Damages in Lieu of, or in Addition to, an Injunction

In one line

A plaintiff who asks for an injunction may also ask for money, either as well as the order or instead of it, but only if he asks, and if his suit is dismissed he may not ask afterwards.

In the words a student can write in an exam: section 40 of the Specific Relief Act 1963 provides that a plaintiff in a suit for a perpetual injunction under section 38, or a mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction, and the court may if it thinks fit award them; that no relief for damages shall be granted unless claimed in the plaint, with a proviso allowing amendment at any stage; and that "the dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach."

Why the section is needed

An injunction is discretionary under section 36, so a plaintiff may prove his right and still be refused the order: the delay was too long, the cost of compliance out of all proportion, or the interference trivial.

Without section 40 he would leave court with nothing, and would then have to start a fresh suit for damages. The section lets the court dispose of the whole dispute in one proceeding by awarding money where the injunction is refused, or in addition to it where the injunction does not repair the harm already done.

The provision itself

"(1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.

(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:

Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.

(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach."

Broken down

Sub-section (1): in addition to, or in substitution for

Note the contrast with section 21, and it is a clean comparison to draw.

Section 21(1), on specific performance, was amended in 2018 so that compensation may be claimed only "in addition to" performance, the words "or in substitution of" being removed.

Section 40(1) was NOT amended. It still allows damages "either in addition to, or in substitution for" the injunction. So a plaintiff seeking an injunction may still plead damages as a genuine alternative, while a plaintiff seeking specific performance may not.