Preventive Relief, and the Kinds of Injunction

In one line

Part III of the Act is about stopping things rather than undoing them, and its first two sections say how preventive relief is granted and divide injunctions into the two kinds the rest of the Part is built on.

In the words a student can write in an exam: section 36 of the Specific Relief Act 1963 provides that "Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual." Section 37 provides that temporary injunctions are such as are to continue until a specific time, or until the further order of the court, may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure 1908; and that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant being thereby perpetually enjoined from the assertion of a right, or from the commission of an act, contrary to the rights of the plaintiff.

What preventive relief is for

Every remedy so far has looked backwards. Damages compensate for a wrong done; specific performance compels a promise already broken; rescission and cancellation undo what has happened.

Preventive relief looks forward. Its object is to stop a wrong being done, or continued. That matters most where damages would be a poor substitute:

• the harm is continuing, so an award today is overtaken tomorrow;
• the harm is irreparable, as with the demolition of a heritage building or the disclosure of a secret;
• the harm is unquantifiable;
• a series of separate suits would otherwise be needed, so an injunction prevents a multiplicity of proceedings.

An injunction is a court order directing a person to refrain from doing something, or, in the mandatory form, to do something.

The provisions

"36. Preventive relief how granted. Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual."

"37. Temporary and perpetual injunctions. (1) Temporary injunctions are such as are to continue until a specific time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.

(2) 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 36: discretion

The word to notice is "discretion", and it should be contrasted at once with section 10.

The 2018 amendment removed the discretion from specific performance: section 10 now says the court shall enforce. It made no such change to section 36. Preventive relief remains discretionary, and a court may refuse an injunction even where a legal right is made out.