Perpetual and Mandatory Injunctions

This is an important link and it is easy to miss. An injunction to prevent the breach of a contractual obligation is, in substance, specific performance of the negative side of the contract, so the same conditions govern: the bars in sections 11(2), 14 and 16, and the defences let in by section 9. Section 41(e) then completes the circle by forbidding an injunction to prevent the breach of a contract the performance of which would not be specifically enforced, and section 42 carves the exception for negative agreements.

Sub-section (3): the four property cases

Where the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property:

(a) The defendant is trustee of the property for the plaintiff. The relationship itself justifies restraint.

(b) There exists no standard for ascertaining the actual damage caused or likely to be caused.

(c) Compensation in money would not afford adequate relief.

(d) The injunction is necessary to prevent a multiplicity of judicial proceedings. The standard case is a repeated or continuing trespass, which would otherwise generate a suit each time.

Notice where the adequacy of damages survives. It was removed from section 10 in 2018 as a condition of specific performance. It remains, in clauses (b) and (c) of section 38(3), as a ground for an injunction in a property case, and in section 41(h). So a student must not carry the 2018 change across into Part III: preventive relief still asks whether damages will do.

Section 39: mandatory injunctions

"When, 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."

What makes an injunction mandatory

A prohibitory injunction tells the defendant to stop. A mandatory injunction tells him to act, typically to undo what he has already done: to pull down a wall, to restore a diverted watercourse, to reinstate a demolished structure.

The Act does not use the word "prohibitory". Section 39 identifies the mandatory form by its function: it is granted where to prevent the breach of an obligation it is necessary to compel the performance of certain acts.

The two conditions

1. Necessary to compel the performance of certain acts in order to prevent the breach of an obligation. Restraint alone must be insufficient.
2. Acts which the court is CAPABLE OF ENFORCING. This is the limit, and it echoes section 14(b) on contracts involving a continuous duty the court cannot supervise. A court will not make an order it cannot police, and it will not order acts of indefinite duration or requiring continuous judgment.

"May in its discretion" repeats section 36. Mandatory injunctions are granted sparingly, and the considerations the courts weigh are the plaintiff's conduct and delay, whether the defendant acted in haste to steal a march, the cost of undoing against the injury suffered, and whether damages would be adequate.

The order may be both

The section allows the court to grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts, so a single order may be prohibitory and mandatory at once: stop building, and remove what you have built.

The forms of injunction

A worked example

Omkar has an easement of way over Priya's land. She builds a boundary wall across it.

• She has begun the wall but not finished it. A prohibitory perpetual injunction under section 38 restraining her from completing it. The obligation, the easement, exists in his favour; and this is an invasion of his right to the enjoyment of property.
• Which of the four cases in section 38(3)? Clause (b), there being no standard for ascertaining the damage caused by losing a right of way, and clause (c), money not affording adequate relief for the loss of access. Clause (d) may also apply if the obstruction is repeated.
• The wall is already built. Prohibition achieves nothing. He needs a mandatory injunction under section 39 compelling her to remove it, and the court may grant an order that both restrains further building and compels removal.
• Is demolition an act the court is capable of enforcing? Yes: it is a single, definite act with a measurable result, unlike an obligation to maintain something indefinitely.
• Priya says removal will cost twenty lakh while Omkar's loss is small. Section 39 is discretionary, and the court weighs the cost of undoing against the injury. It may refuse the mandatory order and award damages under section 40 instead.
• Priya built the wall in three days after receiving Omkar's lawyer's notice. That she acted in haste to steal a march tells strongly in favour of the mandatory order, whatever it costs her.
• Omkar watched the wall go up over six months and said nothing. Section 41(g) bars an injunction to prevent a continuing breach in which the plaintiff has acquiesced, and his delay also weighs against discretion under sections 36 and 39.

Now take a contract case. Rahul agrees to supply his entire output of a special resin to Sana and begins supplying a competitor.

• Section 38(1) is engaged: an obligation exists in Sana's favour.
• Section 38(2) requires the court to be guided by Chapter II, so the specific performance rules apply, including the bars in sections 14 and 16.
• Section 41(e) would bar an injunction if the contract could not be specifically enforced, but section 42 allows an injunction on the negative agreement notwithstanding that the affirmative part cannot be specifically enforced. See [Injunction to Perform a Negative Agreement].

What it does NOT mean

"An injunction lies for any grievance." It lies to prevent the breach of an obligation existing in the plaintiff's favour, and "obligation" means a duty enforceable by law.

"Adequacy of damages no longer matters since 2018." It no longer matters for specific performance under section 10. It still matters for injunctions, in section 38(3)(b) and (c) and in section 41(h).

"A mandatory injunction is a different kind of injunction from a perpetual one." It is a form of order. It may be temporary or perpetual.

"A court will order anything to be undone." Only acts which the court is capable of enforcing, and the remedy is discretionary, with cost, conduct and delay all weighed.

"An injunction to enforce a contract is unaffected by Chapter II." Section 38(2) requires the court to be guided by Chapter II where the obligation arises from contract.

Quick revision

• s.38(1): a perpetual injunction may be granted to prevent the breach of an obligation existing in the plaintiff's favour, expressly or by implication. "Obligation" = every duty enforceable by law, s.2(a).
• s.38(2): where the obligation arises from contract, the court shall be guided by Chapter II. Link to ss.41(e) and 42.
• s.38(3), the four property cases: (a) the defendant is TRUSTEE of the property for the plaintiff; (b) NO STANDARD for ascertaining the actual damage; (c) compensation in money would NOT afford adequate relief; (d) necessary to prevent a MULTIPLICITY of judicial proceedings.
• Adequacy of damages survives here even though it was removed from s.10 in 2018.
• s.39, 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 and also to compel performance.
• The order may be both prohibitory and mandatory. Discretion weighs conduct, delay, haste by the defendant, cost against injury, and adequacy of damages.
• Mandatory is a FORM, not a kind; it may be temporary or perpetual.

Test yourself

1. When may a perpetual injunction be granted under section 38? To prevent the breach of an obligation existing in the plaintiff's favour, whether expressly or by implication, subject to the other provisions of the Chapter. Where the obligation arises from contract the court is to be guided by Chapter II; and where the defendant invades or threatens to invade the plaintiff's right to or enjoyment of property, an injunction may be granted where the defendant is trustee of the property for the plaintiff, where there is no standard for ascertaining the actual damage, where money would not afford adequate relief, or where an injunction is necessary to prevent a multiplicity of judicial proceedings.

2. What is a mandatory injunction, and what are its conditions? It is an order compelling the performance of acts, usually to undo a wrong already done, rather than merely restraining. Under section 39 the court may grant it in its discretion where, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts, and those acts are ones which the court is capable of enforcing.

3. Why does the adequacy of damages still matter for injunctions? Because the 2018 amendment altered section 10, which governs specific performance, and did not touch Part III. Section 38(3)(b) and (c) make the absence of a standard for measuring damage, and the inadequacy of money compensation, grounds for a perpetual injunction in a property case, and section 41(h) bars an injunction where equally efficacious relief can certainly be obtained by another usual mode of proceeding.

4. What limits the court's power to grant a mandatory injunction? The acts to be compelled must be ones the court is capable of enforcing, which echoes section 14(b) on continuous duties the court cannot supervise, so an order requiring indefinite performance or continuous judgment will not be made. The remedy is also discretionary, and the court weighs the plaintiff's conduct and delay, whether the defendant acted in haste, the cost of undoing against the injury suffered, and whether damages would be adequate.

5. How does section 38(2) connect Part III with Chapter II? It provides that where the obligation sought to be enforced by injunction arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. So the specific performance conditions and bars apply, section 41(e) forbids an injunction to prevent the breach of a contract that would not be specifically enforced, and section 42 provides the exception for negative agreements.