Injunction and Specific Restitution of Property

Section 42 allows an injunction to enforce a negative agreement in certain cases.

Specific restitution of property

Section 5 provides that a person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure 1908, that is, by an ordinary suit on title.

Section 6 is the summary suit for a person dispossessed without his consent otherwise than in due course of law: he may recover possession notwithstanding any other title set up in the suit, must sue within six months of the dispossession, may not sue the Government, and there is no appeal or review from the decree, though he or the defeated party may afterwards sue on title. Chapter [Remedies for Trespass to Land] works out the difference between sections 5 and 6.

Section 7 allows a person entitled to the possession of specific movable property to recover it in the manner provided by the Code, and its Explanations allow a trustee to sue and treat a special or temporary right to present possession as sufficient.

Section 8 allows a person having possession or control of an article of movable property of which he is not the owner to be compelled to deliver it specifically to the person entitled to its immediate possession, in four cases: where he holds it as the plaintiff's agent or trustee; where compensation in money would not afford adequate relief; where it would be extremely difficult to ascertain the actual damage; and where possession has been wrongfully transferred from the plaintiff. Its Explanation presumes the second and third in the plaintiff's favour until the contrary is proved.

A worked example

A factory next to Ismail's house begins running a generator at night, and its contractor has also built a shed one metre inside Ismail's boundary and taken away his water pump.

A temporary injunction under sections 36 and 37, on an application in the suit, to stop the night running while the case is heard.

A perpetual injunction under section 38 at the trial: the invasion is of his right to the enjoyment of property, there is no standard for ascertaining the damage caused by lost sleep, and money would not be adequate relief, so two of the four situations in section 38 are satisfied.

A mandatory injunction under section 39 to pull down the shed, since preventing the breach requires the defendant to be compelled to do an act.

Damages under section 40, in addition to the injunction, provided he claims them in the plaint.

The pump is specific movable property. He may sue under section 7 to recover it, and rely on section 8 to compel its specific delivery if money would not be adequate relief or the damage would be difficult to ascertain, the Explanation presuming both in his favour.

And if the factory had dispossessed him of part of his land, section 6 gives a summary suit within six months in which the factory's title is irrelevant.

What it does NOT mean

An injunction is not available as of right. Section 36 makes preventive relief discretionary.

It is not available in every case. Section 41 lists the cases in which it cannot be granted at all.

Damages and an injunction are not alternatives the plaintiff may pick at the end. Section 40 requires damages to be claimed in the plaint, though an amendment may be allowed.

Specific restitution is not automatic for movables. Section 8 sets out the four cases in which delivery of the thing itself may be compelled.

Quick revision

1. Section 36: preventive relief by injunction, temporary or perpetual, at the court's discretion.
2. Section 37: a temporary injunction lasts till a time or further order and is regulated by the Code of Civil Procedure 1908; a perpetual injunction is granted by the decree at the hearing on the merits.
3. Section 38: four situations for a perpetual injunction, including no standard for ascertaining damage, money not adequate relief, and prevention of a multiplicity of proceedings.
4. Section 39: mandatory injunction, to compel acts necessary to prevent the breach.
5. Section 40: damages in addition to or in substitution for an injunction, claimed in the plaint.
6. Section 41: the cases in which an injunction cannot be granted, including acquiescence, criminal proceedings and equally efficacious relief elsewhere.
7. Sections 5 and 6: recovery of immovable property on title, and the summary suit within six months.
8. Sections 7 and 8: recovery of movable property, and the four cases in which specific delivery may be compelled, with a presumption in the plaintiff's favour.

Test yourself

1. When will a court grant an injunction instead of damages? Section 38 of the Specific Relief Act 1963 names the situations. Where the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, a perpetual injunction may be granted 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. The remedy is discretionary under section 36, and section 41 lists cases in which it cannot be granted at all, including where the plaintiff has acquiesced in a continuing breach, where equally efficacious relief can certainly be obtained by another usual mode of proceeding, and where his own conduct disentitles him to the court's assistance. Section 40 allows damages to be awarded in addition to or in substitution for an injunction, if claimed in the plaint.

2. Distinguish a temporary from a perpetual and a mandatory injunction. Section 37 draws the first distinction: a temporary injunction continues until a specified time or until further order of the court, may be granted at any stage of a suit, 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, and it perpetually enjoins the defendant from asserting a right or committing an act contrary to the plaintiff's rights. A mandatory injunction, under section 39, is different in kind rather than in duration: instead of restraining the defendant it compels him to perform acts necessary to prevent the breach, for example to demolish a structure he has built, and it is granted where the court is capable of enforcing the performance of those acts.

3. How does a plaintiff recover the thing itself rather than its value? For immovable property, by a suit under section 5 of the Specific Relief Act 1963, brought on title in the manner provided by the Code of Civil Procedure 1908, or, if he was dispossessed without his consent otherwise than in due course of law, by the summary suit under section 6, which must be brought within six months, cannot be brought against the Government, and is decided without regard to title, no appeal or review lying from the decree. For movable property, by a suit under section 7, a trustee being competent to sue and a special or temporary right to present possession being sufficient; and where the defendant has possession or control of an article of which he is not the owner, section 8 allows the court to compel specific delivery in four cases: where he holds it as the plaintiff's agent or trustee, where compensation in money would not be adequate relief, where the actual damage would be extremely difficult to ascertain, and where possession has been wrongfully transferred from the plaintiff, with a presumption in the plaintiff's favour on the second and third.