Injunctions: temporary, perpetual and mandatory - Contract I

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1. Preventive relief: sections 36 and 37
2. Temporary injunctions: Order XXXIX CPC
3. Perpetual injunctions: section 38
4. Mandatory injunctions: section 39
5. When an injunction is refused: section 41
6. Negative covenants: section 42
7. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Two statutes, one remedy. The Specific Relief Act says what an injunction is and when a perpetual one may be granted or refused. A temporary injunction is granted under Order XXXIX of the Code of Civil Procedure, applying three tests laid down by the courts. Keep the two sources apart in the answer, and remember that injunctions, unlike specific performance after 2018, are still discretionary.

1. Preventive relief: sections 36 and 37

Section 36: preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. An injunction is an order directing a person to refrain from doing an act (prohibitory) or to do an act (mandatory).

Section 37: a temporary injunction continues until a specified time or until further order, may be granted at any stage of a suit, and is regulated by the CPC. A perpetual injunction is granted only by a decree at the hearing and on the merits of the suit; it perpetually restrains the defendant from asserting a right or doing an act that would be contrary to the plaintiff's rights.

2. Temporary injunctions: Order XXXIX CPC

Order XXXIX rule 1 allows a temporary injunction where suit property is in danger of being wasted, damaged or alienated, where the defendant threatens to dispose of property to defraud creditors, or where he threatens to dispossess the plaintiff or otherwise injure him in relation to the property. Rule 2 covers injunctions to restrain breach of contract or other injury. Rule 2A punishes disobedience with attachment and civil prison. Rule 3 requires notice to the opposite party, and reasons to be recorded if an ex parte injunction is granted.

The court applies three tests, all of which must be satisfied:

Prima facie case: a bona fide dispute raising a substantial question to be tried, not proof of the case;
Balance of convenience: the comparative hardship to each side from granting or refusing the injunction;
Irreparable injury: injury that cannot be adequately compensated in damages if the injunction is refused.

Dalpat Kumar v. Prahlad Singh, 1991 INSC 341, (1992) 1 SCC 719: the three conditions must coexist; “prima facie case” is not the same as a case proved to the hilt; irreparable injury means material injury that cannot be adequately compensated by damages. The High Court's injunction was set aside.
Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727: the object of an interlocutory injunction is to protect the plaintiff against injury for which he could not be adequately compensated if he won at trial, weighed against the defendant's need for protection. An appellate court should not substitute its own discretion for the trial court's unless the trial court acted arbitrarily, capriciously or perversely or ignored settled principles.

3. Perpetual injunctions: section 38

A perpetual injunction may be granted to prevent the breach of an obligation existing in the plaintiff's favour, express or implied (section 38(1)). Where the obligation arises from contract, the court is guided by the rules on specific performance in Chapter II (section 38(2)). Where the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, an injunction may be granted where (section 38(3)):

the defendant is a trustee of the property for the plaintiff;
there is no standard for ascertaining the actual damage;
compensation in money would not afford adequate relief;
an injunction is necessary to prevent a multiplicity of proceedings.

Where title is seriously disputed, a bare injunction suit is not the right vehicle; the plaintiff must sue for declaration with injunction: Anathula Sudhakar v. P. Buchi Reddy, 2008 INSC 395, (2008) 4 SCC 594.

4. Mandatory injunctions: section 39

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 grant an injunction to prevent the breach and to compel performance of those acts. A wall built in breach of an easement of light may be ordered to be pulled down. Section 40 lets the court award damages in addition to or in place of an injunction under section 38 or 39.

A mandatory injunction at the interim stage is exceptional. Dorab Cawasji Warden v. Coomi Sorab Warden, 1990 INSC 35, (1990) 2 SCC 117: it is granted only to restore the status quo or prevent irreparable harm, on a strong prima facie case of a higher standard than for a prohibitory injunction, and where the balance of convenience clearly favours it.

5. When an injunction is refused: section 41

An injunction cannot be granted:

(a) to restrain a person from prosecuting a judicial proceeding pending when the suit is filed, unless necessary to prevent a multiplicity of proceedings;
(b) to restrain a person from instituting or prosecuting a proceeding in a court not subordinate to the court granting it;
(c) to restrain a person from applying to a legislative body;
(d) to restrain a person from instituting or prosecuting a criminal proceeding;
(e) to prevent breach of a contract that would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act not reasonably clear to 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 a breach of trust;
(ha) added in 2018: if it would impede or delay the progress or completion of an infrastructure project, or interfere with the continued provision of a related facility or service;
(i) when the conduct of the plaintiff or his agents disentitles him to the court's help;
(j) when the plaintiff has no personal interest in the matter.

Cotton Corporation of India v. United Industrial Bank, 1983 INSC 123, (1983) 4 SCC 625: section 41 governs temporary injunctions as well. Since a perpetual injunction cannot restrain a person from instituting a proceeding (clause (b)), a temporary one cannot either.

6. Negative covenants: section 42

Section 41(e) would bar an injunction where the contract cannot be specifically enforced, and section 14(c) bars enforcement of contracts of personal service. Section 42 is the exception. Where a contract contains an affirmative agreement to do an act coupled with a negative agreement, express or implied, not to do a certain act, the court's inability to enforce the affirmative part does not stop it from granting an injunction on the negative part, provided the plaintiff has not failed to perform the contract so far as it binds him.

Lumley v. Wagner (1852, England): an opera singer agreed to sing at Lumley's theatre for a season and not to sing elsewhere. She could not be forced to sing for Lumley, but she was restrained from singing at a rival theatre.
Warner Bros. Pictures v. Nelson (1937, England): the actress Bette Davis was restrained from acting for others during her contract term. The injunction is limited so that it does not in effect compel performance by leaving the defendant no other way to earn a living.
Niranjan Shankar Golikari v. Century Spinning and Mfg. Co., 1967 INSC 10, AIR 1967 SC 1098: a negative covenant operating during the term of employment, not to work for a rival, is not a restraint of trade under section 27 of the Contract Act and can be enforced by injunction. A covenant operating after the employment ends is usually void under section 27.
Gujarat Bottling Co. v. Coca Cola Co., 1995 INSC 441, (1995) 5 SCC 545: a negative stipulation in a franchise agreement, operating while the agreement subsists, is not void under section 27; but an injunction remains discretionary, and on the facts the Court held the loss could be compensated in damages.

7. Problem

A, a well-known playback singer, agrees with B Studios to record songs only for B for two years and not to sing for any other studio during that time. After six months A starts recording for C. B sues to compel A to sing and to restrain A from singing for C.

Issue. Whether B can get specific performance or an injunction.

Law. A contract dependent on personal qualifications cannot be specifically enforced (section 14(c)), and section 41(e) would ordinarily bar an injunction. Section 42 allows an injunction to enforce a negative covenant coupled with an affirmative one, if the plaintiff has performed his part (Lumley v. Wagner; Golikari).

Application. The court will not order A to sing for B. But A's promise not to sing for others during the two years is an express negative covenant, operating only during the term, so section 27 does not strike it down. If B has paid A as agreed, section 42 applies.

Conclusion. B's claim to compel A to sing fails; B can get an injunction restraining A from recording for C or any other studio until the two years end, with damages under section 40 if loss is proved.

How this is examined

As an essay: “Explain the law relating to temporary and perpetual injunctions” or “When is an injunction refused?” Cover sections 36 to 38, then Order XXXIX and the three tests with Dalpat Kumar, then section 41 with clause (ha). As a short note: mandatory injunction, or injunction to enforce a negative covenant (section 42, Lumley v. Wagner). The singer or film-actor problem is the stock problem and is answered as above.