Injunction and Extra Judicial Remedies under Tort Law
An injunction is an order of a court restraining the commission, repetition or
continuance of a wrongful act of the defendant.
To entitle a party to an injunction he must prove either damage or apprehended
damage. The apprehended damage must involve imminent danger of a substantial
kind or injury that will be irreparable.
Preventive injunction can be granted only when the defendant has violated or is
going to violate some legal or equitable right of the plaintiff and not merely
on the ground that what the defendant is threatening to do is unconscionable for
him to do.
In certain cases the court may have to do a balancing between two rights, e.g. a
right to privacy and a right to freedom of expression, before deciding to issue
An injunction may be granted to prevent trespass, or the continuance of nuisance
to dwelling or business houses, to right of support ,to right of way, to
highways ,to ferries ,to markets etc; or the infringement of patent rights,
copy-rights and trademarks; or the publication of trade secrets; or the wrongful
sale or detention of a chattel, or the publication of a libel or the uttering of
a slander; or the disclosure of confidential communications, papers, secrets
etc. or the publication of manuscripts, letters and other unpublished matter.
Extra Judicial Remedies:-
Law does not expect a person to approach the Court for redress where he himself
can remedy the wrong by resort to self-help. Therefore, there may be
circumstances when a person can get the wrong caused to him redressed by using
self-help instead of suing the defendant in a court of law. Such remedies which
a person is allowed to seek without approaching the Court for justice are known
as extra-judicial remedies.
The Governing Body of Injunction in IndiaThe right to an injunction is governed in India by the Specific Relief
Act.Grant of temporary injunction is governed by the Code of Civil
Section 36 of the Specific Relief Act 1963 discusses how preventive relief is
Injunctions are of various kinds. Section 37 of the Specific Relief Act 1963
defines different kinds of injunctions. They are:
1) Temporary Injunction-Temporary injunctions are such as are to continue
until a specified time or until the further orders 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)Perpetual Injunction-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.
Section 38 of the Specific Relief Act discusses when perpetual injunction is
granted. It is granted:-
1) Subject to the other provisions contained in or referred to by chapter VIII
of the Specific Relief Act 1963,a Perpetual Injunction may be granted to the
plaintiff to prevent the breach of an obligation existing in his favour, whether
expressly or by implication.
2) When any such obligation arises from contract, the court shall be guided by
the rules and provisions contained in chapter II of the Specific Relief 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 compensation in money would not afford
d) Where the injunction is necessary to prevent a multiplicity of judicial
Section 39 of the Specific Relief Act discusses mandatory injunction.
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.
There is another kind of injunction calledprohibitory injunction.
Prohibitory Injunction-It forbids the defendants from doing some act
which will interfere with the plaintiff's lawful rights. Examples of prohibitory
injunction are-restraining the defendant from committing or continuing the acts
like trespass or nuisance.
Section 41 of the Specific Relief Act:When an injunction is refused.
An injunction cannot be granted:-
a) 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 the multiplicity of proceedings;
b) to restrain any person from instituting or prosecuting any proceeding in a
court not subordinate to that from which the injunction is sought.
c) to restrain any person from applying to any legislative body;
d to restrain any person from instituting or prosecuting any proceeding in a
e) to prevent the breach of a contract the performance of which would not be
f) to prevent, on the ground of nuisance, an act of which it is not reasonably
clear that it will 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 case of breach of trust;
i) when the conduct of the plaintiff or his agents has been such as to
disentitle him to the assistance of the court;
j) when the plaintiff has no personal interest in the matter.
Types of Injunction Under The English Law-An injunction made before a
case goes to trialis known as an ‘interlocutory' or ‘interim' injunction. It
can be made to remain in force for a particular period of time. Otherwise, it
remains in force until the matter comes to trial or until the court makes any
further order. Some of the specific injunctions granted by the English Courts
A) Property Injunction-For example a freezing injunction to prevent a
court opponent from disposing of assets and evidence of assets.
b) Publication Injunction-The well-known right to stop something being
published, usually (but not always) by a newspaper or media organisation.
However, this is increasingly being used to prevent bloggers and websites from
c) Housing Injunction-This relates to nuisance; a council or housing
association can apply for an injunction to prevent a tenant from causing
nuisance or disruption to others. However, a tenant can also apply for an
injunction to prevent a private landlord from interfering with their rights as a
tenant, usually their right to quiet enjoyment of a rented property.
Extra Judicial Remedies in India-
As indicated, judicial remedies are those legal measures which are adopted by
parties themselves for the redress of their grievances without going to the
courts of law. They are mainly the following:-
1) Rights of re-entry on land
2) Rights of re-caption of chattels
3) Abatement of nuisance
4) Distress Damage Feasant
Re-entry on Land
A person who has been wrongfully ejected from his land can re-enter his land
provided he does it peaceably and without using force.
Re-caption of Chattels
If a person takes from my pocket my fountain pen and runs with it, can run after
him, seize and forcibly take back my fountain pen from him. This is my right of
re-caption for which neither civil nor criminal action would lie against me. But
I must use only a reasonable degree of force that is necessary for taking my
chattel. If the wrongdoer has placed the article in his own house, I can follow
my property into that house and take the article by entering the house. But if
my article is found in another's premises where it has been placed accidentally
by some other person, I will not have the right to enter the house without the
consent of the owner of the house.
Abatement of Nuisance
As a general rule, everyone who is damaged by a private nuisance is entitled to
abate it or remove it. A man may enter upon his neighbour's land and abate a
nuisance of filth which his neighbour has placed there. One may justify breaking
down a gate which obstructs a private right of way and cutting off those
portions of one's neighbour's trees which project over one's boundary .But it is
the duty of the person who cuts the overhanging branches of the tree to handover
the wood to the owner of the tree.
The abatement of nuisance is a remedy which is not favoured by law and is
usually not advisable to resort to. It may lead to breach of peace or be the
means of doing irreparable damage .In any case the party abating a nuisance must
be careful not to interfere with the property of the wrongdoer in excess of what
is necessary to abate the nuisance, and if there are alternative methods of
abatement, one of which will be less injurious to the wrongdoer than the other,
the least injurious method must be adopted.
Distress Damage Feasant
If a man finds the cattle or chattel of another unlawfully on his land causing
damage, he may seize and detain it impounded in order to compel the owner of the
offending cattle or chattel to make compensation for the damage done. This right
is known as that of Distress Damage Feasant. Distress is usually taken of
straying cattle, but it may be equally well taken of any other chattel which
unlawfully encumbers and damages a man's land. Thus, a railway company has been
held entitled to seize and detain a locomotive engine which was wrongfully
encumbering its lines.
The right to detain, being an extra-judicial remedy was always severely limited
by the law. Hence it must take place on the detainor's land. If the thing
escapes, he has no right to follow and recapture it.
When there is no trespass, there is no right of distress. Thus if the cattle on
being driven along a road, stray on to the adjoining unfenced land without
default on the part of their drivers, they cannot be detained until there has
been a reasonable opportunity of driving them back again.
It is not lawful by way of distress damage feasant to take a thing, which is
under the personal control of another, for example, a horse which another person
is wrongfully riding across one's land.
Extra Judicial Remedies under the English Law
The extra judicial remedies present under the English law are almost the same as
those present under the Indian law and explained above. For example in case of
Rights of re-entry on land, in England under the Statute of Forcible Entry, even
a person who is entitled to possession should not use violence and force for
effecting his purpose and will be punished with imprisonment if he enters With
Strong Hand Or, ultitude of People. Hence under the English law, forcible entry
will constitute a criminal offence. In the light of the above statute he can
enter only if he can effect it in a peaceable manner. But will a civil action
lie against the owner of a house who got possession of his house by using such
degree of force as was necessary for that purpose? After some doubt, it has been
finally settled in the case of Hemings v. Stoke Pages Golf Club that no such
action would lie. In that case, the plaintiff, the tenant of a cottage owned by
the defendants, refused to quit it after notice had been duly given to him. The
defendants thereupon entered the cottage and removed the plaintiff and his
furniture with no more force than was necessary. He sued them for assault,
battery and trespass and they were held not liable.
Similarly in case of Distress Damage Feasant, under the provisions of the
English Statute, animals taken damage feasant may be driven to a pound within
The other extra judicial remedies present under the English law are similar to
the ones explained above under the Indian law.
Basic Principle of Law of Injunction
·During 14thcentury, England had two distinct court systems. These
were well known as ‘Law Courts' and ‘Equity Courts'. The law of injunction in
India is having its origin in theEquity Jurisprudence of England. England too
in in its turn borrowed it from the Roman law wherein it was known as an
Interdict. Roman Interdicts were categorized in three parts such as Prohibitory,
Restitutory and Exhibitory. Law courts were divided by their development of the
common law. Equity courts had a more flexible approach to cases and provided for
broad remedies. In our country, the Specific Relief Act 1963 provides a large
number of remedial aspects of law. This Act came in force in the replacement of
earlier Act of 1877.Injunction is a judicial process by which one has invaded or
is threatening to invade the rights, legal or equitable, of another, is ordered
to refrain from doing, or to do a particular act or thing.
·An injunction is an equitable remedy; the party, who seeks relief,
must come with clean hands.
·Judicial process operating in personam, and requiring the person to
whom it is directed to do or refrain from doing a particular thing.
·Chancery and its development into a court is another aspect to
understand the history of injunctions.
·Injunctions appeared in Chancery as early as the 1390's.Injunction
cases in Chancery's early period(from the 1390's to about 1500) were quite
diverse, involving such disparate areas of law as real property, personal
property, tort and contract.
Some Basic Rules of Injunctions1) An injunction is an equitable remedy;
2) The party, who seeks equitable relief, mustcome with clean hands.
3) A perpetual injunction may be granted to the plaintiff to prevent the breach
of an obligation in his favour.
4) Injunction is an equitable remedy.
5) There must be breach of an obligation or infringement of a legal right.
6) The possession must be a lawful possession.
7) In the absence of irreparable loss, damages is the remedy.
8) Where there is an efficacious relief, no injunction should be granted.
9) Juridical possession is also a valid ground to grant injunction.
10) Question of title may be incidentally gone into, while granting an
11) Injunction cannot be granted in case of illegal agreement.
12) No injunction shall be granted in case of an agreement with minor.
Basic Case Laws
Basic Indian Cases on Injunction
1) Chaitanya Singh v. Maharishi Dayanand Saraswati University-Here
the petitioner, who was a student of B.Ed. ,allegedly suffered monetary loss
,mental stress and strain due to the arbitrary actions of the respondents for
which he filed the writ .It was held that the award of compensation for which
the writ was filed could not be claimed directly under Article 226 of the
Constitution of India, particularly when the alternative remedy of a civil suit
was available to a party ,and it should be availed of at the first instance. The
appellant having not succeeded in getting compensation for damages against the
university, though having succeeded for his admission to the B.Ed course and
finally succeeded in completing the same, could not be said to have been put to
any monetary loss for which the respondent university could be held responsible.
2) M/S Hindustan Pencils Pvt .Ltd. vM/S India Stationery Products-In
this case, the plaintiffs filed a suit for perpetual injunction alleging
infringement of their registered trademark and also prayed for a decree for
rendition of accounts of profit against the defendants. Along with this suit, an
application under 0.39 Rr.1 and 2 has also been filed for an interim injunction
against the defendants for restraining them from infringing the said mark.
According to the plaintiffs, the trademark Nataraj with the device of Nataraj
under No.260466 dt. 27-10-1972 in respect of pencils of all kinds, erasers,
refills for pens and pencils, pencil sharpeners, pens, pins, clips were adopted
by them in the year 1961 and after registration the same are still valid a
subsisting in the register of Trade Marks. The plaintiffs said that in the
middle of 1985 they got to know that the defendants had surreptitiously got
registered a copyright, a label similar to that of the plaintiffs in respect of
After considering all the different aspects of the case, the court restrained
the defendants by an interim injunction from using the offending mark ‘NATARAJ'
and the device of NATARAJ or any similar mark or device which is an infringement
on the plaintiffs registered trademark Nos. 260466 and 283730 in respect of
stationery pins and other stationery items.
3) Rohini Sharma &othersv.Sakuntala Devi and others-In this case
the trial court granted an ex-parte and ad-interim injunction to
plaintiff-appellants but same was vacated by the first appellate court. Hence,
this appeal, whether the trial court was in error in fact in discharging interim
order of injunction. It was held in a suit for declaration of title, Court has
power under Order 39, rules 1 &2 or even under section 151 of CPC, to grant an
ad-interim injunction. The Relief was purely discretionary. Any further belief,
such as, perpetual injunction sought by Plaintiff-Appellant, was dependent upon
declaratory decree as prayed by them. Finally it was held that power restricting
transfer and refusing restriction can be exercised only in manner specified
within framework of articles of Association. It was found that the resolution
did not contravene any provisions of law or articles of association. Also it was
held that, Ex parte injunctions could be granted only under exceptional
circumstances. It could not be said that discretion exercised by the Court below
was so grossly erroneous as to call for interference this stage.
Basic English Cases on Injunction
1)Petetson v. Shelley- In this case, where the plaintiff, who had
a reversionary interest in land, wanted to prevent the present tenant from
committing waste of timber.
2) In another decided English case, the defendant told the plaintiff that
he desired to marry her and asked her for a sum of gold and currency for wedding
costs and business investments (to make him a more profitable husband). She gave
him the gold and currency without demanding a formal contract of marriage ;he
then married another and refused to return the gold and currency .Plaintiff
sought an order from the Chancellor to compel him to do so .Here an injunction
was sought because there was no suitable common law form of relief.
3)Allen v. Dingley- In this case it was decided that injunctions could
extend beyond the parties to include their attorneys and counsellors. The latter
could be enjoined from proceeding at law or enforcing a judgment and they could
be held in contempt of Chancery if they violated the injunction.
Recent Indian Cases on Injunction
1) The Commissioner, Bangalore Development Authority and Anr.v.Brijesh
In this case, the High Court allowed appeal filed by respondents/plaintiffs
against order of the trial court. Hence, this Appeal-Whether civil court had
jurisdiction to entertain suit when the scheduled lands were acquired under the
Land Acquisitions Proceedings and whether the High Court was justified in
remanding matter to the Trial Court without examining questions with regard to
maintainability of suit. When acquisition proceedings had been completed way
back then persons who had purchased suit land thereafter cannot have any right
to maintain suit for injunction against Authority.
2. Haryana State Electricity Boardv.Hanuman Rice Mills and Others-
There were two different suits. Reliefs claimed under the two suits were
different, as the first suit was for permanent injunction and the second was for
declaration and relief. Therefore the electricity board could not seek
enforcement of contractual liability of previous owner against purchaser of
property after disconnection of electricity supply and could not be considered
as consumer even though he seeks reconnection in respect of the same premises.
Recent English Cases on Injunction:1. Cartier International AG and othersv.British sky Broadcasting Ltd
It was a test case in which the court held that the trademark holders may be
granted site-blocking injunctions against internet service providers. Justice
Arnold considered the nature of the court's jurisdiction to award injunctive
relief and concluded that the general powers of the courts with equitable
jurisdiction ti grant injunctions were unlimited.
2.U&M Mining Zambiav.Konkola Copper Mines:
In this case the commercial court continued a worldwide freezing injunction in
support of sums awarded by a London arbitration tribunal despite “serious and
numerous” breaches of the claimant's duty to give full and frank disclosure.
The word ‘Injunction' as discussed in the project is an order of the court
directing the doing of some act or restraining the commission or continuance of
some act.The court has the discretion to grant or refuse this remedy and when
remedy by way of damages is a sufficient relief, Injunction will not be granted.
So basically, an Injunction is a kind of relief or a remedy provided by the
court to the party whose lawful rights are violated. The court directs the party
who is violating the rights of the other party either to stop doing such an act
which is violating the rights of the other party or to commence an act which
because of not being done is violating the rights of the other party. But as
said above, the Court has a discretion to grant or not to grant the injunction
and this is where the loophole lies. There can be chances of a bias and the
violating party could continue to violate the rights of the other party and the
suffering party could continue to suffer. So, this is one point where this
remedy in the form of an injunction goes weak. The Court and the Judiciary
should take care in order to avoid such biases and continue as a helping hand to
the common people.
Now talking about Extra Judicial Remedies, they are basically such remedies
where a person himself may have recourse to certain remedies outside the courts
of law. Now this again has its own advantages and disadvantages. The advantage
being that when people through self-help can solve petty issues, it becomes
easier for the Hon'ble Courts to concentrate on more important cases. But at the
same time, when people take a recourse to extra judicial remedies, there are
chances that at times, people under the name of ‘extra judicial remedies' may
use more than the force required to recover the property to which they are
entitled to people may use these as chances to take revenge with others with
whom they are not on good terms. So, these remedies need to be used very
cautiously and judiciously so that these continue to be the sources of help to
the people and not the sources of creating chaos and disorder in the society.
·Law of Torts- R.K. Bangia
·Law of Torts- Ratanlal and Dheerajlal
·Westlaw: Case Laws
·The Indian Contract Act- R.K. Bangia
 Mahadev v.Narayan,(1904)6 Bom LR 123.
 Australian Broadcasting Corporation v. Lenah Game Meats Pty. Ltd., (2001) 76
 36-42 of the Specific Relief Act(XLVII of 1963)as regards the granting or
withholding of injunction.
 Order 39,Code of Civil Procedure.
 AIR 1966 Gujarat 189
 1981 ALL.WC 68
 AIR 1977 Orissa 152
 AIR 1980 P&H 351
 AIR 1986 Kar 194
 AIR 1981 SC 1183
 ILR 1 Bom 550,Bhikaji v. Bapu Saju
 Sections 11 and 12 of The Indian Contract Act
 AIR 1998 Raj 129
 AIR 1990 Delhi 19
 Choyce Cases 117,21 Eng.Rep.72(Ch.1577)
 Baildon, Introduction to SELECT CASES IN CHANCERY AD 1364-1471 xix (Seldon
 Allen v. Dingley, Choyce Cases 113,21 Eng.Rep.70(Ch. 1576-1577)
 (2013) 3 SCC 66
 (2010) 9 SCC 145
 (2014) EWHC 3354 (Ch)
 (2014) EWHC 3250 (Comm)
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