Injunction and Specific Restitution of Property

In one line

An injunction stops a wrong from continuing or beginning, and specific restitution gives the plaintiff back the very thing he lost.

In the wording a student can write in an exam: besides damages, a plaintiff in tort may obtain an injunction, which is an order restraining the defendant from doing or continuing a wrongful act or, in its mandatory form, compelling him to undo it, and specific restitution of property, which is the recovery of the property itself; injunctions in India are governed by sections 36 to 42 of the Specific Relief Act 1963 and recovery of property by sections 5 to 8 of the same Act.

Injunctions: the statutory scheme

Section 36 provides that preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

Section 37 defines the two: a temporary injunction continues until a specified time or until further order of the court, and is regulated by the Code of Civil Procedure 1908; a perpetual injunction can be granted only by the decree made at the hearing and upon the merits of the suit, and thereby the defendant is perpetually enjoined from asserting a right or committing an act which would be contrary to the plaintiff's rights.

Section 38 governs the perpetual injunction. It may be granted to prevent the breach of an obligation existing in the plaintiff's favour, and, where the obligation arises from contract, the court is guided by the rules in Chapter II. Where the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction where the defendant is trustee of the property for the plaintiff, where there exists no standard for ascertaining the actual damage caused or likely to be caused by the invasion, where the invasion is such that compensation in money would not afford adequate relief, and where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Those four situations are the answer to "when will a court grant an injunction rather than damages", and they should be reproduced.

Section 39 governs the mandatory injunction: 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 complained of and also to compel performance of the requisite acts.

Section 40 allows damages to be awarded in addition to or in substitution for an injunction, and requires the plaintiff to claim them in his plaint, though the court may allow an amendment.

Section 41 lists the cases in which an injunction cannot be granted, among them: to restrain a person from prosecuting a pending judicial proceeding, except to prevent a multiplicity of proceedings; to restrain proceedings in a court not subordinate to the one from which the injunction is sought; to restrain a person from applying to a legislative body; to restrain proceedings in a criminal matter; to prevent the breach of a contract which could not be specifically enforced; to prevent an act of which it is not reasonably clear that it will be a nuisance; to prevent a continuing breach in which the plaintiff has acquiesced; where equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in the case of breach of trust; and where the conduct of the plaintiff or his agents disentitles him to the assistance of the court.