Section 41 of the Specific Relief Act: The Injunctions a Court Cannot Grant
Chapter
Syllabus topic 6, "Remedies"
Pages 299 to 301 of 430
In one line
Section 41 lists ten situations in which a court cannot grant an injunction, and the textbook line about public duties is not one of them.
In the wording a student can write in an exam: section 41 of the Specific Relief Act 1963 provides that an injunction cannot be granted in ten enumerated situations, of which the most important for administrative law are clause (h), where equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust, clause (i), where the conduct of the plaintiff or his agents disentitles him to the assistance of the court, and clause (j), where the plaintiff has no personal interest in the matter.
What the section actually says
An injunction cannot be granted:
(a) to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has acquiesced;
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;
(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of a relevant facility related to it or services being the subject matter of such project;
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.
A correction a student should carry away
Textbooks and older answers say that a civil court cannot grant an injunction interfering with the public duties of a department of Government. That was section 56(d) of the Specific Relief Act 1877. It is not in the Act of 1963. The list above is the whole of section 41, and it contains no such clause.
What keeps a civil court out of public law today is different and less absolute:
Clause (h). Where a petition under Article 226 is an equally efficacious usual mode, an injunction will be refused.
Section 41 of the Specific Relief Act: The Injunctions a Court Cannot Grant
Section 9 of the Code of Civil Procedure. Courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred, so a statute which creates a special forum can bar the suit.
Section 80 of the Code. Two months' notice before suing the Government or a public officer in respect of an act purporting to be done in his official capacity, which makes a suit useless where speed matters.
Clause (j). Which is the private law counterpart of locus standi and explains why public interest litigation had to be a writ jurisdiction rather than a suit.
Clause (ha), which is recent
It was inserted by the Specific Relief (Amendment) Act 2018 and forbids an injunction which would impede or delay an infrastructure project or the services related to it, the projects being listed in a schedule which includes transport, energy, water and sanitation, communication, social and commercial infrastructure. It is a significant limitation on litigation about public works, and an examiner will not expect it, which is a reason to know it.
Section 42, the exception for a negative agreement
Section 42 provides that notwithstanding section 41(e), where a contract comprises an affirmative agreement to do a certain act coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement, provided the plaintiff has not failed to perform the contract so far as it is binding on him.
A worked example
A contractor whose contract with a municipal corporation has been terminated sues for an injunction restraining the corporation from awarding the work to anybody else, and separately for an injunction restraining a departmental enquiry into his conduct.
The first is likely to fail under clause (e), because a contract of that kind would not be specifically enforced, and damages are the remedy. The second fails under clause (h): a writ petition under Article 226 is an equally efficacious usual mode of challenging an enquiry, and it is faster. If the work were an infrastructure project within the schedule, clause (ha) would independently bar the first injunction.
What this does NOT mean
It does not mean an injunction never lies against a public body. It lies in an ordinary civil dispute, subject to the section and to section 80 of the Code.
It does not mean clause (h) is a jurisdictional bar. It is a bar on the grant of the injunction, and the suit itself may proceed for other relief.
Section 41 of the Specific Relief Act: The Injunctions a Court Cannot Grant
It does not mean the 1877 rule has no descendants. Its function is now performed by clause (h) and by section 9 of the Code.
Quick revision
Section 41 lists ten bars: pending judicial proceedings, proceedings in a court not subordinate, applications to a legislature, criminal proceedings, contracts not specifically enforceable, doubtful nuisance, acquiescence, equally efficacious relief by another usual mode, infrastructure projects under clause (ha) inserted in 2018, disentitling conduct, and want of personal interest. The old rule about the public duties of a department was section 56(d) of the Act of 1877 and is not in the Act of 1963. Section 42 preserves the injunction to perform a negative agreement.
Test yourself
1. Which clause most often keeps a public law dispute out of the civil court? Clause (h): an injunction cannot be granted where equally efficacious relief can certainly be obtained by another usual mode of proceeding, and a writ petition is such a mode.
2. What was section 56(d) of the Act of 1877, and where is it now? It barred an injunction interfering with the public duties of a department of Government. It has no counterpart in the Act of 1963; its function is now performed by clause (h) of section 41 and by section 9 of the Code of Civil Procedure.
3. What does clause (ha) do? Inserted in 2018, it forbids an injunction which would impede or delay an infrastructure project or interfere with the services related to it.
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.