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Author Topic: a look into what is Permanent Injunction  (Read 1175 times)

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Offline advocatesingh

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a look into what is Permanent Injunction
« on: March 20, 2014, 02:47:34 AM »
Permanent Injunction

Permanent Injunction:
As is clear from Section 37 (2) of Specific Relief Act, 1963 (hereinafter referred to as
the Act), a perpetual injunction can only be granted by the decree made at the hearing and
upon the merit 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 right of the
plaintiff. Section 38 of the Act further provides the circumstances where the perpetual
injunction may be granted in favour of the plaintiff to prevent the breach of an obligation

existing in his favour, whether expressly or by implication. In contractual matters when such
obligation arises, the Court has to seek guidance by the rules and provisions contained in
Chapter II of the Act dealing with specific performance of contracts. Sub- Section (3) of Section 38 in clauses (a), (b), (c) and (d) further illustrates the circumstances where a perpetual injunction may be granted by the Court. The mandatory injunctions are contemplated under Section 39 of the Act where it is necessary to prevent the breach of an obligation and the erring party may be compelled to perform certain acts. Section 40 provides for granting damages in lieu of or in addition to injunction. Section 41 provides circumstances where the injunction should be refused. Section 42 provides for grant of injunction to perform a negative agreement. It was made clear at the beginning that the Law of Injunction is vast and expansive jurisdiction and It forcefully illustrates the power of equity in spite of the fetters of codification to march with the times and adjust the beneficial remedies to altered social conditions and the progressive needs of the humanity. The first Specific Relief Act was codified in the year 1877 which was replaced by the Specific Relief Act of 1963 (Act No.47 of 1963). In spite of the codification the law of injunction continued to expand and it fulfilled the needs of the society in different shapes - and forms.

The codification of the law has never proved a fetter. In this context, a Civil Court should never have any hesitation in granting injunction to new circumstances and situations. Our society is a progressive society, our country is a developing country and with the growth of the industry one may be called upon to administer law of injunction to various kinds of new situations which were wholly unknown to this field earlier. The essential test should, however, remain equity. In this context the views expressed by the Courts and Jurists may be gainfully quoted here :

"It is the duty of a Court of Equity," said Lord Cot ten hem in Taylor v. Selmon, (and the same is true of all Courts and institutions), "to adopt its practice and course of proceedings, as far as possible, to the existing state of society and to apply its jurisdiction to all those new cases which from the progress daily made in the affairs of men must continually arise and not from too strict an adherence to forms and rules established under very different circumstances decline to administer justice and to enforce rights for which there is no other remedy."

Similarly, the view expressed by the great jurist Shri Banerjee in Tagore Law Lectures as far back as in 1906 may be remembered by us as a good guide even today in this field of law. Banerjee said: ‘Since an obligation includes every duty enforceable by law this form of specific relief, it would appear, is applicable to all cases where one person can enforce a duty against another, or to use the correlative term, where one person is vested with a right which empowers him to constrain the other to adopt a particular line of conduct, or to do or abstain from doing a particular act. This right mayor may not arise out of a contract, and the remedy of injunction, by which preventive relief is granted by a Court, may be held to be available throughout the whole range of the law, But the jurisdiction is carefully defined in part Ill, Specific Relief Act, and to some extent circumscribed. It still remains, however, a vast and expansive jurisdiction, and forcibly illustrates the power of equity, in spite of the fetters of codification, to march with the times and adjust the beneficial remedies to altered social conditions and the progressive needs of humanity.'

Mr. H.C. Joyce also in his Law of Injunctions has expressed identical views. He says, ‘As a remedy for preventing wrongs and preserving rights, the injunction has been regarded as more flexible and adjustable to circumstances than any other process known to law. The correctness of the estimate is seen in the readiness with which injunctions yield to the convenience of the parties, the case with which damages are substituted in their place when justice and public interest so require, the facility with which a preventive and a mandatory injunction are made to co-operate so that by single exercise of equitable power an injury is both restrained and repaired, and the facility with which injunctive relief can be applied to new conditions and adjusted to the changing emergencies of modern enterprise. In this connection it may be declared that as writ of injunction my be said to be a process capable of more modification than any other in the law, it is so malleable that it may be moulded to suit the various circumstances and occasions presented to a Court of Equity. It is an instrument in its hands capable of various applications for the purpose of dispensing complete justice between the parties. It may be special, preliminary, temporary or contracted, in short it is adopted, and is used by Courts of Equity, as a process for preventing wrong between, and preserving the rights of parties in controversy between, where, too, if a party cannot at once comply with an injunction without being put to great expense or grievous annoyance, the Court may order that the injunction do not commence until after a certain stated period.

Injunction should not be denied on the ground of its novelty in application, if the exigencies of the situation required it and if it does not militate against statutory provision. The Courts should act according to justice, equity and good conscience, when there is no specific rule applicable to the circumstance of the case."

Once the aforesaid basics of this equity jurisdiction become clear, there may not be any difficulty in its application to various situations - One may be called upon to grant injunction in various kinds of disputes which may be commercial non- commercial, marital, non-marital, encroachment over civil rights etc. The list of these situations cannot be given here. A civil dispute calling for a preventive relief may come before one in any shape and then one may be guided by principles of equity, justice and good conscience in granting relief. The hesitation should not be there when equitable consideration demand and justify it.
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Offline advjaya

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Re: a look into what is Permanent Injunction
« Reply #1 on: March 24, 2014, 12:03:37 AM »
Thank u sir the information. On permanent injunction provided by you is comphrensive :)
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