The equitable remedy of Injunction bears such a marked resemblance to certain
forms of the interdicts, which were granted by the Praetors under the Roman Law,
that it has been said by some authors to have had its origin in the Roman Law.
"Interdicts were certain forms of words by which the praetor either commanded or
prohibited something to be done: and they were chiefly used in controversies
respecting possession or quasi Possession."
- The form of the Interdict was usually:
I Forbid you to use violence, you
must produce, you must restore." -- " Vim fieri veto, exhibeas, restituas."
Writ was, therefore, used In three distinct forms or senses- prohibitory, restitutory and exhibitory. The prohibitory form was the one which it is said
resembles most clearly the Injunction which is in use in Courts of Equity to
day. As may be seen from the definition of interdicts given above, its Office
was, like the injunction, either to restrain the undue exercise of some private
right, to prevent the doing of threatened wrongs, or to secure the enjoyment of
property rights. Probably, more correctly, however, the Injunction may be said
to have had its origin with the origin and establishment of the Court of
Chancery in England.
The Court of Chancery has been said to have its origin,
and, in all probability it did in the decree of Edward III. After the creation
of the Courts of Common Law, there was still left in the King a reserve power to
hear petitions of his subjects, when, because of the restricted jurisdiction and
intricate and set forms of procedure in those Courts, they were unable to obtain
relief in the Courts of Common Law he was at liberty to appeal to the King.
These were termed matters of grace. Appeals of this sort becoming so numerous
during the reign of Edward III, an order was made by the King referring all
these matters to the Chancellor, who was one o f the Officers of the Select
Council of the King, and who was called "Keeper of the King's Conscience".
During the reign of Richard III a statute was passed, which had in view the
regulating of the business of the Court. During the reign of' Edward IV,
however, the jurisdiction of the Court became firmly established. The Injunction
has been called by one author, the "Strong arm" of the Courts of Equity.
- In the words of the same author it is a "Writ framed according to the
circumstances of the case, commanding an act which the Court regards
essential to Justice, or restraining an act, which it esteems contrary to
equity and good conscience." Without the Injunction, Courts of equity would
be without one of its strongest and most effectual remedies, without the
means of enforcing its Judgments. The definition given in Bacon's
abridgement is : "An injunction if a probhibitory writ, restraining a person from committing or doing a thing which
appears to be against equity and conscience."
Probably the first instance in which an injunction, was issued was during the
reign of Henry I, when one was issued in the following form:
Haimoi Dapifero et Haegoni de Rack, salutem. Prohibeo ne piscatorespescant in
Tamesia, ante piscaturam de Rovecestra Pe Ninvera, et ai ulterius in-venientur
piscantes, suit mihi forisfacti.
- The granting of injunction by Courts of Equity for many years, however,
met with the most bitter opposition on the part of Judges of the Courts of
Common Law. During the reigns of Richard II, Henry IV, Henry V and Henry VI,
Petitions were presented to the King, by the House of Commons, complaining
that Courts of Chancery were encroaching or the jurisdiction of Courts of
Common Law by the granting of subroenras and injunctions.
This opposition was felt particularly
during the reign of James I, during the pendency of the famous Earl of Oxford's
Case, reported in White & Tudor' s Leading Cases in Equity at Page 643, when,
upon the granting of an injunction by Lord Chancellor Ellesmere restraining an
action which was being tried before Lord Chief Justice Coke, a bitter contest
arose between these two learned jurists. The matter being at last referred to
the King, he, upon the advice of counsel decided in favour of Chancellor
Ellesmere, sustaining the jurisdiction of Courts of Chancery to grant
injunctions in such cases.
During the reign of Henry VII, Articles of impeachment were preferred against
Cardinal Wolsey for Judicial corruption and alleged misconduct in his Office of
Chancellor. Among the Articles were the following:
"21st. Also the said Lord Cardinal hath granted many "Injunctions by Writ, and
the parties never called there:
"unto, nor Bill put against them; and by reason
thereof, "divers of your Subjects have been put from their lawful "possession of
their lands and tenemants. And by such "means he hath brought the more party of
the suitors of "this your Realm before himself, whereby, he and divers of "his
servants 'have gotten much riches and your subjects "suffered great wrongs.
"26th. Also when matters have been near at Judgment "by Process at your Common
law, the same Lord Cardinal "hath not only sent Injunction to the parties but
also "sent for your Judges, and expressly by threats, commanding then to defer
the judgment, to the evident subversion "of your Laws, If the Judges would so
Courts of equity having become firmly established the remedy of injunction was
applied by such Courts, not without great opposition, at first, on the part of
Judges of the Courts of Common Law, in all cases where, in equity and good
conscience the parties were entitled to such relief, and where the Courts of
Common Law were unable to grant adequate relief, subject, of course, to certain
rules of Court, some of which will be dwelt on more at length later. From the
aforesaid historical background it is manifest that the origin of the power to
grant injunction is from equity, hence the exercise of the discretion by the
Courts is to be governed mainly by equitable considerations.
The law of injunction in India is having its origin in the Equity Jurisprudence
inherited from England who borrowed it from Roman Law. It is basic principle of
our law that if there is a right there should be a remedy. An injunction is a
Judicial Remedy prohibiting persons from doing a specified act called a
restrictive injunction or commanding them to undo some wrong or injury called a
mandatory injunction and may be either temporary, interim or interlocutory or
Relief of injunction cannot be claimed as of right. It is discretionary,
equitable relief. The relief of injunction must be granted where it is
absolutely necessary. It may be granted where it would help in preservation of
peace and public order. Where there is possibility of breach of peace of public
order, the Court ought to proceed with caution. An injunction is a remedy
against an individual and should be issued only in respect of acts done by him
against whom it is sought to be enforced.
An Injunction is a Judicial process, whereby, a party is required to do, or to
refrain from doing, any particular act. It is a remedy in the form of an Order
of the Court addressed to a particular person that either prohibits him from
doing a continuing to do a particular act (Prohibitory injunction); or orders
him to carry out a certain act (Mandatory Injunction.)
An injunction is defined in Halsbury's Laws as:
A Judicial process, whereby, a
party is ordered to refrain from doing or to do a particular act or thing.”
Oxford dictionary meaning of word Injunction is:
A Judicial warning or a Judicial order restraining a person from an action or
compelling a person to carry out a certain act.
In India, the remedy of injunction is provided as a statutory relief in the
Specific Relief Act, 1963 and the Civil Procedure Code, 1908. They are broadly
categorized as temporary or permanent Injunctions. Interim injunctions are
ancillary to the main relief which the Plaintiff will be entitled to if he is
successful in establishing a prima facie case and balance of convenience, and
also if the Court finds that the Plaintiff will suffer irreparable loss and
The nature of a temporary injunction is protective with the objective of
preventing any future possible injury and to maintain status quo until final
adjudication. A permanent injunction, as the name suggests, continues forever
under which the Defendant is perpetually enjoined from the assertion of a right
or from committing an act injurious to the rights of the Plaintiff. It can be
granted only after deciding the case on merits at the conclusion of the trial
after hearing both the parties to the suit.
Once a permanent injunction is
granted, the temporary injunction ceases to exist separately and may merge into
the decree of permanent injunction.
The objects of granting permanent injunction
- Preventing continuous injury and violation of legal right of Plaintiff;
- Curtailing multiplicity of Judicial proceedings due to continuous
- Providing equitable and complete relief to Plaintiff where damages do
not solely suffice;
- Preventing breach of an express or implied legal obligation existing in favour
Therefore, the remedy of injunction is provided to achieve maximum efficiency in
rendering judicial decisions such that their practical application does not
Indian Courts regulate the granting of a temporary injunction in accordance with
the procedure laid down under Sections 94, 95 and Order XXXIX of the Civil
Procedure Code, 1908 whereas, temporary and perpetual injunctions are prescribed
by Sections 36 to 42 of the Specific Relief Act, 1963.
It has been termed as a preventive relief which is granted at the discretion of
the Court by injunction which may be temporary or perpetual. Section 37 (1) of
the Specific Relief Act, 1963 deals with the temporary injunctions which are
such as are to continue until a specified time, or until further orders of the
Court, and they may be granted at any stage of the suit or proceedings and are
regulated by the Code of Civil Procedure, 1908.
From the aforesaid it is clear that there can be permanent injunction which is
granted as a final relief in the suit and there can be temporary injunction
which may be passed at any situation of the suit or proceedings for preservation
of the property. Both have to be discussed separately.
As is clear from Section 37 (2) of Specific Relief Act, 1963, 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.
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
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 Vs 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 III, 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
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 may 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 them...so, 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."
So far as the grant of temporary injunctions Is concerned, it used to be a small
step during the progress of the suit or proceeding towards the preservation of
its subject matter which could be property or any other right has now gained
enormous importance and sometimes it becomes even more important than the final
result of the suit or proceedings with the change of the time.
The society in
general and Judiciary in particular is passing through a very trying time where
the moral values are at their lowest ebb and there does not appear any prospect
of coming them up in near future. The dilemma of the Judicial Court or Tribunal
is that initially it has to treat the truth and falsehood at par and has to give
the same treatment, protection and hearing until it concludes its investigation
to find out which is right or wrong, false or true.
This process takes a long
time during which by some interim measure the subject matter of the dispute
between the parties has to be preserved, and it is this anxiety for preservation
of the property on the part of the Judicial Court, which is misused and abused
by the side which has come before the Court with a wrong or false case or a
doubtful case which had been filed only to take a chance.
This category of the
unscrupulous litigant once succeeds in obtaining the interim injunction in their favour, they try to prolong proceedings and cause irreparable damage and harm
not only to their opposite side but also to the reputation and faith of the
public on Courts. Hence, it is high time that the Courts at all levels should be
very cautious, alert and vigilant while granting temporary injunction during
progress of the suit or proceeding.
Section 37 (1) of the Specific Relief Act,
1963, deals with the temporary injunctions which are such as are to continue
until a specified time or until further orders of the Court and they may be
granted at any stage of the suit or proceedings and are regulated by the Code of
Civil Procedure, 1908. Section 94 (c) and (e) of Code of Civil Procedure, 1908
contain provisions under which the Court may in order to prevent the ends of
Justice from being defeated, grant a temporary injunction or make such other
interlocutory order as may appear to the Court to be just and convenient.
Section 95 further provides that where in any suit a temporary injunction is
granted and it appears to the Court that there were no sufficient grounds, or
the suit of the Plaintiff falls and it appears to the Court that there was no
reasonable or probable ground for instituting the same.
The Court may on
application of the defendant award reasonable compensation which may be to the
extent of the pecuniary Jurisdiction of the Court trying the suit. Further a
proviso was added in Rule 3 which provided that where it is proposed to grant an
injunction without giving notice of the application to the opposite party, the
Court shall record the reasons for its opinion that the object of granting the
injunction would be defeated by the delay and require the applicant to serve the
copy of the order of injunction along with copy of the application, affidavit,
plaint and other documents relied on by him.
Further, he has also been required
to file on the same day on which the injunction is granted, an affidavit stating
that the requirements contained in Proviso (a) have been complied with. Rule 3
(e) further contains a very important provision which requires the Court to make
an endeavour to finally dispose of the application within 30 days from the date
on which the Injunction was granted and where it is unable to do so it shall
record its reasons for such inability.
Thus by introducing the aforesaid
amendment an attempt was made to minimise the hardship and harassment caused by
the injunction orders passed ex-parte. Identical provisions were included in
Article 226 of the Constitution of India by substituting Clause (3) thereof
which provides that if an interim order is passed ex-parte and the party
concerned makes an application to the High Court for vacation of such order, the
High Court has to dispose of the application within a period of two weeks and if
the application is not so disposed of, the interim order, on the expiry of that
period shall stand vacated.
An injunction is an equitable remedy and as such attracts the application of the
maxim that he who seeks equity must do equity. Granting of injunction is
entirely in the discretion of the Court, though the discretion is to be sound
and reasonably guided by Judicial Principles. The power to grant a temporary
injunction is at the discretion of the Court. This discretion, however, should
be exercised reasonably, judiciously and on sound legal principles.
Injunction should not be lightly granted as it adversely affects the other side.
The grant of injunction is in the nature of equitable relief, and the Court has
undoubtedly power to impose such terms and conditions as it thinks fit. Such
conditions, however, must be reasonable so as not to make it impossible for the
party to comply with the same and thereby virtually denying the relief which he
would otherwise be ordinarily entitled to.
The general rule is that grant of an injunction is a matter of discretion of the
Court and it cannot be claimed as of right. However, the discretion has to be
exercised in a judicious manner and in accordance with the provisions relating
to the grant of injunction contained in the specific Relief Act, 1963. It is
well settled that no interim injunction would be issued if final relief cannot
Written By: Dinesh Singh Chauhan, Advocate -
High Court of Judicature,
Email: [email protected]
, [email protected]