a contract. However, Section 12 of the Specific Relief Act, 1963, provides specific circumstances under which a court may grant specific performance of only a portion of the contract. The goal is to do justice where complete performance is not possible but enforcing a part would still be equitable.
Section 12. Specific performance of part of contract:
Section 12. Specific performance of part of contract.
"(1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract."
"(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency."
"(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed—
(a) forms a considerable part of the whole, or
(b) does not admit of compensation in money,
he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party—
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and, in a case falling under clause (b), pays or has paid the whole of the consideration for the whole of the contract without any abatement; and
(ii) in either case, relinquishes all claim to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant."
"(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct the specific performance of the former part."
Explanation of Section 12:
Section 12 deals with different scenarios of partial non-performance:
- General Rule (Section 12(1)): The court will ordinarily not enforce only a part of the contract. Specific performance is usually for the whole contract.
- Where Unperformed Part is Small and Compensable (Section 12(2)):
- If a party cannot perform a small part of their obligation,
- And this small unperformed part can be compensated in money,
- The court may (discretionary) order specific performance of the performed part and award compensation for the deficiency.
Example:
Example. A contracts to sell two adjacent plots of land to B for a total of ₹ 50 Lakhs. It turns out A has title to only one plot. The value of the second plot is relatively small compared to the first and can be easily ascertained and compensated.
Answer:
The court may order A to specifically perform the contract regarding the first plot (transfer ownership) and pay B compensation for the value of the second plot that A cannot transfer.
- Where Unperformed Part is Considerable or Non-Compensable (Section 12(3)): This clause deals with the consequences when the defaulting party is seeking specific performance (or if the non-defaulting party is resisting).
- If the unperformed part is a considerable portion of the whole, OR
- If the unperformed part cannot be compensated in money,
- The defaulting party cannot demand specific performance (even of the part they can perform).
- However, the other party (the one not in default) MAY demand specific performance of the part that can be performed, but only if they:
- Pay (or have paid) the agreed consideration for the whole contract (if the unperformed part cannot be compensated), OR pay the reduced consideration proportionate to the performed part (if the unperformed part is considerable but compensable), AND
- Relinquish all claims to the unperformed part AND all rights to compensation for the deficiency or loss.
Example (Unperformed part considerable):
Example. A contracts to sell three houses to B for a lump sum of ₹ 1.5 Crore. A only has title to one house (constituting a considerable part of the contract). A sues B for specific performance.
Answer:
A, the defaulting party, cannot demand specific performance against B, as the part A cannot perform is considerable. However, B (the other party) might potentially sue A for specific performance of the transfer of the one house, provided B pays the full ₹ 1.5 Crore (without abatement, as the non-performed part cannot be easily compensated in value relative to the whole) AND relinquishes all claim to the other two houses and any compensation for them.
- Independent Part of Contract (Section 12(4)):
- If a contract consists of several distinct parts,
- And one part, taken by itself, is capable of and ought to be specifically enforced,
- Even if another part cannot or ought not to be specifically enforced,
- The court may order specific performance of the independent, enforceable part.
This applies when the contract is divisible into separate obligations.
Example:
Example. A agrees to sell his land to B and also agrees to provide personal services to B for a year. The contract to provide personal services cannot be specifically enforced (Section 14(b)).
Answer:
The contract is divisible. The sale of land is an independent part that can be specifically enforced. The court may order specific performance of the contract to sell the land, even though the part relating to personal services cannot be enforced.
Section 12 attempts to find a balance, allowing partial enforcement in specific scenarios to achieve a semblance of justice when full performance is impossible.
Injunctions
Temporary and Perpetual Injunctions
Injunctions are a crucial form of specific relief granted by courts to prevent a party from doing something that is unlawful or violates the rights of another, or in some cases, to compel them to undo something they have already done. The legal framework for injunctions is provided in Part III, Chapter VII of the Specific Relief Act, 1963 (Sections 36-42), although the procedure for granting temporary injunctions is primarily governed by the Code of Civil Procedure, 1908 (Order 39).
Section 36. Preventive relief how granted:
Section 36. Preventive relief how granted.
"Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual."
Explanation:
Section 36 establishes that preventive relief (relief aimed at preventing a future wrong or breach of obligation) is granted by way of injunction. It recognizes two main types of injunctions: temporary and perpetual.
Section 36-42 of Specific Relief Act
Sections 36 to 42 of the SRA deal with various aspects of injunctions, including their classification, when they are granted, when they are refused, and rules for enforcing negative agreements.
Section 37. Temporary and perpetual injunctions:
Section 37. Temporary and perpetual injunctions.
"(1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908)."
"(2) 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."
Explanation of Types:
- Temporary (Interlocutory) Injunctions:
- Duration: They are granted for a limited time – either until a specified date or until the court issues a further order (e.g., until the final disposal of the suit).
- Purpose: To maintain the status quo of the subject matter of the dispute during the pendency of the litigation and prevent irreparable injury to the plaintiff.
- Stage of Suit: Can be granted at any stage of the suit, even at the very beginning upon filing the suit.
- Regulation: These are primarily regulated by Order 39 of the Code of Civil Procedure, 1908. The court considers three main principles while granting a temporary injunction under CPC: (i) whether the plaintiff has a prima facie case (a strong case on the face of it), (ii) whether the balance of convenience is in favour of granting the injunction (which party would suffer greater hardship if the injunction is granted or refused), and (iii) whether the plaintiff would suffer irreparable injury if the injunction is not granted (an injury that cannot be adequately compensated by money).
Example:
Example. A files a suit against B seeking a declaration that A is the owner of a piece of land and for B to stop constructing a building on it. A can seek a temporary injunction to restrain B from continuing the construction while the suit is ongoing.
Answer:
If A can show a prima facie case of ownership, that continuing construction would cause irreparable damage to the land or A's rights, and that the balance of convenience favours stopping construction pending the suit, the court may grant a temporary injunction restraining B from further construction until the final decision of the suit.
- Perpetual (Permanent) Injunctions:
- Duration: They are granted perpetually, meaning they are intended to be permanent and finally settle the rights of the parties.
- Purpose: To finally prevent the defendant from doing an act which would be contrary to the plaintiff's rights.
- Stage of Suit: Can only be granted by the final decree of the court after hearing the case on its merits. It is the ultimate relief sought in a suit for perpetual injunction.
- Regulation: Governed by Sections 38-42 of the Specific Relief Act, 1963.
Section 38. Perpetual injunctions when granted:
Section 38 lists the circumstances when a perpetual injunction may be granted. It is based on the same principles as Section 10 regarding when specific performance may be granted (as injunctions are often used to indirectly enforce contractual obligations or protect proprietary rights):
Section 38. Perpetual injunctions when granted.
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether that obligation arises by contract or otherwise.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II (Specific Performance) of this Act.
(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 pecuniary compensation would not afford adequate relief;
(d) where it is probable that pecuniary compensation cannot be got for the invasion;
(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
Explanation: A perpetual injunction can be granted to prevent the breach of any obligation (contractual or otherwise). For contractual obligations, the rules of specific performance apply. For obligations related to property, injunctions are granted when:
- The defendant is a trustee invading the beneficiary's right.
- Damage is unascertainable.
- Pecuniary compensation is inadequate.
- Compensation is unlikely to be recovered.
- It is necessary to avoid multiple lawsuits (e.g., continuous trespass).
Section 41. When injunction refused: Section 41 lists situations where an injunction cannot be granted, such as: to restrain a person from prosecuting a judicial proceeding (unless it is a multiplicity of proceedings), to restrain criminal proceedings, to prevent breach of a contract which cannot be specifically enforced, to prevent a nuisance where injury is not likely, when the plaintiff has no personal interest in the matter, etc.
Sections 40 and 42 are discussed under subsequent subheadings.
Mandatory Injunctions
Mandatory injunctions are a less common type of injunction compared to prohibitory ones. While a prohibitory injunction orders a party to refrain from doing something, a mandatory injunction orders a party to perform a specific act with the aim of preventing the breach of an obligation or compelling the performance of an act necessary to remedy a wrong.
Section 39. Mandatory injunctions:
Section 39. Mandatory injunctions.
"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."
Explanation:
A mandatory injunction is granted when the court orders a party to do something to undo the consequences of their wrongful act or omission, or to compel them to perform an act that is necessary to prevent the breach of an obligation. The court will only grant a mandatory injunction if it is capable of enforcing the performance of the required act.
Key requirements for granting a mandatory injunction:
- There must be an obligation (contractual or otherwise) that is being breached or is threatened to be breached.
- To prevent this breach, it is necessary to compel the performance of certain positive acts.
- The court must be capable of supervising and enforcing the performance of these acts.
- Like all specific reliefs, it is a discretionary remedy.
Mandatory injunctions can be temporary (interlocutory) or perpetual (final).
Example:
Example. A has a right to receive light and air through specific windows of his house from B's adjacent land (an easement). B starts constructing a wall on his land that blocks A's light and air, violating A's easementary right. A immediately files a suit seeking an injunction.
Answer:
If B completes the wall before the court issues a prohibitory injunction, A can seek a mandatory injunction compelling B to demolish the portion of the wall that obstructs A's easement. Demolishing a specific part of a structure is an act that the court is capable of enforcing. If A proves his right to the easement and the violation by B, the court may grant a mandatory injunction for demolition.
Mandatory injunctions are typically granted to restore the status quo as it existed before the wrongful act or to compel the performance of clear and definable positive obligations where damages are not an adequate remedy.
Damages in Lieu of or in Addition to Injunction (Section 40):
Section 40 is similar to Section 21 (compensation in specific performance). It allows the plaintiff in a suit for injunction to also claim damages, either in addition to or in substitution for the injunction.
Section 40. Damages in substitution for, or in addition to, injunction.
"(1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages."
(Sections 40(2) and (3) deal with claiming damages and assessing damages).
Explanation: A person seeking an injunction can combine the claim with a claim for damages. The court can grant the injunction plus damages (e.g., for loss suffered until the injunction is granted) or, if it finds that an injunction is not the appropriate remedy, it can award damages instead, provided such damages were claimed by the plaintiff in the suit.
Injunctions to enforce Negative Covenants
Contracts often contain both positive obligations (promises to do something) and negative obligations (promises not to do something). While courts are generally hesitant to grant specific performance of contracts that require continuous supervision (Section 14(d)), they can often enforce negative obligations by way of injunction, even if the positive obligations in the same contract are not specifically enforceable.
Section 42. Injunction to perform negative agreement:
Section 42. Injunction to perform negative agreement.
"Notwithstanding anything contained in clause (e) of section 14, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express 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 applicant has not failed to perform the contract so far as it is binding on him and has in other respects fulfilled the conditions entitling him to the aid of the court."
Explanation:
This section is an important exception to the rule that courts cannot specifically enforce contracts that require continuous supervision or are dependent on personal qualifications (Section 14(b) and (d)). Section 42 states that even if the court cannot compel a party to perform their positive promise (the 'affirmative agreement'), it can still grant an injunction to prevent them from breaking their negative promise (the 'negative agreement' or 'negative covenant') within the same contract.
Conditions for applying Section 42:
- The contract must contain both an affirmative agreement (to do something) and a negative agreement (not to do something). The negative agreement can be express or implied.
- The court must be unable to specifically enforce the affirmative agreement (e.g., because it involves personal service or requires continuous supervision).
- The applicant (plaintiff) must not have failed to perform their part of the contract and must otherwise be entitled to the court's assistance (e.g., not in breach themselves).
Example (Famous English case principle embodied in S.42):
Example. A contracts to sing at B's theatre for a certain period (affirmative agreement) and also agrees not to sing elsewhere during that period (negative agreement). Later, A refuses to sing at B's theatre and arranges to sing at C's theatre. B cannot compel A to sing at his theatre (personal service contract - cannot be specifically enforced).
Answer:
According to Section 42, B can obtain an injunction restraining A from singing at C's theatre (enforcing the negative covenant). While the court cannot force A to sing for B, it can prevent A from acting in breach of her negative promise not to sing elsewhere during the contracted period, provided B has fulfilled his part of the contract.
This allows courts to provide some relief in contracts involving personal skill or requiring ongoing obligations by enforcing the prohibitory terms, thus preventing a party from doing something inconsistent with their contractual undertaking, even if they cannot be compelled to do the positive act.
Note: Section 42 overrides Section 14(e) [now 14(d) in the renumbered list in the Act due to 2018 amendment], which states that a contract which the court cannot supervise cannot be specifically enforced. Section 42 specifically allows enforcing the negative part *notwithstanding* this inability to supervise the positive part.