When an Injunction Cannot Be Granted

(c) Applying to any legislative body. The right to petition the legislature is not to be restrained.

(d) A proceeding in a criminal matter. The criminal process is public and is not to be stopped by a civil injunction.

What unites the group: the courts will not use the injunction to shut off access to another forum.

Group two: the nature of the right, clauses (e) and (f)

(e) To prevent the breach of a contract the performance of which would not be specifically enforced. This ties Part III to Chapter II, and it is the clause section 42 makes an exception to. If the contract cannot be specifically enforced, an injunction to prevent its breach is ordinarily barred; but where there is a negative agreement, section 42 lets the court enjoin the negative half notwithstanding.

(f) Nuisance not reasonably clear. No quia timet injunction on the ground of nuisance where it is not reasonably clear that the act will be a nuisance. The court will not restrain a merely apprehended nuisance on speculation.

Group three: the plaintiff's own position, clauses (g), (i) and (j)

(g) A continuing breach in which the plaintiff has ACQUIESCED. Acquiescence means standing by while the breach continues, so that it is unjust to intervene now. The equitable maxim behind it is that delay defeats equity.

(i) The conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court. This is clean hands in statutory form, and note that the conduct of his agents counts.

(j) The plaintiff has NO PERSONAL INTEREST in the matter. A stranger cannot obtain an injunction, which reflects section 4, that specific relief enforces individual civil rights.

Group four: the alternative remedy and infrastructure, clauses (h) and (ha)

(h) Equally efficacious relief can CERTAINLY be obtained by any other usual mode of proceeding, EXCEPT in case of breach of trust.

Three things in that clause. The alternative relief must be equally efficacious; it must be obtainable certainly, not merely arguably; and there is an express exception for breach of trust, where an injunction remains available however good the alternative.

This is where the adequacy of damages survives in the modern Act, having been removed from section 10 in 2018.

(ha) Infrastructure projects. Inserted in 2018. No injunction if it would impede or delay the progress or completion of any infrastructure project, or interfere with the continued provision of relevant facility related thereto or services being the subject matter of the project.

It is the general law counterpart of section 20A, and the Explanation to section 20A supplies the definition: "infrastructure project" means the category of projects and infrastructure sub sectors specified in the Schedule, and that definition governs clause (ha) expressly. See [Infrastructure Projects, Special Courts and Expeditious Disposal].

A worked example

Test seven applications against section 41.

• Vikram asks for an injunction restraining Wasim from continuing a suit already pending against him in the same court. Clause (a) bars it, unless the restraint is necessary to prevent a multiplicity of proceedings.
• He asks for an injunction restraining Wasim from proceeding in the High Court. Clause (b) bars it: the High Court is not subordinate to the court asked. Had the proceeding been in a subordinate court, the clause would not apply.
• He asks for an injunction restraining Wasim from pursuing a criminal complaint. Clause (d) bars it absolutely.
• He asks for an injunction restraining Wasim from breaking a contract to sing at his hall, that contract being one of personal service and so not specifically enforceable. Clause (e) bars an injunction to prevent the breach; but if the contract contains a negative agreement, for instance not to sing elsewhere, section 42 allows the court to enjoin that.
• He asks for an injunction to stop a factory that may, when built, emit fumes. Clause (f) bars it unless it is reasonably clear the act will be a nuisance.
• He has watched Wasim's drain discharge onto his land for four years and now objects. Clause (g) bars an injunction to prevent a continuing breach in which he has acquiesced, and his conduct also weighs under clause (i) and under the discretion in section 36. His remedy may be damages under section 40.
• A neighbour with no interest in the land asks for an injunction to protect Vikram's rights. Clause (j) bars it: no personal interest.
• A contractor asks for an injunction stopping work on a State highway pending a payment dispute. Clause (ha) bars it, the injunction being one that would impede or delay the progress of an infrastructure project, and section 20A bars it in a suit under this Act as well.

What it does NOT mean

"Section 41 lists matters in the court's discretion." It lists cases in which an injunction cannot be granted. Discretion is section 36's subject.

"No court can restrain another proceeding." Clause (b) bars restraining a proceeding in a court not subordinate; a proceeding in a subordinate court may be restrained, and clause (a) has its own exception for preventing a multiplicity of proceedings.

"An alternative remedy always bars an injunction." Clause (h) requires the other relief to be equally efficacious and obtainable certainly, and it excepts breach of trust.

"A contract that cannot be specifically enforced can never be protected by injunction." Clause (e) says so as a rule, and section 42 is the express exception for a negative agreement.

"Delay is merely a discretionary factor." Under clause (g) acquiescence in a continuing breach is a statutory bar.

"Any injunction touching an infrastructure project is barred." Clause (ha) bars one that would impede or delay the progress or completion of the project, or interfere with the continued provision of the related facility or services.

Quick revision

The twelve, in four groups.

• Other proceedings: (a) a pending judicial proceeding, unless necessary to prevent a multiplicity of proceedings; (b) a proceeding in a court not subordinate; (c) applying to a legislative body; (d) a proceeding in a criminal matter.
• Nature of the right: (e) to prevent the breach of a contract not specifically enforceable (exception in s.42 for a negative agreement); (f) a nuisance not reasonably clear.
• The plaintiff himself: (g) acquiescence in a continuing breach; (i) the conduct of the plaintiff or his agents disentitling him to the court's assistance, that is clean hands; (j) no personal interest in the matter.
• Alternatives and infrastructure: (h) equally efficacious relief certainly obtainable by another usual mode, except breach of trust; (ha) it would impede or delay an infrastructure project or interfere with the related facility or services, inserted in 2018, with the definition in the Explanation to s.20A and the Schedule.
• s.41 is a bar, not a discretion. s.36 supplies the discretion.
• Adequacy of the alternative remedy survives in clause (h) although it was removed from s.10 in 2018.

Test yourself

1. List the cases in which an injunction cannot be granted. To restrain a person from prosecuting a judicial proceeding pending at the institution of the suit, unless necessary to prevent a multiplicity of proceedings; from instituting or prosecuting a proceeding in a court not subordinate to that asked; from applying to a legislative body; from instituting or prosecuting a proceeding in a criminal matter; to prevent the breach of a contract that would not be specifically enforced; to prevent, on the ground of nuisance, an act not reasonably clear to be a nuisance; to prevent a continuing breach in which the plaintiff has acquiesced; where equally efficacious relief can certainly be obtained by another usual mode of proceeding, except in case of breach of trust; where it would impede or delay an infrastructure project or interfere with the related facility or services; where the conduct of the plaintiff or his agents disentitles him to the court's assistance; and where the plaintiff has no personal interest in the matter.

2. What is clause (ha), and when was it inserted? It provides that an injunction cannot be granted if it would impede or delay the progress or completion of any infrastructure project, or interfere with the continued provision of the relevant facility related to it or the services being the subject matter of the project. It was inserted by the Specific Relief (Amendment) Act 2018 with effect from 1 October 2018, and the Explanation to section 20A defines "infrastructure project" for it by reference to the Schedule.

3. Can a court ever restrain another proceeding? Yes, within limits. Clause (a) bars restraining a judicial proceeding pending at the institution of the suit unless the restraint is necessary to prevent a multiplicity of proceedings, and clause (b) bars restraining a proceeding in a court not subordinate to the one asked. So a proceeding in a subordinate court may be restrained, and the multiplicity exception may apply.

4. How does clause (e) relate to section 42? Clause (e) bars an injunction to prevent the breach of a contract the performance of which would not be specifically enforced. Section 42 opens with the words "Notwithstanding anything contained in clause (e) of section 41" and provides that where a contract comprises an affirmative agreement coupled with a negative agreement, the court's inability to compel specific performance of the affirmative part does not preclude it from granting an injunction to perform the negative one.

5. Why does clause (h) matter after the 2018 amendment? Because it preserves, for injunctions, the enquiry into alternative relief that was removed from specific performance. Section 10 no longer asks whether damages are adequate, but clause (h) still bars an injunction where equally efficacious relief can certainly be obtained by any other usual mode of proceeding, with an express exception for breach of trust.