Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:05:51 PM
1. The Specific Relief Act, 1877.
1. Equity, Trust, & Specific Relief by B. M. Gandhi.
2. The Specific Relief Act (I of 1877) by Dr. Ch. Muhammad Hanif.
What is specific relief: It is a positive remedy. It aims fulfillment of an obligation and obtaining of the thing for which a person is entitled under a contract and of which he has been deprived. In another words it is compliance of a contract specifically, which has been refused to comply with. A person who is in possession cannot be ejected by the latter trespasser on the base that prior possessor or trespasser has not title. Court up-held the possession of prior trespasser.
In case of immovable property, case against the dispossession must be brought within 6 months to Court after dispossession.
Objects of specific relief: Following are the objects of specific relief:
1. Possession must be lawful as who comes for equity must do equity and come with clean hands. Ejection from lawful possession invites lawsuit against unlawful dispossession. It also invites claim against unlawful ejection.
2. No unlawful means are used for eject-ment of possessor even dispossession is caused unlawfully. Only courts are competent authority to grant specific relief to the affected party.
3. Person who comes for specific relief must do equity and refrain from the use of unlawful means.
4. Specific relief aims that law should not be taken into hands of an individual and just State should remain sole authority in granting the relief to the aggrieved party.
Specific moveable property: Any property, which is ascertained (confirmed or proved) or ascertainable, is called specific moveable property. Anything, which is equivalent to the worth of it, is not supposed specific moveable property. In this way government securities and share certificates are ascertainable therefore are specific moveable properties but the cash which is even equivalent to such documents is not specific moveable property because it is not ascertainable.
How the specific relief is granted: Following are the methods by which it is granted:
1. Relief and remedy: The person who has been dispossessed wrongfully and unlawfully is granted relief and remedy against such illegitimate act.
2. Re-delivery of goods: Goods which have been converted or stolen are redelivered to its principal owner even he has not title mere on the grounds of his immediate possession and possession in fact.
3. Compel to do obligatory act: It is specific performance of the contract in which parties under obligation to perform contract is compelled to do for which party is obliged to do certain things. Here Court orders to do obligatory act.
4. Prevention to do act obligatory: A party is compelled to prevent to do the act for which party is obliged not to do.
For example, party is not allowed to resell the plot to another party. That party may be compelled not to do that act being obligation.
5. By declaration: Court may declare the right of party by way of decree other than award of compensation. It is relief without consequential compensation.
6. By appointing receiver: Receiver is an officer of the Court who collects and receives rents, profits, produce, or things in question. He also provides safety to the property in dispute pending litigation and to preserve property in danger being destroyed.
A has dispossessed/ejected B from his house. B is may be owner, lessee, or bailee. This dispossession or eject-ment was unlawful and had not followed notice under agreement. This dispossession of possessee may invite legal proceedings for re-entry or re-delivery under specific performance.
When the right of specific performance arises: It arises when right is infringed. A right is violated by breach of contract, trespass, and unlawful dispossession. A was tenant in house of B for one year. B dispossessed A before completions of tenancy period without serving notice required under agreement or after expiry of period but with unlawful means. A may bring lawsuit against B for re-entry or re-delivery. Only notice and/or lawful means may give right to B for re-entry or dispossession.
A (seller) agrees to sell
B (purchaser) property for Rs. 500,000/-. B pays Rs. 100,000/- as
an advance and agrees to pay balance amount of Rs. 400,000/- till
1. A is bound to do something, which is specifically provided in contract. It is delivery of property. He may be compelled to do so.
2. A is bound not to do which is not provided in contact. A is not allowed to refuse to deliver the property. Here preventive relief is provided by stay order.
3. A is bound to refrain to do something, which is in violation of contract’s provisions. A cannot sell the specific property to third party. Court may declare the right of B and it is called declaratory right.
Lawsuit in case of moveable property must be brought into Court within one month but it extends upto six months in case of immovable property.
S. 11 of Specific Relief Act lays down provisions in which contract cannot be specifically enforced. When a trustee makes contract, which is in excess of his powers or in breach of trust, cannot be specifically enforced.
For instance, A is trustee on a certain land and empowered to lease out such land for a period of ten years. He leases out that land for ten years. It is neither excessive use of his powers nor breach of trust. After the expiry of ten years he renews the lease agreement for further period. It is excessive use of his powers thus this contract cannot be specifically enforced as it is in excess of A’s powers as a trustee.
A trustee sells trust property below than of market price or a director of company sells the company property without proper sanctions are the instances of excessive use of powers therefore they are set aside and are not able to perform or enforce specifically.
Part performance of contract: Following are the cases in which part performance of contract is enforced specifically u/s 13 to 17 in contrast to S. 56 of The Contract Act:
1. Partially cessation of contract: According to Contract Act, performance of the agreement to do impossible act is void. Consequent impossibility also renders contract void.
According to Specific Relief Act, when subject matter ceases to exist at the time of its performance, it does not render performance of contract impossible wholly. Inevitable accident is no reason to show inability to perform contract.
2. Part performance of contract where impossibility is small: Contract is made to perform and not to keep it unperformed. Non-performance of small portion of contract puts in payment of compensation where compensation is admitted in money.
There may be a contract small portion of that may remain unperformed due to certain reasons. In this case where party remains unable to perform contract wholly and unperformed part is small and admits compensation in money, Court may direct defaulter for the performance of contract and awards compensation in money for the portion unperformed.
For example, A contracts with B for the sale of 100 acres land. Later on it reveals (turns out) that A is only owner of 95 acres and rest five acres are related to C who does not agree to convey his five acres. In a suit Court may direct A for the conveyance of 95 acres to B along-with compensation in money for rest five acres.
Here small portion means unsubstantial or immaterial or non-essential part of contract.
3. Part performance of contract where impossibility is large: There may be a case in which substantial part of contract becomes impossible to perform. Neither considerable part is performed nor compensation in money is admitted. Court may direct seller for the performance of contract specifically provided vendee waives off his rights including further performance and compensation against deficiency or loss of damage.
Vendee would also pay full purchase money, which was agreed at the time of contract even than large part of contract is impossible to perform due to imperfect title.
For instance, A contracts to sell B 100 bushels (hamper, creel, basket, crate, bin, hopper) of wheat. It reveals later on that A is unable to convey half of the bushels being related to other person. Court may direct A in suit for the performance of contract upto the extent of possibility provided vendee waives off his right of further performance and pays full purchase money.
4. Performance of independent part of contract: There may be case where contract consists on several independent parts some of which are able to perform and rest are impossible to perform. Independent part or parts, which are possible to perform, may be enforced specifically. Court may direct defendant for the performance of independent part of contract performance of that is possible. For this purpose contract must be separable without interference of Court however courts are not competent to separate the parts of contract.
5. Specific performance of part of contract: There may be three conditions where part performance of contract may be enforced specifically. That three cases can be summed up as:
(1) Where unperformed part of contract is small or unsubstantial.
(2) Where unperformed part of contract is large or substantial.
(3) Where performance of independent part of contract is possible.
Only these are three cases where Court may direct for specific performance of part of contract.
Rights of vendee (purchaser) against vendor (seller) with imperfect title: Following are the rights of vendee against vendor having imperfect title:
1. Performance of contract: Where vendor or lessor subsequently sells the property or further leases the property, vendee may compel him for the performance of the contract already made with vendee.
2. Procure of concurrence: Where the acknowledgement of the other persons is necessary to validate the title and they are bound to convey at the request of vendor, vendee may compel the vendor for procure of such concurrence.
3. Redemption and conveyance: Where property is mortgaged for an amount less than purchase money and only vendor has right of its redemption, vendee may compel to vendor to redeem it and convey to vendee.
4. To receive back deposit: Vendee may compel to vendor for the return of deposit when vendor is defeated in a suit of specific performance on the grounds having imperfect title. Deposit includes the cost of suit. Vendee may also demand interest on deposit incurred on suit.
5. Lien on property: Vendee may also establish lien on the property of vendor, which was agreed to sale or let.
Specific performance of contracts: Following are cases in which specific performance of contracts is enforceable:
1. Where a part of contract cannot be specifically performed but its non-performance admits of compensation and the part left unperformed is of small value, the Court will allow specific performance of so much of the contract as can be performed and will allow compensation for the rest. In brief where obligation in performance of a trust arises.
For example, contract by a beneficiary of a trust to sell his right in trust.
2. Where damages are not evaluated. Where party is unable to perform the whole of his part of contract and the part so left is unperformed. For instance, A agrees to sell B a painting of a deceased painter and B agrees to buy it. Later on B refuses to buy it. A may compel B specifically to perform this contract, because there is no standard for the evaluation of the actual damage caused by refusal of B by its non-performance.
3. Where there compensation in money is insufficient or inadequate. There are the contracts in which scarce item is agreed to deliver or perform but later on refused.
For example, A agrees to sell B shares of a company, which are limited in number and not always to be had in the market, and their possession carries with it the status of a shareholder, which cannot otherwise B procure. Later on A refuses to perform contract, here B can compel A to do so. In another example, A agrees to sell B certain parcel of land, only available in certain area. Later on A refuses to perform contract. B can compel A to sell it specifically because its relief may be inadequate.
4. Where monetary compensation is not recoverable. For instance, defendant has gone bankrupt or insolvent.
Contracts which are not enforceable specifically u/s 21:
1. Where adequate relief is admitted: Contract to pay a sum of money in installments. Contract non-performance of which admits an adequate relief in money cannot be specifically enforced. Contract in which agreement is made to lend money is not specifically enforceable. Neither borrower can be compelled to accept loan, nor borrower can compel for the compulsory advance of money. If in the opinion of the Court damages are an adequate relief, specific performance of contract shall not be decreed.
For example, A agrees to sell B, 40 chairs at Rs. 500/- each. This is not specifically enforceable because an adequate relief can be granted.
2. Court being incapable to supervise: Contracts incapable of supervision by courts such as having minute or numerous details or dependant on personal qualifications or violation of parties or otherwise in which Court become unable to enforce specifically its material terms.
For instance, contract of personal service, to employ person on personal services, to complete library work, to cultivate land in particular manner, for paint of picture, to marry or instances in which either minute or numerous details are involved or dependant on personal qualification, thus not enforceable specifically in its material terms.
3. Uncertain contract: Contract, which is not specifically certain, is not specifically enforceable. Terms and conditions of contract relied upon must be precise and accurate. Contract, which is unable to interpret, is not specifically enforceable but damages can be prayed.
For example, A agrees to give B his house for the sale of his goods and to furnish him with the necessary appliances. Later on A refuses to perform his contract. This case is one for compensation and not for specific performance, the amount and nature of the accommodation and appliances being undefined.
4. Where nature of contract is revocable: A contract nature of, which is revocable, is not specifically enforceable.
For instance, a contract for a partnership without any time fixed for its duration cannot be specifically enforced.
5. Violation of contract: Contract involving breach of trust or excessive use of power is not specifically enforceable. Court protects the interest of beneficiary and refrains to specifically enforce contract which are in excess of powers or breach of trust.
For example, a trustee is empowered to lease out certain land for ten years. Its renewal after expiry of ten years shall amounts breach of trust.
Director can dispose of company’s property with prior sanction in meeting from shareholders. If he contracts to sell property without any such sanction shall amount excessive use of power thus not specifically enforceable.
6. Ultra vires: Ultra vires of company cannot be specifically enforced. Contract made by or on behalf of company, which is not within scope of powers, conferred by the Memorandum of Association (MOA), amounts ultra vires, thus not specifically enforceable.
For instance, a company is formed for the manufacturing of tractors, makes chemicals that Memorandum of Association (MOA) does not allow, amounts ultra vires, therefore not specifically enforceable.
7. Time barred contract: A contract continuity of which exceeds than three years also falls in this category.
For instance, Continuous duty as legal advisor or medical advisor for a period of fifteen years falls, u/s 21(g).
8. Non-existent subject matter: Where subject matter is non-existent at the time of making contract and both parties are under mistake of fact is not specifically enforceable.
For example, A agrees to sell B a horse. It turns out later that at the date of contract, horse had been died. Contract cannot be specifically enforced.
For whom contracts may be specifically enforced u/s 23: Specific performance of contract may be obtained by competent person such as:
1. Any party: Any party to contract.
2. Interested party: Representative in interest, or the principal, of any party to contract can file suit for specific performance. They shall cease their right to sue in case:
(1) Where learning, skill, solvency, or any personal quality of such party is a material ingredient in contract.
(2) Where contract provides against assignment but he shall be entitled to specific performance in case his part of contract has already been performed.
3. Entitled person for family settlement: Any person beneficially entitled under contract of settlement on marriage or a compromise of doubtful right between members of same family.
4. Remainder-man: Remainder-man is entitled to specific performance where tenant for life enters into contract in due exercise of his power.
5. Reversioner in possession: Reversioner in possession, where agreement is a covenant entered into with his predecessor in title and reversioner is entitled to the benefit of such covenant.
6. Reversioner in remainder: Reversioner in remainder, where the agreement is such a covenant and the reversioner is entitled to the benefit thereof and will sustain material injury by reason of its breach.
7. New company: New company, which arises out of amalgamation, when a public company has entered into a contract and subsequently, becomes amalgamated with another public company.
8. Promoter: Where promoter has made contracts before incorporation of company and company has not ratified his contract.
Non-enforcement of contract except with variation u/s 26: For whom contracts cannot be specifically enforced except with a variation. Plaintiff cannot obtain specific performance, except with variation set up in defence by defendant in cases, such as:
1. Varied terms of contract: Where the terms of contract are different from that which defendant supposed it to be when entered into due to fraud or mistake of fact.
A and B sign a bond making themselves liable upto Rs. 1,000/- each. In a suit they proves that word “each” is inserted by mistake that the intention was that they should give a joint bond for Rs. 1,000/-.
2. Contract by act of fraud: Where the defendant entered into contract under a reasonable misapprehension as to its effect between himself and plaintiff due to fraud, mistake, or surprise.
For example, A sues B to compel for specific performance of a contract to buy a dwelling house. B proves assumption of inclusion of an adjoining yard, and the contract as so framed as to leave it doubtful whether the yard was so included or not. The Court shall refuse to enforce the contract, except with the variation set up by B.
3. Contract by misrepresentation: Where defendant has entered into contract relying upon some misrepresentation by plaintiff or upon some stipulation on plaintiff’s part, which adds to contract, but which he refuses to fulfill.
For instance, A makes contract with B to let wharf together with strip of A’s land delineated in a map. Before signing contract B orally proposes full liberty to substitute for the strip mentioned in map for which A was assented. A cannot obtain specific performance except the variation set up by B.
4. Uncalculated legal result: Where production of legal result in contract was not calculated which parties had object to produce.
For example, A and B negotiate for the purpose of securing land for B for his life, with remainder to his issue. They execute a contract which confers an absolute ownership on B. The contract so framed cannot be specifically enforced.
5. Contract of variation: Where parties have contracted to vary it subsequently.
For instance, A agrees to let his house to B at rent Rs. 100/- per month, putting first into tenantable repair. Later on it turns out that house at no worth repairing. A with consent of B pulls it down and erects new building in its place and B agrees to pay Rs. 120/- rent per month, orally. B then sues for the enforcement of specific performance of the contract writing. He cannot enforce it specifically except with the variation made by the subsequently oral contract.
Against whom contract may be specifically enforced u/s 27: Specific performance can be enforced against:
1. Either party: Either party in contract.
2. Claimant of title: Any person claiming title except transferee for value who has paid his money in good faith and without notice of the original contract.
For instance, A agrees to convey certain land to B on particular day. A, dies before the day comes. B may compel to legal heirs or other representative in interest of A to perform the contract specifically.
3. Displaced claimant: Any person who claims under title and defendant has displaced him, though prior to contract and plaintiff knows it.
4. New company: Where a public company enters into contract and later on becomes amalgamated with another public company. The new company shall be responsible for all previous contracts.
5. Promoter: Where the company has ratified the contracts made by promoters prior to the incorporation of the company.
For whom contracts cannot be specifically enforced u/s 24: Following are the persons for whom contracts cannot be specifically enforced:
1. Defective character: Where character of person is defective by way of fraud, negligence, void-able contract, and he remains unable to recover compensation due to his own fault.
For example, A, act as agent of B in sale proceed of a house but in reality he does not act as agent of B but on his own account. This contract cannot be specifically performed in favour of A, because his defective conduct has deprived him from legal remedy.
2. Incapable person: Who become incapable like mentally or physical condition or bankrupt or insolvent or by violation of essential clauses of contract partly or wholly by way of fraud or contravention of the contract or variance or subversion of contract.
For instance, A, contracts B to sell a house and to become as a tenant for ten years at specified annual rent from the date of sale. Later on A becomes insolvent and becomes unable to pay rent. Neither he nor his assignee can enforce specific performance of the contract.
In another example, A, leases out land to B for cultivation but B commits waste and treats the land in un-husband-like manner. B cannot enforce specific performance of the contract.
3. Where remedy is admitted: One who has chosen remedy against the breach of contract cannot enforce contract specifically. Since he has already obtained satisfaction therefore he cannot enforce specific performance of contract.
For instance, A agrees to sell B certain books on certain date. A fails to perform contract. B sues A and obtains compensation for the breach. B cannot obtain specific performance of the contract.
4. Where party knows facts: One who already had notice of the right of third party in a contract. Where contract of sale is made and purchaser was aware the fact about the right of third party, he cannot enforce contract specifically.
5. Defective title: U/s 25, whose title is defective for selling or letting the property.
For example, A sell property to B which in-fact belongs to C and C has not authorized A to do so. A cannot enforce specific performance.
6. Non-acquisition of full right: Where seller has not acquired the full right to sell property.
For instance, A, gives his land to trustees, declaring that they may sell it with written consents of B. B gives his general assents for its sale. Trustees sell the property to C. C refuses to perform contract. Trustees cannot enforce the contract specifically as in absence of B’s written consents to the particular sale.
7. Prior settlement: One who has made settlement prior to enter into contract.
For example, A has possession of certain land and agrees to sell it to C. Later on it turns out that A claims as heir in the estate of B who has left the country several years ago and is generally believed to be dead, but there is no sufficient proof of it. A cannot compel C to perform the contract specifically.
Rectification of instrument u/s 31: Instrument is a written document, which may include intention, covenants, settlement either family or otherwise, contracts, special covenant, or Will. It assigns, creates, extinguishes, and transfers of rights and obligation. It must be valid and fulfill the intention of parties. There are certain mistakes in instruments, which require to be rectified.
Fraud or mutual mistake of parties in contract may put it in situation where it may not express their intention. Either party or representative-in-interest may institute a suit to have the instrument rectified.
If proved, fraud or mistake, in framing instrument, and Court ascertains the real intention of the parties may in its discretion rectify the instrument keeping in view of the interest of third party. Interest of third person should not be infringed.
For instance, A agrees to sell house to B and one of three gardens adjacent to it. In the execution of the instrument, fraudulently B includes all three gardens. This conveyance may be rectified as against B. Where a garden is leased out to third party, cannot be rectified because interest of third party is effected.
Presumption as to intent of parties: During the process of rectification Court has to regard the equitable conscience of the parties concerned. Basic principle behind it is “he who comes into equity must come with clean hands”.
Principals of rectification: Two points are noteworthy while rectifying the instrument. First intention of the instrument made, and secondly intention of its legal consequence is important. “Equity looks to intent rather than form” applies here.
Specific enforcement of rectified instrument: A contract, which is in writing, first should be rectified and then may be prayed for its specific performance.
Rescission (annulment, revocation, abrogation, or cancellation) of instrument: Any contract may be rescinded. Only Court is competent to grant rescission. Following are the cases in which Court may rescind the contract:
1. Termination or violation: Where plaintiff terminates contract or contract itself is void-able.
If a field is sold which has right to use way and seller conceals this right while the execution of instrument, buyer can get the contract rescinded.
2. Unlawful contract: Contract is unlawful on the part of defendant for the causes not apparent on its face.
Where a person induces his client for transfer of his property in his name so that he may defraud his client’s creditors is an example of unlawful contract. Client may get the instrument rescinded.
3. Default in compliance: In default of compliance of decree of Court, contract may be got rescinded. Court compels for the return of profits received by him as possessor.
When an agreement is discovered to be void or where a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he has received it.
4. Rescission of mistake: Mistake per se will not justify a decree for rescission unless the parties can be restored to status quo ante. Placement of both parties in their original position is taken into consideration so that right of anybody may not infringe.
5. Alternative request of rescission if not specifically performed: The plaintiff bringing an action for the specific performance of a contract may claim in alternative that if the contract cannot be enforced it may be rescinded and delivered upto be cancelled. It should be taken into consideration that the alternative relief is based on the same state of facts though with different conclusions as to law.
6. Requirement of equity: Court may order for the making compensation to other party while rescinding. Basic principle of making compensation is “he who seeks equity must do equity.”
7. Order of cancellation, when, u/s 39: Where there is reasonable apprehension that if contract is left outstanding shall cause him serious injury, plaintiff may sue either for its declaration as void or void-able.
Essential conditions for the grant of relief in cancellation: Following are the essential conditions in which relief is granted:
1. Void written instrument: It is to be proved that either the written instrument is void or void-able against the plaintiff.
2. Serious injury: Plaintiff has reasonably apprehended the serious injury from the instrument being left outstanding.
3. Satisfaction of Court: In view of all the circumstances of the case the Court has considered it reasonable and proper to administer the protective and preventive justice as for.
4. Limitation for suit of cancellation of instrument: Where a suit is brought for cancellation of instrument, three years’ limitation period applies.
5. Copy of decree to Registration Officer: In case the cancelled instrument was got registered, Court also sends a copy of decree to the officer concerned for the endorsement in books for its cancellation.
For example, a ship, which is not seaworthy, cannot be insured as seaworthy. But if insured as seaworthy and later on discloses not seaworthy, its insurance may be cancelled.
6. Forged transfer: Instrument of forged transfer of land can also be got cancelled.
7. Failure in transfer: Instrument can also be got cancelled in which due consideration has been received but the agreed object has not been transferred against which consideration was received.
For example, A agrees to sell car for Rs. 250,000/- to B. B has paid the entire amount to A, but A has not delivered car as agreed. B may obtain the cancellation of instrument.
Declaration u/s 42: This section lays down rule regarding the suit instituted upon denial of interest or title in property or is case interested in denial of right or character. Court may declare that he is so entitled.
Essential conditions for maintenance a suit: Following essentials must be established for suit:
1. Plaintiff is entitled to any legal character or right as to property.
2. Defendant has denied or interested in denial the title of such character or right of plaintiff.
3. Declaration for which plaintiff has applied is the legal character or right.
4. Whether the plaintiff is able to seek further relief than a mere declaration of title, he must seek such relief.
Example: A has lawful possession of certain land. The inhabitant of neighboring village claims the right of way across the land. He may sue far a declaration that they are not entitled to the right so claimed.
Injunction: A is agreed to sell a property to B at Rs. 1,000,000/- out of which B paid Rs. 100,000/- as an advance. Balance payment is agreed to pay within two months. B is bound to pay whole of contract amount within the stipulated time period. A is bound to transfer property after the receipt of full payment. Both are responsible against each other. After making full payment, B attains the right of acquisition of property.
If A refuses to transfer the ownership to B upon full payment, B may invoke at the door of Court either for:
1. To do for which A is bound to do. A is bound to do which is his contractual obligation. He is bound to transfer ownership to B.
Court may order for specific performance and issues mandatory order. This order is issued against for which he has been deprived. Intention of contract is always considered to perform contract for transfer of ownership.
2. Refrain not to do for which he is not entitled. If A intends to transfer of ownership to third party which is C in this case, he may be got refrained to do so. This sort of prevention is called preventive relief. Court may order to prevent A to do so for which he bound not to do. Court prevents A to sell property to C (third party). It is prevention from the violation of right of B (the buyer). Since A is bound to do and not to do something, therefore Court may order to protect interest of B (the buyer). Tool, which is used to prevent person to refrain to do something, is called injunction.
There are two types of injunctions, i.e., temporary or interlocutory and permanent or perpetual injunction. There are two types of Court orders, i.e., mandatory injunction in which something is allowed to do and other one is probationary injunction in which something is prohibited.
There is another type of injunction that is given before happening of non-permissible action. A person may be doing his work diligently but seems to be wrong in future. An interim injunction can be issued against his future ill will.
Private injunctions are issued at once while government injunctions are given after serving a notice to government and hearing the government cause.
Definition: An order or decree by which a party to an action is required to do, or refrain from doing, a particular thing. Injunctions are either restrictive (preventive) or mandatory (compulsory). As regard time, injunctions are either interlocutory (interim) or perpetual (permanent). A perpetual injunction is granted only after the plaintiff has established his right and the actual or threatened infringement of it by the defendant; an interlocutory injunction may be granted at any time after the issue of the writ to maintain things in status quo. The Court must be satisfied that there is a serious question to be tried at the hearing, and that on the facts the plaintiff is probably entitled to relief. As injunction, once granted, is enforced by committal for contempt of Court for any breach.
Burney defines an injunction as “a judicial process by which one who has invade (attack, assault, trespass) or is threatening to invade the rights, legal or equitable of another restrained from continuing or commencing such wrongful act.”
According to Joyee it is “an order remedial, the general purpose of which is to restrain the commission or continuance of some wrongful act of the party informed.”
Lord Halsbory says in his Laws of England, “a judicial process whereby a party is ordered to refrain from doing or to do particular act or thing.”
Kinds of injunctions: There are three main kinds of injunctions, such as:
1. Temporary injunctions: As by its name is cleared that these injunctions are issued for a specified time or till the further order of the Court. Civil Procedure Code (CPC) regulates it. Injunctions are issued only against a named person. Equity acts in personam and an injunction must be addressed to the defendant personally. It is issued without hearing the case. It is granted during the case is pending.
2. Perpetual injunction: It is issued in term of decree after hearing the case and satisfaction of the Court. Defendant is ordered to stop to commit certain act, which is contrary to the right of plaintiff.
3. Mandatory injunction: When breach of trust or an obligation is object and performance of contract becomes necessary, Court may grant an injunction for prevention of breach complained.
When it is granted: It is granted to prevent a person to commit breach of an obligation existing in favour of the applicant. When defendant threatens the plaintiff, Court may grant injunction in the following cases:
1. Breach of trust: Where defendant is trustee of the property for the plaintiff and commits breach of trust.
2. Non-ascertaining damage: Where actual damage is not ascertainable or there is no standard of ascertaining the loss.
3. Inadequate relief: Where adequate relief in term of cash is not available.
4. Apprehension of inadequacy: Where there is apprehension that adequate relief could not be available.
5. Compulsion: When injunction becomes necessary.
6. Violation of contractual right: When contractual right is violated.
7. Legal right: When right is legal and violated.
8. Threatening: Where defendant threats the plaintiff.
9. Proof: Where it is proved that the right of the plaintiff is infringed.
10. Personal interest: There must be violation of personal right and not infringement of right of world at large as equity acts in personam and not in rem.
11. Existence of right: Right must be existent and present and not of the nature of future. If legacy is not distributed then no right is created.
Refusal of granting injunctions: Injunctions are refused in following cases namely:
1. Judicial proceedings: When such proceedings are pending in Court, Court may refuse to grant injunction.
2. Superior Court: When it is requested against the order of superior Court. Injunctions are always granted against the lower courts.
3. Enactment: Legislation process cannot be got effected from law making.
4. Official duty: Where government officer trespasses during official duty.
5. Criminal proceedings: When criminal proceedings are started they cannot be stopped. Civil and criminal courts cannot interfere in each other’s matters.
6. Specific enforcement: Where specific performance of the contract is not possible.
7. Public nuisance: Injunctions are refused in the cases of public nuisance, as equity acts in personam. Only personal interest is subject of injunction.
8. Defective conduct: Where plaintiff himself is wrong and his conduct is defective.
9. Personal interest: There must be violation of personal right. Where plaintiff has no personal interest injunction is refused, as equity acts in personam.
10. Alternative remedy: Where alternative remedy is available.