Preventive Relief, and the Kinds of Injunction

That is a clean comparison to draw in an answer, and it explains why the equitable considerations that no longer govern specific performance, delay, conduct, hardship, the adequacy of damages, still govern injunctions. Several of them appear expressly in section 41. See [When an Injunction Cannot Be Granted].

Two kinds only. The section names temporary and perpetual. The mandatory injunction of section 39 is not a third kind in this classification: it is a form the order takes, and it may be temporary or perpetual.

Section 37: the two kinds

Temporary injunctions

They continue until a specific time, or until the further order of the court. So they are by nature provisional.

They may be granted at any stage of a suit, including at the very outset before the defendant has been heard.

They are regulated by the Code of Civil Procedure 1908, not by this Act. The relevant provisions are Order XXXIX, Rules 1 and 2, with Rule 2A for disobedience, and section 94(c). That is a division of labour worth stating: the Specific Relief Act governs perpetual injunctions in Chapter VIII, and the Code governs temporary ones.

The purpose is to hold the position until the rights can be decided, so that the trial is not made pointless by what happens in the meantime.

The three settled requirements a plaintiff must satisfy under the Code, which an answer should name:

1. a prima facie case;
2. the balance of convenience in his favour; and
3. irreparable injury if the injunction is refused, meaning injury that cannot be adequately compensated in money.

Perpetual injunctions

Only by the decree made at the hearing and upon the merits. So there is no perpetual injunction at an interim stage, and none without a trial of the merits.

The defendant is perpetually enjoined from asserting a right, or committing an act, which would be contrary to the plaintiff's rights.

They are governed by Chapter VIII of this Act, sections 38 to 42.

"Perpetual" describes the ORDER, not necessarily an eternity. It means the injunction is final rather than provisional; its content may still be limited to the duration of the obligation it protects, as with a negative covenant that runs for a fixed period.

The two kinds compared

A worked example

Meera owns a house with an ancient right of light over Nadeem's adjoining plot. Nadeem begins building in a way that will block it.

• What does she need at once? A temporary injunction restraining further construction. Section 37(1) allows it at any stage of the suit, and it is regulated by Order XXXIX of the Code.
• What must she show for it? A prima facie case on the easement, that the balance of convenience favours a halt rather than allowing a building to rise, and that she will suffer irreparable injury, light lost being hard to compensate in money.
• What does that order do? It holds the position until the rights are decided. It does not decide them.
• At the trial she proves the easement. The court may grant a perpetual injunction under section 37(2), by the decree at the hearing and upon the merits, perpetually restraining Nadeem from building so as to obstruct the light.
• The wall is already up when she comes to court. Prohibiting further building is useless. She needs a mandatory injunction under section 39 compelling its removal, and that may be granted at the hearing. See [Perpetual and Mandatory Injunctions].
• She delayed three years while the building went up, and objects only now. Section 36 makes the relief discretionary, and section 41(g) bars an injunction to prevent a continuing breach in which the plaintiff has acquiesced. Her delay may cost her the remedy, and she may be left to damages under section 40.

What it does NOT mean

"An injunction follows once a right is proved." Section 36 makes preventive relief discretionary, and the 2018 amendment did not change that as it changed section 10.

"There are three kinds of injunction." Section 36 names two, temporary and perpetual. A mandatory injunction is a form the order takes and may be either.

"Temporary injunctions are governed by the Specific Relief Act." They are regulated by the Code of Civil Procedure 1908. This Act governs perpetual injunctions.

"A perpetual injunction can be granted at an interim stage." It can be granted only by the decree made at the hearing and upon the merits.

"Perpetual means for ever in every case." It means final rather than provisional; the content may still be limited by the obligation it protects.

Quick revision

• s.36: preventive relief is granted at the DISCRETION of the court by injunction, temporary or perpetual. Contrast s.10, where the discretion was removed in 2018; s.36 was not amended.
• s.37(1): temporary injunctions 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 (Order XXXIX, Rules 1 and 2; Rule 2A for disobedience; s.94(c)).
• The three requirements under the Code: prima facie case, balance of convenience, irreparable injury.
• s.37(2): perpetual injunctions can be granted only by the decree made at the hearing and upon the merits, perpetually enjoining the defendant from asserting a right or committing an act contrary to the plaintiff's rights. Governed by Chapter VIII, ss.38 to 42.
• Mandatory injunctions (s.39) are a FORM, not a third kind, and may be temporary or perpetual.
• Preventive relief matters where harm is continuing, irreparable or unquantifiable, or to prevent a multiplicity of proceedings.

Test yourself

1. State sections 36 and 37. Section 36 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, the defendant being thereby perpetually enjoined from asserting a right or committing an act contrary to the rights of the plaintiff.

2. Is an injunction granted as of right? No. Section 36 makes preventive relief discretionary, and the Specific Relief (Amendment) Act 2018, which removed the discretion from specific performance in section 10, made no corresponding change here. So considerations of delay, conduct, hardship and the adequacy of damages continue to matter, and several appear expressly in section 41.

3. Which law governs temporary injunctions? The Code of Civil Procedure 1908, as section 37(1) says expressly, principally Order XXXIX Rules 1 and 2, with Rule 2A for disobedience and section 94(c). The Specific Relief Act governs perpetual injunctions in Chapter VIII, sections 38 to 42.

4. What must a plaintiff show for a temporary injunction? A prima facie case, that the balance of convenience lies in his favour, and that he will suffer irreparable injury if the injunction is refused, meaning injury that cannot be adequately compensated in money. These requirements come from the practice under the Code rather than from the Specific Relief Act.

5. Is a mandatory injunction a third kind of injunction? No. Section 36 recognises two kinds, temporary and perpetual. A mandatory injunction under section 39 is a form the order takes, compelling the performance of acts rather than merely restraining, and it may be granted either temporarily or perpetually.