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Injunction and Extra Judicial Remedies under Tort Law

Injunction

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.[1]

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.[2]

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 the injunction.

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 or the publication of manuscripts, letters and other unpublished matter.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 India

The right to an injunction is governed in India by the Specific Relief Act.[3]Grant of temporary injunction is governed by the Code of Civil Procedure.[4]
Section 36 of the Specific Relief Act 1963 discusses how preventive relief is granted.

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 1963.

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 adequate relief;
d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.
Section 39 of the Specific Relief Act discusses mandatory injunction.

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 criminal matter;
e) to prevent the breach of a contract the performance of which would not be specifically enforced;
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 are:-

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 publishing information.

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 hundred.
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 Injunctions

1) 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]
5) There must be breach of an obligation or infringement of a legal right.[6]
6) The possession must be a lawful possession.[7]
7) In the absence of irreparable loss, damages is the remedy.
8) Where there is an efficacious relief, no injunction should be granted.[8]
9) Juridical possession is also a valid ground to grant injunction.[9]
10) Question of title may be incidentally gone into, while granting an injunction.[10]
11) Injunction cannot be granted in case of illegal agreement.[11]
12) No injunction shall be granted in case of an agreement with minor.[12]

Basic Case Laws
Basic Indian Cases on Injunction
1) Chaitanya Singh v. Maharishi Dayanand Saraswati University[13]-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[14]-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 pins.

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[15]-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.[16]

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.[17]

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.[18]

Recent Indian Cases on Injunction
1) The Commissioner, Bangalore Development Authority and Anr.v.Brijesh Reddyand Anr[19]-
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[20]-
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 and ors[21]:
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[22]:
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.

Conclusion
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.

Bibliography
·Law of Torts- R.K. Bangia
·Law of Torts- Ratanlal and Dheerajlal
·Westlaw: Case Laws
·articlesonlaw.wordpress.com
·manupatra.com
·The Indian Contract Act- R.K. Bangia

End-Notes
[1] Mahadev v.Narayan,(1904)6 Bom LR 123.
[2] Australian Broadcasting Corporation v. Lenah Game Meats Pty. Ltd., (2001) 76 ALJR 1.
[3] [3]36-42 of the Specific Relief Act(XLVII of 1963)as regards the granting or withholding of injunction.
[4] Order 39,Code of Civil Procedure.
[5] AIR 1966 Gujarat 189
[6] 1981 ALL.WC 68
[7] AIR 1977 Orissa 152
[8] AIR 1980 P&H 351
[9] AIR 1986 Kar 194
[10] AIR 1981 SC 1183
[11] ILR 1 Bom 550,Bhikaji v. Bapu Saju
[12] Sections 11 and 12 of The Indian Contract Act
[13] AIR 1998 Raj 129
[14] AIR 1990 Delhi 19
[15] 1998(2)GLT263
[16] Choyce Cases 117,21 Eng.Rep.72(Ch.1577)
[17] Baildon, Introduction to SELECT CASES IN CHANCERY AD 1364-1471 xix (Seldon Society Vol.10)
[18] Allen v. Dingley, Choyce Cases 113,21 Eng.Rep.70(Ch. 1576-1577)
[19] (2013) 3 SCC 66
[20] (2010) 9 SCC 145
[21] (2014) EWHC 3354 (Ch)
[22] (2014) EWHC 3250 (Comm)

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