38. Perpetual injunction when granted
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favor, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely,-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings
Significantly, under Section 38 of this Act Perpetual or Permanent injunction can be granted in two cases:
1. Perpetual or Permanent injunction to prevent the breach of an obligation existing in favour of plaintiff [Section 38(1) and (2)]
2. Perpetual or Permanent injunction when defendant invades or threatens to invade the plaintiff’s right. [Section 38(3)]
Perpetual or Permanent injunction to prevent the breach of an obligation existing in favour of plaintiff [Section 38(1) and (2)]
It is important to mention that for Perpetual or Permanent injunction to prevent the breach of an obligation existing in favour of plaintiff following conditions must be fulfilled.
a) Defendant must have an obligation towards the plaintiff;
b) Such obligation may be expressed or implied; and
c) The defendant is about to make breach of that obligation.
If all these conditions are fulfilled then the court may grant permanent injunction in favour of plaintiff to prevent the breach of an obligation existing in his favour.
Obligation towards the plaintiff
According to Section 2(a) of this Act, obligation includes every duty enforceable by law. Significantly, such obligation may arise under:
i. Contract;
ii. Tort;
iii. Trust; or
iv. Any other law
Obligation arising under Contract [Section 38(2)]
Example: A contracts to sing at B\’s theatre for one year and not to sing elsewhere. \”to sing at B\’s Theatre for one year is contract which depends upon the personal qualifications or violation of the parties and hence cannot be specifically enforced. But the negative part of this contract that A will not sing elsewhere can be specifically enforced. Hence, A can be compelled by injunction not to sing elsewhere.\”
Example: A lets certain lands to B and B contracts not to dig sand or gravel there out. A may sue for an injunction to restrain B from digging in volition of his contract.
Obligation arising under tort
It is important to mention that tort is a civil wrong and where obligation is arising under law of tort the court, may grant injunction to prevent him (defendant) from committing or threatening to commit that wrong.
Example:-A, the owner of two adjoining house, etc. one to B and afterwards lets the other to C. A and C begin to make such alterations in the house let to C a will prevent the comfortable enjoyment of the house let to B. B may sue for an injunction to restrain them from so doing.
Obligations arising under trust
It is important to mention that under trust, the trustee has certain obligations towards the beneficiary. Therefore, where obligations is arising under trust and trustee makes breach or threatens to commit some wrong then the court, may grant injunction to prevent him (defendant) from committing or threatening to commit that wrong.
Example 1: The directors of a public company are about to pay a dividend out of capital or borrowed money. Any of the shareholders may sue for an injunction to prevent the breach.
Example 2: The Directors of a fire and life insurance company are about to engage in marine insurances. Any of the shareholders may sue for an injunction to restrain them.
Obligations arising under any other law
Under family law, Karta and other members of the family have certain obligations towards each other. Therefore, where obligation is arising under Family Law and any member or Karta makes breach or threatens to commit some wrong then the Court may grant injunction to prevent him (defendant) from committing or threatening to commit that wrong.
Example: – A, a Hindu widow in possession of her deceased husband\’s property, commits destruction of the property without any cause sufficient to justify her in so doing. The heir-expectant may sue for an injunction to restrain her.
Obligations arising under Partnership Act
Under Partnership Act, each partner has certain obligations towards partner or Karta makes breach or threatens to commit some wrong then the Court, may grant injunction to prevent him (defendant) from committing or threatening to commit that wrong.
Obligation under IPRs Law
Example 1: A pirates B\’s copyright. B may obtain an injunction to restrain the piracy, unless the work of which copyright is claimed is libelous or obscene.
Example 2: A infringes B\’s patent. If the Court is satisfied that the patent is valid and has been infringed, B may obtain an injunction to restrain the infringement.
Perpetual or Permanent injunction when defendant invades or threatens to invade the plaintiffs right [Section 38(3)]:
In such case the court may grant a perpetual injunction in the following cases:
a)where the defendant is trustee of the property for the plaintiff;
b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
c) where the invasion is such that compensation in money would not afford adequate relief;
d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
a) where the defendant is trustee of the property for the plaintiff:
Example: A, being B\’s advocate, threatens to publish B\’s written communications with him showing that B has committed the offence. B may obtain an injunction to restrain the publication.
b) where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion;
Significantly, where the defendant invades or threatens to invade the plaintiff\’s right to, or enjoyment of, property and there exists no standard for ascertaining the actual damage cause or likely to be cause, by the invasion then the court may grant permanent injunction under Section 38(3) of this Act.
Example: – A, pollutes the air with smoke so as to interfere materially with the physical comfort of B and C, who carry on business in a neighboring house. B and C may sue for an injunction to restrain the pollution on the ground that there exists no standard for ascertaining the actual damage cause, or likely to be cause, by the invasion.
c) where the invasion is such that compensation in money would not afford adequate relief;
Where the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of, property and the invasion is such that compensation in money would not afford adequate relief then the court may grant permanent injunction under Section 38(3) of this Act.
Example: A, a professor of Department of Laws, delivers lectures in the class which are noted by B, a student. Subsequently, B publishes those notes in his name. A can file a suit for an injunction to restrain B from publishing those notes in his name as these are property of A.
d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
Where the defendant invades or threatens to invade the plaintiff\’s right to, or enjoyment of, property and he invasion is such that it is affecting the rights of number of persons then the Court may grant permanent injunction under Section 38(3) of this Act to avoid the multiplicity of judicial proceedings.
Example: A pollutes the air with smoke so as to interfere materially with the physical comfort of entire locality. Any member of the locality may sue for an injunction of restrain the pollution. The court may grant permanent injunction under Section 38(3) of this Act to avoid the multiplicity of judicial proceedings.
• Perpetual Injunction is an equitable relief and can be granted in appropriate cases
For Permanent injunction the plaintiff must come with clean hands: Injunction which was an equitable relief would not be granted to a person who had not come to the Court with clean hands, and who was guilty of suppression of facts.
Difference between Temporary and Perpetual Injunction
It is discretion of the Court to grant injunction. However, important differences between Temporary and Perpetual injunction are:
1) Stage at which it is granted – Temporary injunction : It is granted at any stage of a suit; Perpetual injunction : It is granted by the decree made at the hearing;
2) Time period when it continues – Temporary injunction : It continue until a specified time, or until the further order of the court; Perpetual injunction : It continues permanently.
3) By which law it is regulated – Temporary injunction : It is regulated by the Code of Civil Procedure, 1908 i.e., Order XXXIX Rule 1 and 2; Perpetual injunction : It is regulated by the Section 38 of the Specific Relief Act 1963.,
4) What is to be proved – Temporary injunction : Plaintiff must establish prime facie case and must establish that there is a substantial question of law which must be investigated; Perpetual injunction : The plaintiff must prove that there is a legal right either expressed or implied in his favour.
5) Condition for granting temporary injunction – Temporary injunction : Generally temporary injunction is granted when suit for permanent injunction is already pending in the Court; Perpetual injunction : No such condition.