Injunction as a Remedy Against the Administration
Chapter Ninety-Eight
Syllabus topic 6, "Remedies"
Pages 293 to 295 of 430
In one line
An injunction is a court order telling somebody to stop doing something or to undo it, and against the administration it is a private law remedy with public law limits.
In the wording a student can write in an exam: an injunction is an order of a civil court restraining a person from doing an act or requiring him to do one; under the Specific Relief Act 1963 it is either temporary, granted during the pendency of a suit under section 37 read with the Code of Civil Procedure, or perpetual, granted by the decree under sections 38 and 39; and section 41 lists the situations in which it cannot be granted at all.
MU's question
The University sets injunction and declaration together as a short note on three papers, in the words "Injunction and declaration as judicial remedies" and "Remedies of Injunction and declaration". So this chapter and [Declaration as a Remedy Against the Administration] are a pair, and the third of the group is [Section 41 of the Specific Relief Act: The Injunctions a Court Cannot Grant].
The statutory scheme
Section 36. Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
Section 37(1). Temporary injunctions are such as are to continue until a specified time or until further order of the court, may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure.
Section 37(2). A perpetual injunction can be granted only by the decree made at the hearing and upon the merits of the suit, and the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.
Section 38. A perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the plaintiff, whether expressly or by implication.
Section 39. A mandatory injunction: 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.
Section 40. Damages may be awarded in addition to or in substitution for an injunction.
The kinds, and the vocabulary
Temporary or interim. Granted pending the suit, under the Code.
Perpetual. Granted by the decree, on the merits.
Prohibitory. Forbidding an act.
Mandatory. Commanding an act, which is section 39.
Quia timet. Granted before the wrong has occurred, where it is threatened and imminent.
Injunction against the administration, and its limits
An injunction is a private law remedy, so three limits follow.
Injunction as a Remedy Against the Administration
It requires a suit. With pleadings, evidence, court fees, and notice to the Government under section 80 of the Code of Civil Procedure where the suit is against the Government or a public officer in his official capacity.
It is refused where section 41 says so, and clause (h) is the important one for this subject: an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust. A writ under Article 226 is usually such a mode.
It operates against a party, whereas a writ operates against an authority in respect of a public duty.
Injunction and prohibition compared
This is the distinction MU's pairing invites, and it is worth stating carefully.
| Injunction | Writ of prohibition | |
|---|---|---|
| Court | Civil court, in a suit | High Court or Supreme Court, in a petition |
| Nature | Private law, in personam | Public law |
| Against | Any person, including a public authority as a party | A judicial or quasi-judicial body exceeding jurisdiction |
| Ground | Breach of an obligation owed to the plaintiff | Want or excess of jurisdiction |
| Procedure | Pleadings and evidence | Affidavits |
| Speed | Slow | Fast |
A worked example
A municipal corporation begins to lay a drain across a citizen's private land without acquiring it, and separately issues him a notice to show cause why his shop licence should not be cancelled.
The trespass on his land is a private wrong: he sues for a perpetual injunction under section 38 and, if the drain is already laid, for a mandatory injunction under section 39 to remove it, with a temporary injunction under section 37 to stop the work meanwhile. The licence notice is a public law matter: an injunction would be refused under section 41(h), because a petition under Article 226 is an equally efficacious usual mode, and in any event the notice is only a show cause notice, so the proper course is to reply to it.
What this does NOT mean
It does not mean an injunction never runs against the State. It does, in an ordinary civil dispute, subject to section 80 of the Code and to section 41.
It does not mean a temporary injunction is a lesser remedy. In practice it is often the only remedy that matters.
It does not mean an injunction can stop a legislature. No court will restrain the introduction or passing of a Bill.
Quick revision
Sections 36 to 40 of the Specific Relief Act 1963: preventive relief by injunction, temporary or perpetual; temporary injunctions are regulated by the Code and perpetual ones are granted by the decree on the merits; section 38 for perpetual injunctions to prevent the breach of an obligation, section 39 for mandatory injunctions, section 40 for damages in addition or in substitution. Kinds: temporary, perpetual, prohibitory, mandatory and quia timet. Against the administration it needs a suit and notice under section 80 of the Code, and section 41(h) usually sends a public law complaint to the writ court.
Injunction as a Remedy Against the Administration
Test yourself
1. Which section allows a mandatory injunction and what does it require? Section 39, 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.
2. Why is an injunction usually refused in a public law matter? Because section 41(h) forbids an injunction where equally efficacious relief can certainly be obtained by another usual mode of proceeding, and a petition under Article 226 is such a mode.
3. Give two differences between an injunction and the writ of prohibition. An injunction is a private law remedy granted by a civil court in a suit against a party; prohibition is a public law remedy granted by a High Court against a body exceeding its jurisdiction, on affidavits and without a trial.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.