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The Concept of Temporary And Perpetual Injunction

In terms of justice, an injunction is a court’s order that requires a person to do or abstain from doing an act that is necessary and the absence of which would be contrary to good faith and good conscience. This provision statutory supports the Natural Justice and Equity. This arm of justice is aimed to restore the violated rights of a party, whereby monetary or compensatory damages are insufficient and also comes as an addition to another remedy. Temporary Injunctions are those which remain in force until specified time or until further orders. Such injunctions can be granted at any stage of the suit and are governed by Order 39 of the Code of Civil Procedure, 1908 rather than by Specific Relief Act, 1963 .(S 37(1))

Permanent Injunctions on the other hand, maybe granted, at the discretion of the court by the decree of the court after hearing the case .It remains in force for all time to come.( S 37(2))

Tests For Temporary Injunction

·Whether the plaintiff has a prima facie case?
·Whether the balance of convenience is in favour of the plaintiff? And
·Whether the plaintiff would suffer an irreparable damage, if the injunction is not granted?

Where A Permanent Injunction Can Be Granted?
·By Section 38 perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication.
·Where the defendant is a trustee of the property for the plaintiff.
·Where there is no standard for ascertaining the actual damage caused, or likely to be caused, to the plaintiff, by invasion of his rights.
·Where the invasion of the plaintiff’s right is such that compensation in money would not afford adequate relief.
·Where injunction is necessary to prevent multiplicity of judicial proceedings.

Where A Perpetual Injunction Can’t Be Granted? (S 41)

·To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent multiplicity of judicial cases.
·To restraint any person from insulting or prosecuting any proceeding in a court not subordinate to that from which injunction is sought.
·To restraint any person from applying for prosecuting any legislative body.
·To restraint any person from instituting or any proceeding in a criminal matter.
·To prevent breach of a contract, the performance of which would not specifically enforced.
·To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance.
·To prevent a continuing breach in which the plaintiff acquiesced.
·When equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust.
·When conduct of plaintiff or his agent is such to disentitle him to the assistance of the court.


Temporary Injunction Perpetual Injunction
·For a specified time and may be granted at any point during the suit.
·Order 39 (Rules 1 to 5) of CPC governs temporary injunctions.
·Is non-conclusive and short run.
·May only focus on the Plaintiff’s side.
·May be revoked by the court
·By the decree of the court, by the examination merits of the case.
·Sections 38 to 42 of SRA governs perpetual Injunctions.
·Is Final, Conclusive and Long Run.
·Focuses on the Plaintiff as well as the Defendant.
·Is non-revocable by the court, though appealable.

In Agriculture Produce Market and Ors v/s Girdhar Bhai Ramjibhai and Ors. (1995) 5 SCC 468,it was observed that Injunction can only be granted only if the person seeking the injunction has a right capable of being enforced by the way of injunction.

In Bharat Aluminium Co. v/s Kaiser Aluminium Technical Services Inc (2012) 9 552the interim relief claimed itself must be a part of a substantive relief to which plantiff’s cause of action entitled him. Hence, a suit only to claim interim injunction is not maintainable.

In, Samar Kumar Roy (D) through L.R. (Mother)Vs. Jharna Bera AIR 2018 SC 334 the court found a question whether suit which was, in substance suit filed under Section 34 of SRA was maintainable at behest of legal representative of dead Plaintiff.

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