Perpetual and Mandatory Injunctions

In one line

Section 38 says when the court will finally restrain a defendant, and section 39 says when it will go further and order him to undo what he has already done.

In the words a student can write in an exam: section 38 of the Specific Relief Act 1963 provides that a perpetual injunction may be granted to prevent the breach of an obligation existing in the plaintiff's favour, whether expressly or by implication; that where the obligation arises from contract the court shall be guided by Chapter II; and that where the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, an injunction may be granted in four cases. Section 39 provides that where, 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 and also to compel performance of the requisite acts.

Section 38: perpetual injunctions

"(1) Subject to the other provisions contained in or referred to by this Chapter, 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.

(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."

Sub-section (1): an obligation existing in the plaintiff's favour

"Obligation" is defined in section 2(a) as every duty enforceable by law, so the source may be a contract, a trust, a statute, an easement or the general law of torts.

"Whether expressly or by implication", so a duty need not be spelt out.

"Subject to the other provisions contained in or referred to by this Chapter" points to section 41, which lists twelve cases in which an injunction cannot be granted, and to section 40 on damages.

Sub-section (2): where the obligation arises from contract

The court shall be guided by the rules and provisions contained in Chapter II, that is by the specific performance rules in sections 9 to 25.