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CHAPTER VII
EFFICACY OF INJUNCTION AS A TOOL FOR JUSTICE
There can be peace only if there is justice.
- Mahatma Gandhi
7.1 INTRODUCTION
The much avowed mission of law is justice. It is an established and time-honoured
fact that the very purpose of courts is delivery of justice. The expression justice is
frequently used in different contexts and is placed on a high pedestal, with its
dispensation being recognized as a divine duty and an equally enormous
responsibility. It is thus germane to identify the concept of justice and to portray
the planes on which justice operates. It then needs to be examined whether the
equitable model of administering the remedy of injunction, imbued with wide
discretion, does advance the solemn objective of justice.
In order to explore this, it is imperative to first understand the true connotation of
the expression justice. Therefore, at the outset, the ideal of justice would be
explained. The benchmark which a law must attain in order to achieve this ideal of
justice would then be elucidated. In doing so, the yardsticks of both theory and
practice of law would be studied. The law of injunction being remedial in nature,
the tenets of a fair civil trial would then be examined. The principles of fairness,
certainty and access would be analyzed in detail. Having laid the standards, the
practice and procedures of injunctions, with their attributes of equity and
discretion, would be exemplified. The law of injunction would finally be tested on
the touchstone of those benchmarks to see whether it measures up as a just law.
7.2 CONNOTATIONS OF JUSTICE
Potter Stewart declared, “Fairness is what justice really is”. “Justice” is called
mother of all virtues and queen of all values. In a Constitutional set up, it does not
tolerate individual prejudices, notions, ideas or idiosyncrasies. It does not admit
any kind of terminological inexactitude or misplaced sympathy. “Justice” may be
501
considered to be the filament of any civilized society. Daniel Webster1 said:
“Justice, sir, is the great interest of man on earth. It is the ligament which holds
civilized beings and civilized nations together. Wherever her temple stands, and so
long as it is duly honoured, there is a foundation for social security, general
happiness, and the improvement, and progress of our race. And whoever labours
on this edifice, with usefulness and distinction, whoever clears its foundations,
strengthens its pillars, adorns its entablatures, or contributes to raise its august
dome still higher in the skies, connects himself in name, and fame, and character,
with that which is and must be as durable as the frame of human society.”
It would be apt to quote the statements of Roscoe Pound, a sociological jurist
whose writings have virtually opened new vistas in the sphere of justice, and who
was quoted extensively, with approval, by the Supreme Court in the Jilubhai
Nanbhai Kachar case2. He said, “Justice meant not as an individual or ideal
relations among men but a regime in which the adjustment of human relations and
ordering of the human conduct for peaceful existence.” According to Pound,
justice refers to “the means of satisfying human claims to have things and to do
things should go around, as far as possible, with least friction and waste”. He
elaborated, “Looked at functionally, the law is an attempt to satisfy, to reconcile, to
harmonize, to adjust these overlapping and often conflicting claims and demands,
either through securing them directly and immediately, or through securing certain
individual interests or through delimitations or compromises of individual
interests, so as to give effect to the greatest total of interests or to the interests that
weigh more in our civilization with the least sacrifice of the scheme of interests as
a whole.”3 In his Theory of Justice, 1951 Edn., at p. 31, he stated, “the law means
to balance the competing interests of an individual along with the social interests of
the society.” In his work, Justice According to Law, he observed, “We come to an
idea of maximum satisfaction of human wants or expectations. What we have to do
in social control and so in law, is to reconcile and adjust these desires or wants or
expectations, so far as we can, so as to secure as much of the totality of them as we
can.” According to him, therefore, the claims or interests, namely, individual,
1 Webster, Daniel, in Life and Letters of Joseph Story (William W. Story, ed., Boston: Charles
C. Little and James Brown, 1851), Volume II, p. 624. 2 Jilubhai Nanbhai Kachar and others vs. State of Gujarat and others 1995 Supp (1) SCC 596. 3 Roscoe Pound, “A Survey of Social Interests”, 57th Harvard Law Review, 1 at p. 39, (1943).
502
physical, social or public interest should harmoniously be reconciled “to the
balancing of social interests through the instrument of social control; a task
assigned to public law for that matter”.
Justice has been, if not the only, at least one of the foremost goals of human
endeavour from the earliest times. It may have been pursued with greater scientific
vigour and intensity in some societies than the others, but societies all over the
world have strived for it in some form or the other. India, which is one of the most
ancient surviving society, has through the ages developed its own conceptions of
justice. These conceptions of justice have fortified into constitutional principles
that are the guiding light for the laws and their implementation in the legal system.
Within the broader spectrums of justice, the primary facet of justice concerns itself
with the delivery of justice in accordance with law by courts to decide the dispute
between two individuals or between an individual and an organization.4 Justice
thus has no determinate definition. Validation of justice lies in its visibility and
social perception. These factors help it thrive through turmoils created by unjust
phenomena. Hence the oft-quoted aphorism - justice must not only be done, it
should also be seen to be done.
7.3 TRAITS OF A JUST LAW
Having discussed the notion of justice, it may be examined as to which are the
attributes of a robust and just law, and which traits a law must possess to be fair.
Law in general is perceived as a rule of being or of conduct, established by an
authority able to enforce its will; a controlling regulation; the mode or order
according to which an agent or a power acts. In the moral sense, law has been held
to mean the will of God as the rule for the disposition and conduct of all
responsible beings towards him and towards each other; a rule of living,
conformable to righteousness; the rule of action as obligatory on the conscience or
moral nature. Cicero believed law to be “logic in motion”, while Austin called it
“the command of the sovereign”. However, these definitions only give us an
insight into what law means on the face of it. In truth and in practice law has many
4 Speech by Hon'ble Mr. Justice Dipak Misra, Judge, Supreme Court of India on Relationship
Between Constitutional Concepts and Criminal Jurisprudential Perspective at Tamil Nadu Judicial Academy on 14.06.2014.
503
facets. These facets decide whether a law shall be good or oppressive.
The opinion that has garnered tremendous support regarding how a good law
should be is that, it should be "just, fair and reasonable". It should promote
individual liberty and free will but at the same time put these principles within the
ambit of common good and welfare for all. Any law should not be so stringent so
as to cage individualism nor should it be of such nature that forces the state to
compromise its sovereignty. The question that therefore arises is what constitutes a
just law and what makes it an unjust one. This is of course subjective in nature.
Here, it is imperative to mention what Martin Luther King, Jr. had to say about a
just and unjust law and what separates the two:
"How does one determine when a law is just or unjust? A just law is a man-made
code that squares with the moral law, or the law of God. An unjust law is a code
that is out of harmony with the moral law. To put it in the terms of St. Thomas
Aquinas, an unjust law is a human law that is not rooted in eternal and natural
law."5
The following may be considered to be the broad parameters of a positive and fair
law:
i. To start with, it can be said that a just law treats all men and women alike. Law
should seek to abominate discrimination and unjust differential treatment. A
just law should be in consonance with the moral law and not be out of harmony
with the moral law. A good law is the anti-thesis of arbitrariness. All men are
created equal and hence a good law should seek to endow them with certain
inalienable rights such as life, liberty and happiness. It can be further argued
that a just law helps the people to prosper and excel whereas an unjust laws put
impediments in their way.
ii. Law should be such that it allows legitimate amount of flexibility in
interpretation and while arriving at a decision. It should not be so stringent with
its absoluteness that it makes a man guilty of doing what even natural laws and
prudence would uphold to be right. For instance a law should make murder
5 “Letter from a Birmingham Jail” by Martin Luther King, Jr. dated 16th April 1963, available
on http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html visited as on 5th November, 2014.
504
punishable but at the same time counter the same when committed in self-
defence under certain conditions. Good laws embody 'Rules of natural justice'.
Their aim should be to secure justice or to prevent miscarriage of justice.
iii. A good law addresses a need. A need which is the call of the times must be
addressed and embodied in a law. When provisions address needs, conflicts are
easier to resolve. This way scheme of things is orderly and caters to the
expectations of society. This in turn nullifies aberration and restores normalcy.
iv. A good law is readily understood in purpose and in operation. The mandate a
law carries should be explicit and clear. The target, the aim and the
repercussions should be well defined. In fact it should also talk about
implementation so that it does what it intends to do and does not amount to
words with no value or use in the practical sense.
v. Just laws conform to a society's principles. And why should it be any different
when laws in the first place are made for the society, by the representatives of
the society. Law and society go hand in hand. It is almost a symbiotic
relationship that thrives on a watchful scrutiny of both serving each other's
contemporary status.
vi. The basic proposition is that a just law is the one that maximizes the overall
good consequences of an action. At the same time some believe that it should
be to promote the least amount of evil or harm, or to prevent the greatest
amount of suffering for the greatest number. If one takes both into account in
evaluation of the social value of a law (a synthetic approach), the test becomes
a balancing act. On one side of the scale is the societal value of overall good
consequences, on the other side is the societal value of preventing overall
harm. This proposition suggests the following framework for evaluation of
whether a law is good or bad.
A. How many people benefit from the good consequences of a law?
B. How many people benefit from the reduction of harm as consequences of a
law?
C. Do the benefits from promoting good consequences outweigh the costs of
reduction of harm?
D. Do the benefits from reducing harm outweigh the costs to the greater good
in taking no action?
E. Are the net consequences of a law perfectly knowable from either
perspective or does the possibility of unforeseeable consequences exist?
505
Can the unforeseeable risks be minimized either by construction of the
law(s) to allow for contingencies or by regulating other risks or
contributing factors?
F. Do solutions from either perspective negatively impact human and/or civil
rights? Do those negative impacts outweigh the positive effects to the
greater human and/or civil rights of all?
vii. At last it can be said that the difference between a just and an unjust law is in
the equal application of said law. For instance, Aristotle believed the unjust
man suffers from the vice of greed, taking more than his fair share.6 The just
man has the opposite tendency and errs on the side of taking a bit less than his
fair share, especially when in doubt.7
The law should further the interest of the society as a whole. The bone of
contention actually resides between the need to have ordered injustice versus the
importance of guaranteeing ordered liberty.8 When law becomes alien to common
sense, its moral rationale too becomes incomprehensible. History bears testimony
to the fact that just and fair laws have enjoyed overwhelming support. They have
received unanimous appreciation and acceptance from the masses and continue to
do so.
7.4 FAIRNESS OF CIVIL TRIALS
Every person has the right to a fair trial, and the effective protection of human
rights depends on the availability of free access to competent, independent and
impartial courts. The availability of an independent and impartial court system is
not is essential not only to individuals for their pursuits, but also economic entities
for fair trade and commerce. Enterprises are reluctant to invest in countries where
courts are not perceived as administering justice impartially. Also, in countries
where there is free access to courts, people are not tempted to resort to self help
through aggression to resolve their disputes.
6 Aristotle, Nicomachean Ethics, Book V, Chapter 1, verse viii. 1129 b 1.
7 “The fair man is inclined to take less than his due”, Aristotle, Nicomachean Ethics, 1136 b 20-
21. 8 Frank Johnson Jr., ‘Civil Disobedience and The Law’, Tulane Law Review, 44 (December,
1969).
506
A brief survey of the most relevant aspects of the international jurisprudence
accompanied by description of the relevant legal rules would be propitious. The
key legal texts on fair trial are to be found in Article 10 of the Universal
Declaration of Human Rights,9 article 14 of the International Covenant on Civil
and Political Rights,10 article 7 of the African Charter on Human and Peoples’
rights,11 article 8 of the American Convention on Human Rights,12 and article 6 of
the European Convention on Human Rights.13
The right to a fair trial is among the most extensive human rights, and is
aimed at proper administration of justice. It includes the following fair trial rights:
� the right to equality;
� the right to be heard by a competent, independent and impartial tribunal;
� the right to a public hearing;
� the right to be heard within a reasonable time;
� the right to counsel;
� the right to interpretation.
7.5 FAIRNESS IN PROCEDURE
The objective of court in deciding each case is to advance justice. However, this
9 Article 10 of the Universal Declaration of Human Rights states, "Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations..”
10 Article 14(1) of the International Covenant on Civil and Political Rights, provides that “all persons shall be equal before the courts and tribunals.”
11 Article 7(1) of the African Charter on Human and Peoples’ Rights states that “Every individual shall have the right to have his cause heard. This comprises: A) The right to an appeal to competent national organs against acts of violating his
fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;
B) The right to be presumed innocent until proved guilty by a competent court or tribunal; C) The right to defence, including the right to be defended by counsel of his choice; D) The right to be tried within a reasonable time by an impartial court or tribunal.”
12 Article 8(1) of the American Convention on Human Rights states, “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”
13 Article 6(1) of the European Convention on Human Rights states, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
507
goal of justice, though universally desired, is of elusive and subjective character.
People often frame justice issues in terms of fairness and invoke principles of
justice and fairness to explain their satisfaction or dissatisfaction with decisions.14
They want courts to treat them fairly and to operate according to fair rules. What
constitutes fair treatment and fair rules is expressed by a variety of doctrines. The
principles of equity, equality and need are most relevant in the context of
distributive justice.15 These principles rest on the notion that fair treatment is about
giving people what they deserve.16 However, because these principles may come
into conflict, it is often difficult to achieve all of these goals simultaneously. This
balancing is what a civil court grapples with in each case.
Principles of justice and fairness are also central to procedural justice, which are
enjoined to ensure processes that generate unbiased, consistent, and reliable
decisions. This requires that courts must make an honest, unbiased decision based
on appropriate information. For this, the judge must take into account only relevant
factors. These factors, in the context of injunctions, were traditionally known to be
falling through a narrow compass but the scope has been widened by the doctrines
of equity. An unbiased, universally applied procedure can ensure impartiality as
well as consistency. When principles of justice operate ineffectively or not at all,
confidence in courts may be undermined. Citizens may feel alienated and withdraw
their commitment to the "unjust" institutions of dispute redressal.
7.6 INNOVATION AS KEY TO COMPLEX LITIGATION
In some cases, the facts presented are such that there is only one outcome that’s
possible and usually the result of such cases is predictable. The problem lies in
complex cases, where the court has to be a make a judgment about two positive
values weighing them against each other. These complex cases may perplex courts
as they do not admit of simple resolution. Much complex litigation, therefore, will
take the judge into unchartered territory terrain with little statutory guidance on
how to respond to the pressing needs. To deal with such cases, judges are
14 Tom R. Tyler and Maura A. Belliveau, "Tradeoffs in Justice Principles: Definitions of
Fairness," in Conflict, Cooperation, and Justice, ed. Barbara B. Bunker and Jeffrey Z. Rubin, (San Francisco: Jossey-Bass Inc. Publishers, 1995), 291.
15 Chris Armstrong, Global Distributive Justice: An Introduction (Cambridge University Press, 2012). <http://books.google.com/books?id=LJU0djAZ1osC>.
16 In general, people deserve to be rewarded for their effort and productivity, punished for their transgressions, treated as equal persons, and have their basic needs met.
508
encouraged to be innovative and creative to meet the needs while remaining
mindful of the bounds of existing law.
Studies of the legal process by lawyers and jurists generally emphasize the role of
judges in making legal decisions.17 A supposition is that judges have significant
monopoly power and the individuality of the judge is highlighted to explain the
decision. This theory relies substantially on the ‘tastes’ of judges and is promoted
by Stigler and Becker.18
7.7 CERTAINTY OF LAW AND PREDICTABILITY OF DECISIONS
There are two elements in the evolution of law – certainty and flexibility. It is the
desire of everyone to be sure of the provisions of law one has to obey. This is
especially true of the rules of law the breach of which affects one’s life and liberty.
The Indian Law Commissioners who prepared the draft laws for India very rightly
adopted as their motto a statement which was drawn up by Macaulay and has
become classical: “Our principle is simply this – uniformity when you can have it,
diversity when you must have it, but in all cases certainty.”
In Rome, the drawing up of the XII Tables was the result of agitation by the
Plebiens who felt the hardship of being ruled by customs a knowledge of which
was confined to the Patrician caste and of being left to the mercy of the patrician
Magistrate.
One of the fundamental features of the English constitution is the rule of law. That
means there is no reserve of arbitrary power in the executive. The executive is
under law. As much as one does not allow the executive to have wide discretionary
powers in dealing with the life, liberty and property of the citizen, one may also
like to entrust everything to the absolute discretion of the judge however wise,
however learned, however impartial he may be.
Bentham poured scorn on the uncertainty of the methods of judge made law: “On
the question what the law is, so long as the rule of action is kept in the state of
17 This aspect has been highlighted in Charles H. Sheldon, The American Judicial Process (1974)
and Glendon A. Schubert, The Judicial Mind Revisited (1974). 18 George J. Stigler & Gary S. Becker, De Gustibus Non est Disputandum, 67 Am. Econ. Rev. 76
(1977).
509
common, alias imaginary law, authority is every thing. The question is what on a
given occasion a judge is likely to think. Wait till your fortune has been spent in
the enquiry and you will know. But, for as must as it is naturally a man's wish to be
able to give a guess on what the result will eventually be before he has spent his
fortune he applies through the medium of B (an attorney) for an opinion of C (a
counsel) who considering what D (a former judge) has said or been supposed to
say deduces therefrom his guess as to what when the time comes, Judge A, he
thinks, will say.”
Not only jurists but also legislatures have been resentful of the power of the judges
to make law, despite being conscious of the uncertainty attached to the process.
When an Act is passed the Court has to interpret and apply its provisions. If the
Act has been in force for a considerable period one has to look for the law to the
decisions and not to the Act itself and commentaries give an idea of the part played
by the judges. Their decisions amount to a subordinate source of law.
An attempt was made by the Prussain Code of 1794 of curtail the power of the
judges. It forbade all interpretation as distinct from direct application and ordered
that the tribunals should lay all cases of doubtful verbal meaning before a special
committee of jurists and statesmen. This device was unsuccessful as it was
naturally impossible to draw a precise line between application and interpretation
and to reduce a Court to the functions of a mere sorting machine. The law was
repealed in 1798. But the attempt shows that law makers have been alive to the
great danger of leaving the formulation of law to the judge who could do so only
after a litigant has, in the words of Bentham, spent his fortune.
Even courts are conscious of the danger of uncertainty. Judges are reluctant to add
something to an explicit provision as it may render uncertain the provisions of the
law, even the script of the law transgresses its intended scope. It is widely believed
that in the administration of law, certainty is more important than justice.
7.8 PRACTICE AND PROCEDURE OF INJUNCTIONS
Having scanned and analyzed the requirements of a just law and its fair
administration, it has to be assessed whether the law of injunctions, in theory and
in practice (as administered by courts) weighs up to the standards. For this, the
510
prevailing practices and procedures of each form of injunction are first enunciated
separately.
7.8.1 TEMPORARY INJUNCTION
The jurisdiction of courts of justice to issue injunctions is not confined to the
protection of equitable rights but extends to the protection of legal rights to
property from irreparable harm or from serious damage pending trial. This power
owes its genesis to the original office of the Court of Chancery19 and has
manifested itself in the form of temporary injunction.
It has been seen above that a temporary injunction is a judicial process whereby the
party is required to do or to refrain from doing any particular act. Its main purpose
is to preserve the subject matter of the suit in status quo for the time being.20 An
order of temporary injunction is in the nature of preventive relief ordinarily granted
to preserve status quo in respect of the subject matter of the suit.21 It is a well-
settled principle of law that interim relief can always be granted in the aid of and as
ancillary to the main relief available to the party on final determination of his
rights in a suit or any other proceeding.22 Temporary or interlocutory injunction
may be granted until a specified time or until further order of the Court.23 In the
latter case if the injunction is not dissolved during the suit, it terminates with its
disposal.24
Section 37(1) of the Specific Relief Act, 1963 provides that temporary injunctions
are such as continue until a specified time, or until the further order of the Court,
and they may be granted at any stage of the suit. Temporary injunctions are
regulated by the Code of Civil Procedure, 1908. Such an order decides no fact,
fixes no right, and is not at all necessary for the final determination of the cause.
The mere institution of a suit does not entitle the plaintiff to relief. He must satisfy
the court that there is a fair and substantial question to be tried.25 Where there was
no prima facie case nor balance of convenience in plaintiff's favour, grant of
19
Selchow & Righter Co. v. Western Printing etc Co. 112 F 2d 430. 20
Central Coalfields Ltd v. M/s. Jugnu Construction AIR 2003 NOC 529. 21
Billimoria v. Indian Institute of Architects 2005 (2) Mah LJ 206. 22
Matthan Singh v. 2nd Addl. Dist. Judge 1996 AIHC 2275. 23
Sopan Maruti Thopte v. Pune Municipal Corporation AIR 1996 Bom 304. 24
Balbhaddar v. Balla AIR 1930 All. 387. 25
Chand Sultana v. Khurshid AIR 1963 AP 365.
511
temporary injunction was held illegal.26 For instance, where a public body is
executing a work of public utility, the court did not grant temporary injunction
restraining construction merely on the plaintiff's illusory and unfounded
apprehension that the plaintiff would suffer damage in land.27
“Interim” order usually remains in force for the whole period of the suit unless
varied or vacated under Rule 4 or set aside in appeal. “Ad interim” order operates
till the hearing of the injunction application.28 Existence of a temporary injunction
or temporary arrangement cannot continue after disposal of the suit or
proceedings.29 Court can impose conditions only while granting injunction and not
while rejecting the prayer for injunction.30 An injunction order cannot affect a
transaction made prior to it. A stay order becomes effective on the day on which it
is passed. The fact that an interim injunction order was served later on through
formal process by itself cannot absolve the authorities to abide by such orders if
the same has been otherwise brought to their notice and they are made aware of
it.31 Interim injunction operates until the disposal of the suit. On the dismissal of
the plaintiff's suit, interim injunction obtained by defendant therein is not
executable under Section 36 or Section 151 of Code of Civil Procedure, 1908. On
such disposal either on merits or on the dismissal of the suit for default, interim
injunction has no independent existence.32 The Courts should grant ad interim
orders for a limited period.33 If a building is constructed in the meantime on the
property after 'notice' and before grant of any injunction, the Court has the power,
if need be, to have it demolished. If possession is lost, it can be restored. If
property is encumbered, the same can be held to be subject to result of the ultimate
decree.34 Where the defendants with the consent of the plaintiff had raised
construction over the land in question about twenty years back and due to rainy
season the said construction had fallen down the defendants could not be restrained
from raising new construction.35
26
Bank of Baroda v. Satyendrapal AIR 2001 Raj. 23. 27
Jasminder Singh v. Gram Panchayat Bopari Kalan (2001) (2) Punj. LR 423. 28
Sucheta Dilip Ghate v. Dilip Shantaram Ghate AIR 2003 Bom 392. 29
Nand Singh v. Hazoor Singh 1997 AIHC 1092. 30
Jeevajothi Ashrama v. B.P. Ramachandra 1996 AIHC 4704. 31
Maheshbhai R. Patel v. Palsana Gram Panchayat AIR 1998 Guj 81. 32
Ramesh Akre v. Mangalabai Pralhad Akre AIR 2002 Bom 487. 33
S.K. Kantikar v. Bhiwandi Nizampura Municipal Council AIR 2000 Bom 453 (DB) 34
Nisha Raj & Anr. v. Pratap K. Kaula 57 (1995) DLT 490. 35
Jage Ram v. Amar Singh 1998 AIHC 2717.
512
Interlocutory orders are of various kinds. For example, orders of stay, injunction or
receiver are designed to preserve the status quo pending the litigation. They do not
in that sense decide in any manner the merits of the controversy in issue in the suit
and are certainly capable of being altered or varied by subsequent applications for
the same relief. As these findings do not impinge upon the legal rights of parties to
the litigation the principle of res judicata does not apply to the findings on which
these orders are based. While determining issues in a suit, a Court is not justified in
making use of the order on the application for temporary injunction.36 Similarly,
while disposing of an application for temporary injunction, the Court does not
adjudicate on the subject matter or any part of it on merits. The Court considers the
application for temporary injunction in the light of well-known principles and then
exercises its discretion weighing all relevant consideration without any expression
of opinion on merits of the matter.37
Interlocutory relief by way of temporary injunction cannot be granted as a matter
of course. The Court is required to exercise judicial discretion in granting the relief
only when the three essential conditions are satisfied by the party praying for
injunction.38 The Court must take into consideration the effective and relevant
documents before it decides to grant or refuse interim injunction.39At the stage of
granting temporary injunction, a strong prima facie case has to be established.40
The powers of courts under Order XXXIX Rules 1, 2 and 7 to grant appropriate
relief is not to be confused with the actual relief claimed by the applicant in the
plaint. The Court has power to grant appropriate relief in keeping with the case of
the parties and in the interest of justice.41
The principles governing the grant of injunction are well-settled. The power is
discretionary to be exercised on sound judicial principles.42 The object is to
preserve while rights are being litigated and the onus is on the plaintiff to show his
need for the injunction.43 Where no violation of rights of the plaintiff was
36
Bhagchand v. Administrator, M. Corpn. Indore AIR 1005 MP 159; Arjun Singh v. Mohinder
Kumar AIR 1964 SC 993. 37
Colgate Palmolive v. Anchor Health 2005 (1) Mah LJ 613. 38
State of Orissa v. Janki Sahoo 91 (2001) CLT 682. 39
Pradip Post Trust v. M.D. IDCO 91 (2001) CLT 682 (Ori.) 40
Uniply Industries Ltd. v. Unicorn Plywood Ltd. AIR 2001 SC 2083. 41
Ram Kumar v. J.M. Agarwal Tobacco Co. Ltd. 2001 (1) GLP 195 (203) (Gau). 42
Subba v. Haji 26 M 168 43
Surendrasingh v. Lal AIR 1975 MP 85.
513
involved, interim injunction could not be granted.44 The Court will first see that
there is a bonafide contention between the parties, and then on which side, in the
event of obtaining a successful result of the suit, will be the balance of
inconvenience if the injunction does not issue bearing in mind the principle
governing the grant of injunction.45 In deciding the application for interim
injunction, the Court is to see only prima facie case, and not to record finding on
the main controversy involved in the suit prejudging issues in the main suit. In the
latter event, the order is liable to be set aside.46 The interlocutory relief by way of
injunction cannot be granted as a matter of course and the Court is required to
exercise judicial discretion in granting the relief only when the three essential
conditions are satisfied by the party praying for the injunction.47 Temporary
injunctions should never be lightly granted. For instance, it would be a serious
impediment if persons in possession were to be restrained from making use of the
property merely because a suit has been instituted with reference to it.
7.8.2 PERMANENT INJUNCTION
It has already been seen that perpetual injunction is an order of the Court directing
a party to the proceedings to do or refrain from doing a specified act. It is a remedy
of an equitable nature and acts in personam. It is granted in cases in which
monetary compensation affords inadequate remedy to an injured party.48 Bentham,
in his treatise, Theory of Legislation, has pointed out how English law considers
money as the remedy for all evils, the palliative for all affronts, the equivalent for
all insults,” a notion largely due to the spirit of commerce inherent in the nation.
“The same spirit,” says Sir Edward Fry, “which led to the enforcement of
contracts, also brought in the notion that money is an equivalent of everything as
universal common measures.”49
By perpetual injunction a person is perpetually restrained or forbidden from
committing an act which would violate the right of the applicant established at the
hearing.50 Perpetual injunctions are such as continue forever, and can only be
44
Hans Raj v. J.K. Khatri AIR 1999 Del. 346. 45
Begg Dunlop & Co. v. Satish 23 CWN 677. 46
Kalima Plastic Pvt. Ltd. v. H.P. Financial Corpn. AIR 2001 HP 29. 47
State of Orissa v. Janaki Sahoo AIR 2001 Ori 112. 48 Snell, Principles of Equity, 27th Edn. p. 624. 49 Fry, Specific Performance, 3rd Ed. Sec. 8 50
Wood v. Convay Corpn. (1914) 2 Ch 47.
514
granted by a decree made at the hearing and upon the merits of a suit and
concludes a right forever.51 If the plaintiff succeeds in establishing his legal right
and its violation, he is entitled to grant of perpetual injunction preventing the
recurrence of the wrong which led him to bring the action.52 A perpetual injunction
is an injunction granted by a judgment which finally disposes of the injunction
suit.53 In order to grant a relief on the merits of the case by a perpetual injunction,
it is not a pre-requisite that a temporary injunction should have been applied for
and granted.54
Perpetual injunctions are in no sense provisional remedies but are always and must
be the final relief.55 The grant of perpetual injunction should advance the cause of
justice.56 An injunction will be granted if it will restore or tend to restore the
plaintiff to the position in which he stood prior to commission of the acts
complained of, and in which he had a right to stand and if the injury complained of
is of such a nature that damages will not be an adequate compensation.57 Where a
defendant has undertaken before the Court not to infringe upon the plaintiff's rights
and there is no probability that the wrongful act will be repeated, the court may,
instead of granting an immediate injunction, make a declaration of the plaintiff's
right and give him liberty to apply for an injunction in the event of the defendant
repeating the offence or threatening to disturb the plaintiff's rights.58 The
aforementioned principles which govern perpetual injunctions apply to temporary
injunctions as well with the exception as hereinafter stated.59 Whereas upon an
application for a temporary injunction, the plaintiff is required merely to show a
prima facie case, in order to obtain a perpetual injunction, the legal right must have
been established as well as the fact of its actual or threatened violation productive
of serious damage. A permanent injunction is only granted when some established
right has been invaded and when damage has occurred or must necessarily accrue
from the act or omission complained of.60 There must have been a material injury
51
Wilkinson v. Cummins 11 Hare 337. 52
Pennington v. Brinsop Hall Coal Co. 5 CH D 769. 53
Jackson v. Bunnell 123 NY 216. 54
Bedford v. Leeds Corpn. (1913) 77 JP 430. 55
Traders Bank v. Wright 17 Man 695. 56
Suryanath Singh v. Khedu Singh 1994 Supp (3) SCC 561. 57
Wood v. Sutcliffe 2 Sim (NS) 165. 58 Kerr, Injunctions, 6th Edn. p. 31. 59 Woodroffe, Injunctions, 6th Edn. 1964. pp.135-36. 60
Krishna v. Venkatachella Mudali 7 Mad HCR 60.
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to a clear legal right and damages must not afford sufficient compensation.61
Section 37 of the Specific Relief Act, 1963 provides that a perpetual injunction can
only be granted by the decree made at the hearing and upon the merits of the suit.
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. 62
In a suit for permanent injunction the plaintiff has to establish his title to the
property in respect of which he is claiming the injunction and the right which he
wants to enforce.63 Where a defendant has given an undertaking to the court to not
infringe upon the plaintiff's rights, and there is no probability that the wrongful act
will be repeated, the court may, instead of granting an immediate injunction, make
a declaration of the plaintiff's right, and give him liberty to apply for an injunction,
in the event of the defendant repeating the offence or threatening to disturb the
plaintiff's rights. The fact that trifling or merely nominal damages may have been
recovered at law, or that the damage is small, is not per se a sufficient ground for
refusing to grant a perpetual injunction, but it is a circumstance which the Court
will take into consideration in determining whether to exercise its jurisdiction. The
Court will in general have agreed not only to the strict rights of the plaintiff and
defendant, but also to the surrounding circumstances and the conduct of the parties.
The consideration of balance of convenience and inconvenience in granting or
withholding the injunction is not to be neglected by the Court. If granting the
injunction would have the effect of inflicting serious damage upon the defendant
without restoring or tending to restore the plaintiff to the position in which he
originally stood, or doing him any real practical good, or if the mischief
complained of is trivial, or can be properly, fully, and adequately compensated by
a pecuniary sum, an injunction will not issue.64 If, on the other hand, the mischief
complained of is of so material a nature that it cannot be adequately compensated
by a pecuniary sum, and granting an injunction will restore or tend to restore the
parties to the position in which they formerly stood and have a right to stand, or it
is not possible to measure the damages with any certainty or satisfaction, it is the
duty of the Court to interfere by injunction, so also as a general rule when the
61
Straight v. Bum 5 Ch App 163. 62
Stollmeyer v. Trinidad Lake Petroleum Co. (1918) AC 85. 63
Moulasab Rajasab v. Naganagouda Paravatagouda 1998 AIHC 1927 (Kant.). 64
Attorney-General v. Sheffield Gas Consumer, (1853) 3 De G.M. & G. 304; Attorney-General
v. Grand Junction Canal, (1909) 2 Ch. 545.
516
defendant has agreed that a particular thing shall not be done.65
7.8.3 DIFFERENCE IN PRACTICES OF TEMPORARY INJUNCTION AND PERPETUAL INJUNCTION
A clear legal distinction exists between an 'order' granting injunctive relief and a
'judgment' granting a perpetual injunction, the former being merely interlocutory
preserving status quo or protecting the rights of litigants pending a decision on
merits, and the latter being a final adjudication of the rights of the parties, subject
only to the right of appeal, and full protection to the rights of the party affected by
the permanent injunction is secured by the right to supersede.66 A temporary
injunction is different from a perpetual injunction in that it is preliminary to the
hearing on merits and not at all dependent on such hearing. A perpetual injunction
may be had on the final hearing on merits.
A marked feature of temporary injunctions, as distinguished from those which are
final or perpetual, is that the former are liable to be dissolved upon sufficient cause
shown at any stage of the proceeding. In general, it may be said to rest on sound
discretion of the Court to dissolve an interlocutory injunction upon developments
based on facts which result in denial of equities, if such course protects the rights
in interest. This is so whether the injunction is prohibitory or mandatory. The
operation and effect of a final injunction is to perpetually inhibit the defendant
from the commission of the act enjoined and of an interlocutory injunction to
prohibit the commission of a particular act during the period mentioned in the
order. An injunction generally protects the plaintiff named in the record.67
7.8.4 MANDATORY INJUNCTION
A mandatory injunction is an order requiring the defendant to do some positive act
for the purpose of putting an end to a wrongful state of things created by him or
otherwise in fulfillment of his legal obligations. The avowed object of injunctions
is prevention and their aim is to maintain status quo ante.68 This can usually be
effected by a mere restrictive order, that is, one which forbids the carrying out of a
65 Kerr, Injunctions, 6th Edn. pp. 30-32. 66
Allen v. Gulf Oil Corporation 139 SW 2d 207. 67
Lund v. Blanshwar 4 Hare 290. 68
Krishnan v. Kilasa Thammal, 108 I.C. 69: A.I.R. 1928 Mad. 810.
517
threat of injury, or the repetition of an injurious act.69 In the latter case, it may well
be that the act which has been committed has left an abiding injury and it is
impossible to restore the status quo, unless that which has been done is undone. A
familiar example of such an injury is where the defendant has erected a building
which causes a perpetual obstruction to the access of light to the plaintiff's house,
to an extent that it breaches his legal right. 70 In such a case it is evident that so
long as the building is allowed to remain in an obstructive situation, restoration of
the parties to their former condition is impossible and therefore mandatory
injunction may be issued directing its demolition. Sometimes it is necessary in
order to prevent the breach of a legal right not only to grant an injunction in the
usual restrictive form but to compel the performance of certain acts by ordering the
defendant to undo that which he has done. Such an injunction is termed
mandatory.71
A mandatory injunction may forbid the defendant to permit the continuance of a
wrongful state of things that already exist at the time when the injunction is
issued.72 The purpose of mandatory injunction is thus to restore wrongful state of
things to their former rightful order. 73
The jurisdiction to grant an injunction is always discretionary and the Court, before
granting a mandatory injunction, will weigh all the facts and circumstances with
great caution.74 A threat of invasion over established rights justifies the grant of
mandatory injunction in appropriate cases.75
There is no real distinction between injunctions restrictive and mandatory, except
that the order in the former is negative, and in the latter it is positive.76 The
considerations which apply to grant of mandatory injunction are somewhat
different from the considerations which govern the grant of prohibitory injunction,
although the general principles for grant of both kinds of injunctions are essentially
69
Shamnagar Jute Factory v. Ramnarain, I.L.R. 14 Cal. 189. 70
Kartar Singh v. Chhaju, 108 I.C. 171. 71
Titu Ram v. Cohen, I.L.R. 33 Cal. 203 (P.C.). 72
Binode Kumari v. Soundamoney, I.L.R. 16 Cal. 252. 73 Dr. Banerji's Tagore Lectures, 2nd Ed., p . 650. 74
Meghu Mian v. Kishun Ram AIR 1954 Pat 477. 75 Lakshmi Narain v. Tara Prosunno ILR 31 Cal 944. 76
Isenberg v. East India House Estate Co. Ltd.; (1963_ 3 De. G. J. & Sm. 263 at p. 272, per Lord Westbur, L.C.
518
the same.77 In a prohibitive injunction, a wrongful act is forbidden, while
mandatory injunction enjoins performance of some act. The purpose and effect,
however, of both is identical, viz., restoration of the status quo ante. Nevertheless
the immediate effect of a mandatory injunction, so far as a defendant is concerned
is obviously more serious than that of injunction merely negative, for the
performance of the act enjoined necessarily puts him to expense and trouble, which
may be very considerable.78
Where in order to prevent the breach of an obligation, that is, the legal right,
whether arising out of contract or otherwise, the Court considers it necessary to
grant an injunction in the usual form, it may in its discretion issue a restrictive
injunction restraining the defendant from doing the acts complained of and may at
the same time grant a mandatory injunction by ordering him to restore things to
their former condition, if the remedy by way of damages is inadequate for justice.
In other words, the Court may not only forbid the repetition of an injurious act, but
also with a view to restore status quo, direct that what has been done be undone.79
Formerly the Court of Chancery would not direct the performance of a positive act,
but would instead restrain a defendant from allowing things to remain as they
were.80 For example, instead of directing demolition, it would restrain the person
from allowing buildings to remain on land which indirectly accomplished the same
result. This form of order was essentially negative.81 It restrained the defendant
from permitting a condition of affairs which he had wrongfully brought about,
occasioned or suffered to exist, from continuing any longer, and this compelled
him to do the acts necessary to bring about a discontinuance of the wrongful stage
of things produced by him, under the fear of attachment sequestration of property,
or other punishment for disobedience.82 No good reason existed for this
roundabout hesitating method of procedure.83 What the law declares to be just and
properly to be done, the courts should require to be done in a positive and direct as
well as an effectual manner.84 Thus, now all mandatory injunctions are permitted to
77
Puran Chand v. Nityanand AIR 1958 Punj. 460. 78
Smith v. Smith (1875) L.R. 20 Eq. 500 at p. 504, per Jessel, M.R. 79
Shield v. Godfrey & Co.,(1893) W. N. 115. 80 A.G. v. Mid. Kent Rly. Co. and South Eastern Rly. co. (1867) 3 Ch. App. 100. 81 C.M. Row, Law on Injunctions, (Ed. K. Swami), Lexis Nexis Butterworths, 8th Edn., 2003. 82
Jackson v. Norman by Brick Co., (1899) 1 Ch. 438 (C.A.). 83 Charrington v. Simons & Co. Ltd., (1972) 2 All E.R. 538; (1971) 1 W.L.R. 598 (C.A.). 84
Puran Chnd Sant Lal v. Nitya Nand, A.I.R. 1958 Punj. 460.
519
be in the direct mandatory form specifically making it obligatory to perform the
ordered task.85
In granting or withholding mandatory injunction, Courts exercise judicial
discretion and assess the amount of substantial damage done or threatened to be
done to the plaintiff and compare it with that which the injunction, if granted,
would inflict upon the defendant.86 The fact that a plaintiff has given prior notice
of objection to what is threatened does not necessarily imply that injunction would
be granted.87 The Court in granting or refusing to grant a mandatory injunction
considers whether and how the injunction, if granted, would affect the defendant.
In the first place, the Court considers the plaintiff's position, whose rights have
been interfered with and it is bound to protect his rights unless by so doing, it
would inflict such hardship upon the defendant as would amount to injustice.88 An
injunction is granted to restore the status quo ante and cannot be issued to create a
new order of things.89 It is used where the injury is immediate, pressing,
irreparable, clearly established by the proofs, and not acquiesced in by the plaintiff,
since an order directly compelling an abatement of the nuisance, or removal of the
obstructions, is not made upon interlocutory motion.90
Akin to prohibitory injunction, mandatory injunction is subject to the provisions of
Section 41. If the relief asked for is barred by any of the provisions of Section 41,
the Court will refuse mandatory injunction. In addition, mandatory injunction can
be refused in the following cases:
a. Acquiescence
If a person, having a right to object, acquiesces in the right violated, he is not
entitled to the discretionary remedy of a mandatory injunction.91 For example, in a
case where the plaintiff was residing only one kilometre away from the suit
property, he could have easily come to know about the defendant putting up the
construction, injunction directing demolition was refused.92 However, a plaintiff
85 Halsbury's, Law of England 4th Edn. Vol. 24, p. 511. 86 Krishan v. Kailasa AIR 1928 Mad 810. 87
Shamnagar Jute Factory v. Ramnarain (1887) ILR 14 Cal 189. 88
Myers v. Catterson 43 Ch D 470. 89
Sheo Nath v. Ali Hussain 1 All LJ 118. 90
Morris v. Redland Bricks (1969) 2 WLR 1437 (HL). 91
Punamma v. Venkata AIR 1953 Mad 456. 92 R.S.Muthuswami Gounder v. A.Annamalai AIR 1953 Mad220.
520
will not be deemed to have acquiesced if, knowing that the defendant has a right to
do a thing, the plaintiff assumes that he is not going to use his right for an unlawful
purpose.
b. Where the relief, if granted, would be nugatory
An occasion may arise in a given set of facts that though the relief is made out, the
effect of grant thereof is nullified by certain developments that have taken place
during the pendency of the suit. In such circumstances, cognizance would be taken
of the said developments and the relief would be refused.93 Where the relief
claimed is the demolition of certain structures which the defendant was not
authorised to make under the law then in force, the Court will not grant the relief
if the defendant has become entitled to make similar construction by reason of a
change in law after institution of the suit.94
c. Delay in seeking relief
A person who has not shown due diligence in applying to the Court for relief, will
in general, be debarred from obtaining interference of a Court of equity. If a
plaintiff knowingly stands by and make no objection, while the defendant in
ignorance invades his rights (as by erecting a building which obstructs an easement
of light or right of way), no injunction will be granted to him.95 Conversely, if the
defendant has himself acted with wilful and high-handed disregard of the plaintiff's
rights, an injunction will be granted even in a case which would otherwise have
been deemed too trivial for this remedy.96 A party seeking a mandatory injunction
should apply promptly, but mere delay is not a bar if it can be satisfactorily
accounted for.97
d. Triviality of damages to plaintiff
Mandatory injunction may be refused on the ground of triviality of damage to the
plaintiff and the existence of a disproportion between the detriment that the
injunction would inflict on the defendant and benefit that it would confer on the
93
Madho Singh v. Abdul Quaiyum AIR 1950 All 505. 94
Behari Lal v. Sheo Lal 3 NLR 14. 95
Duke of Leeds v. Earl of Amherst 2 Ph 117. 96 Salmond, Torts, 11th Edn. pp. 190. 97 Halsbury, Law of England, 3rd Edn., Vol. 21, p. 364.
521
plaintiff.98
Order 39 of the Code of Civil Procedure, 1908 empowers a Court to issue a
temporary mandatory injunction. However, the power to issue mandatory
injunction on interlocutory application is rarely exercised and instances where such
an injunction is granted by means of an ad interim order pending the application
itself are almost unknown.99 Mandatory injunction at the stage of interlocutory
application is issued only in cases of extreme hardship and compelling
circumstances and mostly when status quo on the date of the institution of the suit
is to be maintained.100 Even in cases where it is granted, the order must not go
further than restoring the condition that existed at the time of institution of the suit.
It must not create a new state of affairs.101 A case in which a mandatory injunction
is issued on an interlocutory application is where with notice of the institution of
the plaintiff's suit and the prayer made in it for an injunction to restrain the doing
of a certain act, the defendant does that act and thereby alters the factual basis upon
which the plaintiff claimed his relief.102 An injunction issues in such a case in order
that the defendant cannot take advantage of his own act and defeat the suit by
saying that the old cause of action no longer survives and a new cause of action for
a new type of suit had arisen. When such is found to be the position, the Court
grants a mandatory injunction even on an interlocutory application, directing the
defendant to undo what he has done with notice of the plaintiff's suit and the claim
therein and thereby compels him to restore the position which existed at the date of
the suit.103 In a landmark case, a joint family property was not divided by metes
and bounds between co-sharers. Yet one of the co-sharers sold his undivided share
to an outsider. The Court found that if such a buyer were permitted to gain
possession, irreparable damage would occur to the interests of other members of
the family. A temporary mandatory injunction was issued against the vendor and
vendee restraining transfer of possession.104
Preliminary mandatory injunctions have been granted more frequently by English
Courts than by American Courts. Indeed, it has been held in some American
98 Sahepherd Homes Ltd v Sadhan (1970) 3 All ER 402. 99
Minerva Shiksha Samiti v. Mithilesh Kumari 1985 Raj LW 22. 100
Magnum Films v. Golcha Properties AIR 1983 Del 392. 101
Lahore E S Co. v. Bombay Motor Co., 67 IC 742 (Lah). 102
Kandaswami v. Subramania (1918) ILR 41 Mad. 208. 103
Nandan Pictures Ltd. v. Art Pictures Ltd., A.I.R. 1966 Cal. 428 at pp. 429-30. 104
Dorab Cawasji Warden v. Coomi Sorab Wardan AIR 1990 SC 867.
522
decisions that a mandatory interlocutory injunction would never be granted. This
doctrine is not only opposed to the overwhelming weight of authority, but is
contrary to the principle which regulates the administration of preventive relief,
and is manifestly absurd. In one case, Lord Eldon105 granted preliminary injunction
restraining defendant “from using and maintaining certain dams, gates, etc., so as
to prevent water from flowing to plaintiff's mill as it had done.” This was done for
the express purpose of compelling defendant to remove the dams and gates which
he had constructed. In another case, a preliminary injunction was issued restraining
the defendant “from impeding plaintiff from navigating (a certain canal by
continuing to keep the canal banks and works out of repair, by diverting the water,
or by continuing the removal of the stop gate.”106 These two cases are among the
earliest instances of preliminary injunctions intentionally and expressly mandatory
in their operation.
In India, the exceptional cases in which temporary mandatory injunction may be
granted are:
a. where irreparable injury would otherwise result, or
b. where the defendant continues the act complained of after direct notice, or
after the proceedings have been commenced.
The order of injunction being discretionary, in case of appeal, a party appealing
against such an order must show that the lower Court acted wrongly in not granting
mandatory injunction.107 Where discretion has been properly exercised and is
supported by valid reason a Court of Appeal would ordinarily refuse to interfere.
But where a mandatory injunction has been issued arbitrarily, interference by the
appellate Court even in second appeal is not only justifiable but legally
necessary.108
Thus mandatory injunction conveys an order to undo that which has been done or
to do a particular act to restore things to their former condition and is regulated by
Section 39 of the Specific Relief Act, 1963. The jurisdiction to grant injunction is
always discretionary and the Court before granting a mandatory injunction will
105
Robinson v. Byron 1 Brown Ch. (Engl.) 588. 106
Lane v. Newdigate 10 Ves, Chafeeand simpson, Cas eq. 341. 107
Umesh Chandra v. Nibaran 19 CLJ 305. 108
Behary Lal v. Sheo Lal 3 NLP 114.
523
weigh all facts and circumstances with great caution. The balance of convenience
and inconvenience, the possibility of the injury being adequately compensated by
damages, the conduct of the parties, the nature and extent of the right infringed and
the expenses, where the defendant has acted reasonably but wrongly, will be taken
into consideration. In cases of mandatory injunction, prompt action is very
essential if an injunction is the desired remedy.109 In an appropriate case even
mandatory injunction may be granted without notice to the opposite party by
dispensing with notice under Order 39 Rule 3 of the Code of Civil Procedure, 1908
if necessary to avoid grave injustice.
The Courts have recognized that when the issuance of mandatory injunction would
involve the removal of a completed structure, which entails no inconvenience and
only a slight invasion of the plaintiff's right, not committed wantonly or after
protest, pecuniary compensation is the more appropriate remedy. But where a
considerable area of a land, including trees, is affected by the structures and where
the plaintiff proves his title to the land and asks for possession as well as an
injunction for the removal of the structure, and it would cause nothing except
expense and inconvenience to the defendant, a monetary compensation in lieu of a
mandatory injunction should not be granted.110 A mandatory injunction may be
granted with great circumspection and care.111
It is thus seen that injunctions are a form of equitable relief and they are adjusted in
aid of equity and justice to the facts of each particular case. Straightjacket formulas
have not been laid down to underscore and preserve flexibility of the remedy.
Courts, therefore, ought not to lay down absolute propositions when such are not
necessary and forge fetters for itself.112
7.9 ASSAY OF INJUNCTIONS IN SEPARATE CATEGORIES OF CASES
In the above part, the broad contours of the law within which the equitable and
discretionary remedy of injunctions is administered was outlined. The above
factors do hold valid for all kinds of cases, but their relative importance fluctuates
with the kind of injunction and the factual background in which it has been sought. 109
Benode Coomaree v. Soudaminey ILR 16 Cal. 252. 110
Nidamarti v. Ladooram Sowcar AIR 1936 Mad 687. 111
ALF Developers Pvt. Ltd. v. Veora Trivedi (1997) 70 DLT 373. 112
Tamil Nadu Electricity Board v. R. Pandian Pilla (198) 21 I.J.R. 21 609 at p. 21.612 (Mad.) Bhagwan Dass v. Surindra Kumar (1988-2) 94 P.L.R. 179 at p. 181.
524
It is this dynamism which, fuelled by equity, renders the remedy discretionary. The
discretion, of course, has to be exercised judicially and not arbitrarily.
To attempt to enumerate all the instances in which the species of relief is
obtainable would be an impossible undertaking, for the variety of cases described
as “endless” by an early writer on the subject,113 at a time when the jurisdiction to
grant injunctions was confined to one of the many courts, must be endless indeed
in the present day when every Civil Court is vested with the power “in all cases in
which it shall appear to the Court to be just or convenient.”114 In order to
understand the exercise of this discretion in its true perspective it is necessary to
closely examine the manner in which the principles have been applied by Courts in
various kinds of cases.
7.9.1 IMMOVABLE PROPERTY
Every court is constituted for the purpose of administering justice among litigants
and, therefore, must be deemed to possess all such powers as may be necessary to
do full and complete justice to parties to the lis before it. Injunctive relief is a legal
remedy that can be sought in a civil suit. Injunctive relief is an usually an
alternative to monetary damages. It can be awarded to a plaintiff in addition to, or
instead of, monetary damages. A party who violates an injunction may be subject
to sanctions including monetary fines. It is fairly common to ask for temporary
injunction to restrain a defendant from interfering with the peaceful possession and
enjoyment of the plaintiff over immovable property. Often, injunction is sought to
restrain the defendant from alienating the properties or creating any third party
encumbrances. Further, injunction is sought by the parties for being placed in the
same position in which they would have been had the court not intervened by its
interim order. This is known as restitution.
The various kinds of injunctions sought by litigants in respect of immovable
property can broadly be classified and studied under different heads, as hereinafter.
7.9.1.1 Protection of Possession
Statistically, the largest number of civil suits for injunction filed in the country
seek injunction for protection of possession. Some plaintiffs pray for prohibitory 113 Eden, Injunctions, 1st Edn., 1821 p.2. 114 Nelson, Law of Injunctions, Delhi Law House, 3rd Edn., 1994.
525
injunction against dispossession in perpetuity. Others pray for injunction only
against removal by force.
In the case of Maria Margarida Sequeria Fernandes and Others V. Erasmo Jack De
Sequeria (Dead) through L.Rs.,115 the Hon’ble Supreme Court held that even a
trespasser in settled possession cannot be dispossessed without recourse of law.
The Court's primary concern has to be to do substantial justice.
In the case of Rame Gowda (D) v. M. Varadappa Naidu116, the Hon'ble Supreme
Court held as under :
“In India persons are not permitted to take forcible possession; they must obtain
such possession as they are entitled to through a court. The person in peaceful
possession is entitled to retain his possession and in order to protect such
possession he may even use reasonable force to keep out a trespasser. The law will
come to the aid of a person in peaceful and settled possession by injuncting even a
rightful owner from using force or taking the law in his own hands, and also by
restoring him in possession even from the rightful owner (of course subject to the
law of limitation), if the latter has dispossessed the prior possessor by use of
force”.
In the case of Shakuntala Vs. Hira Nand Sharma117, the Hon'ble High Court of
Delhi noted as under:
“It is a principle of law that possession should prima facie be protected. Once a
person is in possession of law that dispossessed otherwise than by legal means. To
some extent a trespasser or wrong doer is protected”.
In the case of Babulal Vs. DDA118, the Hon'ble High Court of Delhi held that even
a trespasser is entitled to protect his possession until dispossessed in accordance
with law. Similar observations were made by the Hon'ble High Court of Delhi in
the case of Hem Chand Jain Vs. Anil Kumar & Anr119.
115 2012 (3) JT 451. 116 AIR 2004 SC 4609. 117 AIR 1986 Del 27. 118 43 (1991) DLT 570. 119 1992 RLR 224.
526
If the plaintiff is in possession of the suit property, the defendant or the owner of
the property can evict the plaintiff only by instituting a suit for recovery of
possession. Till so evicted, the plaintiff has a right to occupy, use and enjoy the
property.
The proposition that a person in settled possession cannot be removed by force
irrespective of title is also borne out from the decisions of Bhagabat Pradhan and
Others v. Laxman Pradhan and others120, M/s S.S. Fasteners v. Satya Paul
Verma121, N Umapathy v. B.V.Muniyappa122 and Ramasamy Moopanar v.
Rathnammal and Others123.
Even if the Court in an extraordinary case decides to grant ex-parte ad interim
injunction in favour of the plaintiff who does not have a clear title, then at least the
plaintiff must be directed to give an undertaking that in case the suit is ultimately
dismissed, then he would be required to pay market rent of the property from the
date when an ad interim injunction was obtained by him. It is the duty and
obligation of the Court to at least dispose off the application for grant of injunction
as expeditiously as possible. This is also the demand of equity and justice. It must
not be forgotten that injunction is an equitable remedy and the grant of the said
relief is not obligatory on the court. A person cannot be permitted to take
advantage of his own wrong, by suddenly turning up at a property, obtaining
illegal entry therein, and then seeking injunction restraining his unlawful removal,
forcing the owner of the property to file a civil suit for eviction, and to pass
through the rigours of trial.
In the case of D.T.T.D.C vs. D.R. Mehra & Sons124, the Hon'ble High Court of
Delhi held as under:
“In our view injunction is an equitable relief and the Court must see whether a
person who is a trespasser can seek the helping hand of the court for protecting his
unlawful possession as against the owner. A person who seeks equity must do
equity. He must also come to Court with clean hands. When he does these things
there will be no occasion for him to seek an injunction inasmuch as the trespass
120 AIR 2004 NOC 53 (Orissa). 121 AIR 2000 P&H 301. 122 AIR 1997 SC 2467. 123 1961 MLJ R 363. 124 AIR 1996 Delhi 351.
527
would have automatically stood vacated. If he does not do these things, he cannot
at the same time ask for the helping hand of the Court to protect his illegal
possession”.
It may be emphasized that the person seeking injunction against forcible
dispossession must be in “settled possession”. What is “settled” has also been
subjected to judicial discourse. The Hon’ble Supreme Court has thrown light on
this aspect in the case of Rame Gowda Vs. M. Varadappa Naidu & Anr.125 In that
case it was held that for possession to be “settled”, it must be long, effective,
undisturbed and must be to the knowledge of the owner. It was held that
possession which is flimsy, recurrent, intermittent, stray or casual cannot be stated
to have been acquiesced to by the owner and does not entitle the occupant to the
aid of the court.
In this context, it would be apt to refer to the decision of the Hon'ble High Court of
Delhi in the case of M/s G.M. Modi Hospital & Research Centre Medical Science
vs. Shankar Singh Bhandari & Ors.126 In that case, the Hon'ble High Court of Delhi
made the following observations:-
“While considering the question of grant of injunction the Courts are bound to
come to some tentative conclusion on facts and it cannot be said that they would be
decided at the time of the trial of the case. If that be the position, in every case a
person in possession of a property on the date of the suit would be entitled to
injunction ex debito justitiae on the basis of his possession whatever the nature of
the possession. Suppose A trespasses into B's property and he maintains to be in
possession for a few days and files a suit for injunction against B. Can injunction
be granted on the strength of his possession leaving the question whether his
possession is legal or not to be decided at the time of the trial of the case?”
The aforementioned question was answered by the Hon'ble High Court of Delhi in
the negative. It was held that unless a legal right to continue in occupation was
shown to exist, possession over the property cannot be protected by the Court.
The first requirement for grant of injunction against forcible dispossession, as
demonstrated above, was that occupation ought to be “settled”. The second 125 (2004) 1 SCC 769. 126 AIR 1996 Delhi 1.
528
requirement is that the occupation must amount to “possession”. It follows that a
licensee who is a mere occupant and is not in “possession” in the eyes of law is not
entitled to injunction against dispossession. The license to reside in the property is
terminable at will. The occupant does not have any right to continue to occupy the
premises against the wish of the licensor or the owner. He owes his stay in the
premises to the will of the licensor and his continuation in the premises is
susceptible to the change of this will. In the result, a licencee in the premises is not
entitled to any injunction against the true owner. His use of the premises does not
amount to “possession” in the eyes of law so as to deserve protection.
In the case of Sant Lal Jain vs. Avtar Singh127, it was held that a licencee cannot set
up title in himself in order to avoid surrender of possession of the property on
termination of the licence. It was laid down that it is the duty of such licencee to
surrender possession of the property.
In the case of G.N. Mehra Vs. International Airports Authority of India128, it was
laid down that after expiry of licence, the licencee is not entitled to any injunction
against the true owner. Grant of such injunction would amount to perpetuating his
unlawful possession.
In the case of Thomas Cook Limited Vs. Hotel Imperial & Ors.129, the Hon'ble
High Court of Delhi took note of a number of other decisions on the subject and
held that a licencee is a permissive occupant. His occupation does not amount to
“possession” and therefore he is not entitled to the grant of injunction against
dispossession.
In the case of Tamil Nadu Housing Board Vs. A Vismam130, it was held that a
trespasser is not entitled to injunction against dispossession by the true owner.
The deadlock created by conflicting decisions on the aspect of when injunction
against dispossession can be granted was sought to be resolved by the Hon’ble
Supreme Court in the ground-breaking decision of Anathula Sudhakar v. P. Buchi
Reddy131. In that case, it was laid down that when there is cloud over title, the
127 A.I.R. 1985 SC 857. 128 63 (1996) DLT 62. 129 127 (2006) DLT 431. 130 1996(2) R.R.R. 353. 131 AIR 2008 SC 2033.
529
plaintiff even if he is in possession, must seek declaration of title and not mere
protection of possession. It was observed thus:
“Where the plaintiff is in possession, but his title to the property is in dispute, or
under a cloud, or where the defendant asserts title thereto and there is also a
threat of dispossession from defendant, the plaintiff will have to sue for declaration
of title and the consequential relief of injunction”.
Applying the said decision, whenever there is a serious doubt over the title of the
plaintiff and the issue is not a simple one where the plea of either party can be
easily brushed aside, and the issue requires evidence and analysis, the plaintiff is
required to file a suit for declaration of title and injunction instead of a suit for
injunction alone. If the plaintiff refrains from seeking declaration of title, a
simplicitor suit for protection of possession is not maintainable. The rationale is
that in such cases the rival contentions of the parties relating to title need to be
adjudicated. However, such adjudication is not possible in the suit since the suit
does not seek declaration of title and merely seeks to protect the possession of the
plaintiff. Despite being aware that the defendants are claiming a different title, the
plaintiff chooses not to seek declaration of ownership. Hence, the question of title
goes beyond the scope of the suit.
It may be cautioned that all care must be taken to ensure that the plaintiff seeking
injunction against dispossession is in possession on the date of instituting the suit.
The issue of protection of possession can arise only when the plaintiff is in
possession. To prima facie ascertain the identity of the person in possession, regard
may be had to the documents filed by the parties including electricity and water
bills showing connections installed at the premises. A local commissioner may also
be appointed to aid this process. The reason for highlighting the importance of
ascertaining possession is that for the purpose of injunction against dispossession,
since the legal right emanates from Section 6 of Specific Relief Act, it is actual
physical possession and not deemed possession which is the determinative factor
to assess the entitlement to relief. If the plaintiff is not in possession of the
property, no order can be passed to protect possession. Under the garb of
restraining forcible dispossession, the plaintiff cannot be permitted to obtain
possession of the property. A person who is not in possession must institute a suit
for recovery of possession and not a suit for injunction. Instituting a suit for
530
recovery of possession being the ordinary and natural remedy available to the
plaintiff, and this remedy being efficacious and adequate, a suit for injunction
stands barred by the provisions of Section 41(h) of the Specific Relief Act.
Moreover, a person who is not in possession must value his suit for the purpose of
court fees and jurisdiction as per the market value of the suit property, in
accordance with Section 7(v) of the Court Fees Act, 1870 and Section 8 of the
Suits Valuation Act, 1887. He must accordingly pay ad valorem court fees. The
suit would also have to be filed before the court competent to entertain it as per the
pecuniary jurisdiction thereof. One cannot therefore institute a suit for injunction if
he is not in possession of the suit property. There is another way of looking at the
problem. When the plaintiff is not in possession, there is no question of existence
of any threat of dispossession and consequently there is no requirement of granting
protection against dispossession. The cause of action itself is amiss.
There is yet another category of cases where the suit property comprises of vacant
land. Such land is not occupied by any person. Often there is no agricultural
activity on the land which could assist in determination of possession. Hence, on
the vacant plot, nobody can be said to be in actual physical possession. Hence the
question of protecting the possession of either party does not arise. In this behalf,
reference may be made to the case of Anathula Sudhakar v. P. Buchi Reddy132, in
which the Hon'ble Supreme Court has laid down as follows:
“If two persons claim to be in possession of a vacant site, one who is able to
establish title thereto will be considered to be in possession, as against the person
who is not ale to establish title. This means that even though a suit relating to a
vacant site is for a mere injunction and the issue is one of possession, it will be
necessary to examine and determine the title as a prelude for deciding the de jure
possession. In such a situation, where the title is clear and simple, the court may
venture a decision on the issue of title, so as to decide the question of de jure
possession even though the suit is for a mere injunction. But where the issue of title
involves complicated or complex questions of fact and law, or where court feels
that parties had not proceeded on the basis that title was at issue, the court should
not decide the issue of title in a suit for injunction. The proper course is to relegate
the plaintiff to the remedy of a full-fledged suit for declaration and consequential
132 AIR 2008 SC 2033.
531
reliefs.”
Few relationships are as vital to man as that of possession, and the system of law,
however primitive, must provide rules for its protection.133 Under English Law,
possession is a good title of right against anyone who cannot show a better title. A
wrongful possession has the rights of an owner with respect to all persons except
earlier possessors and except the true owner himself. Even a wrongdoer, who is
deprived of his possession, can recover it from any person whatever, simple on the
ground of his possession. Even the true owner, who takes his own, may be forced
in this way to restore it to the wrongdoer, and will not be permitted to set up his
own superior title to it. He must first give up possession, and then proceed in due
course of law for the recovery of the thing on the ground of his ownership.
The law in India, as it has developed, accords with the above jurisprudential
thought.134 Once it is established by the plaintiff that he is in exclusive and settled
possession or it is admitted by the defendant that he is in such possession, an
injunction restraining the defendant from dispossessing the plaintiff must be issued
as a matter of course.135 The assertion that no injunction can be granted against the
owner is not an absolute proposition of law. An injunction of limited scope that the
true owner will not dispossess even a trespasser in settled possession except by the
due process of law, can be granted.136 Even the true owner can recover possession
of his property only by taking recourse to law.137 In a suit based on long and
peaceful possession and seeking protection against unlawful dispossession, title of
the property is irrelevant.138 Possession after expiry of lease is juridical possession
which cannot always be equated with lawful possession. Possession of a former
tenant is juridical possession which is a possession protected by law against
wrongful dispossession.139 There must be some semblance of right at least and that
right must continue till the judgment is pronounced, because on the day of
pronouncement of the judgment, the Court can pass appropriate order only in the
event of entitlement of such judgment, but not otherwise. A tenant on the expiry of
the lease cannot be said to continue in 'lawful possession' of the property against
133 Salmond, Jurisprudence, 12th Edn., p. 265. 134
Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy and Ors., AIR 1924 PC 144. 135
Ramshree Mhavir v. Girdharilal Bholanath Agarwal (1970) 11 Guj 971. 136
Harbans Singh v. Tahal Singh 1982 LLR 472 (Punj). 137
Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd. AIR 1996 SC 2102. 138
Prataprai N. Kothari v. John Braganza AIR 1999 SC 1666. 139
Kewal Chand Mimani v. S.K. Sen AIR 2001 SC 2569.
532
the wishes of the landlord if such a possession is not otherwise statutorily protected
under the law against even lawful eviction through Court process, such as under
the Rent Control Act.140
Lawful possession cannot be established without the concomitant existence of a
lawful relationship between the landlord and the tenant. This relationship cannot be
established against the consent of the landlord unless, in view of a special law, his
consent becomes irrelevant. Lawful possession is not litigious possession and must
have some foundation in a legal right to possess the property which cannot be
equated with a temporary right to enforce recovery of the property in case a person
is wrongfully or forcibly dispossessed from it.141
A person in peaceful possession is entitled to retain his possession and in order to
protect such possession he may even use reasonable force to keep out a
trespasser.142 A rightful owner who has been wrongfully dispossessed of land may
retake possession if he can do so peacefully and without the use of unreasonable
force.143 If the trespasser is in settled possession of the property belonging to the
rightful owner, the rightful owner shall have to take recourse to law; he cannot take
the law in his own hands and evict the trespasser or interfere with his
possession.144 The law will come to the aid of a person in peaceful and settled
possession by injucting even a rightful owner from using force or taking law in his
own hands, and also by restoring him in possession even from the rightful owner
(of course subject to the law of limitation), if the latter has dispossessed the prior
possessor by use of force.145 In the absence of proof of better title, possession or
prior peaceful settled possession is itself evidence of title.146 Law presumes the
possession to go with the title unless rebutted. The owner of any property may
prevent even by using reasonable force a trespasser from an attempted trespass,
when it is in the process of being committed, or is of a flimsy character, recurring,
intermittent, stray or casual in nature, or has just been committed, while the
rightful owner did not have enough time to have recourse to law.147 In the last of
140
M. C. Chockalingam v. V. Manickavasagam, AIR 1974 SC 104. 141
R. V. Bhupal Prasad v. State of Andhra Pradesh, 1995 AIR SCW 3836. 142
Rame Gowda v. M. Varadappa Naidu AIR 2004 SC 4609. 143
Taherakhatoon v. Salambin Mohammad, 1999 AIR SCW 755. 144
State of U. P. v. Brahm Datt Sharma, AIR 1987 SC 943. 145
Ahmedabad Municipal Corpn. v. Ramanlal Govindram, AIR 1975 SC 1187. 146
Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273. 147
Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620.
533
the cases, the possession of the trespasser just entered into would not be called as
one acquiesced to by the true owner. It is the settled possession or effective
possession of a person without title which would entitle him to protect his
possession even as against the true owner.148 The Court laid down the following
tests which may be adopted as a working rule for determining the attributes of
'settled possession' :
(i) that the trespasser must be in actual physical possession of the property
over a sufficiently long period;149
(ii) that the possession must be to the knowledge (either express of implied) of
the owner or without any attempt at concealment by the trespasser and which
contains an element of animus possidendi. The nature of possession of the
trespasser would, however, be a matter to be decided on the facts and
circumstances of each case;150
(iii) the process of dispossession of the true owner by the trespasser must be
complete and final and must be acquiesced to by the true owner;151 and
(iv) that one of the usual tests to determine the quality of settled possession in
the case of culturable land, would be whether or not the trespasser, after having
taken possession, had grown any crop. If the crop had been grown by the
trespasser, then even the true owner has no right to destroy the crop grown by the
trespasser and take forcible possession.152 Therefore when title of either party was
not prove and plaintiff was found to be in settled possession he would be entitled
to relief of injunction restraining defendant from interfering with his possession.153
7.9.1.2 Third Party Interest
One of the common prayers made in applications for interlocutory relief are for
temporary injunction restraining creation of third party interest in the suit property.
In such cases, ordinarily, when there is a bona fide dispute regarding title over the
property, till the dispute is decided on trial, the suit property needs to be preserved. 148
S. Krishnan v. State of Madras, AIR 1951 SC 301. 149
Ramesh Chand Ardawariya v. Anil Panjwani, (2003) 7 SCC 350. 150
Nair Service Society Ltd. v. K. C. Alexander and Ors., (1968) 3 SCR 163. 151
Nagar Palika Jind v. Jagat Singh (1995) 3 SCC 426. 152
Puran Singh and Ors. v. State of Punjab, (1975) 4 SCC 518. 153
Munshi Ram and Ors. v. Delhi Administration, (1968) 2 SCR 455.
534
Hence such interim injunctions are granted for maintaining the subject matter of
dispute. If, on the other hand, such interim injunction is declined, the property
stands the risk of disposal or alienation pending the lis. This may give rise to
multiplicity of proceedings and may also embroil an innocent purchaser into the
dispute. Such a situation is best avoided.
The point that needs to be underlined is the existence of a bona fide dispute over
title. There must be a genuine doubt over title of the property. If caution is not
exercised, and if the said interim injunction is granted for the mere asking, there
are chances that the judicial process is abused by land-grabbers. Such persons
would file bogus litigation and make a property “disputed property” to either
obtain a better commercial deal or to extort money.
Concerning property of which ownership is registered with the sub-registrar, there
is not much difficulty. In such cases, the registered documents would show
whether the claimant has ownership rights over the property or not. Registration in
those cases has been held to be mandatory. Under Section 54 of the Transfer of
Property Act, 1882 and Section 17 (1) of the Registration Act, 1908, sale of
immovable property can be effected only through registered instruments. Where
there is no registered document by which the title could have been transferred in
favour of the plaintiff, the plaintiff cannot claim to have become the owner of the
suit property. In this behalf, it is pertinent to refer to the case of Suraj Lamp &
Industries (P) Ltd. v. State of Haryana154. In that case, referring to mode of transfer
of title in immovable property through documents comprising of general power of
attorney, agreement to sell, affidavit, receipt and will, similar to those in the
present case, the Hon'ble Supreme Court held as under :
“Such transactions were obviously irregular and illegal being contrary to the rules
and terms of allotment. Further, in the absence of a registered deed of conveyance,
no right, title or interest in an immovable property could be transferred to the
purchaser”.
There may be more complex suits concerning property which is not registered,
either because it relates to agricultural land covered by the land reforms law or
may fall in abadi area or because the property is unauthorized. In cases where
154 2009 (7) S.C.C. 363.
535
property is unauthorized or is situated in an unauthorized colony, even if the
vendor is willing to register the sale and to pay stamp duty, he is not permitted to
do so by the sub-registrar. In that eventuality, the vendee claims that the failure to
register the transaction is not attributable to his fault and therefore his ownership
over the property cannot be questioned on the ground that transaction has not been
registered. In such cases, the vendee does not possess any registered document. He
establishes his ownership by showing that he has made payment of sale
consideration.
There may be even a different category of cases where a person not being the
registered owner of the property claims a share therein by virtue of the fact that he
has made payment of partial sale consideration. There is judicial cleavage on how
this plea is to be dealt with and whether payment of part of sale consideration
confers any ownership right in the property.
One view is that mere payment of partial sale consideration does not secure any
right or share in the property. Even if it is assumed that property was in fact
purchased by the claimant by making payment of entire sale consideration,
ownership vests only in the name of the person who is so registered. The
transaction of purchase of property by the claimant in somebody else's name would
qualify as a “benami transaction” as defined in Section 2 (a) of the Benami
Transactions (Prohibition) Act, 1988. As such, by operation of Section 4 of the
said Act, no suit or other action to enforce the rights in the property would lie on
behalf of actual payer. Regard must also be had to the fact that as per the
documents, property has been purchased only by the person whose name is
recorded as the vendee. Oral evidence to controvert this fact is not admissible as
per Section 92 of the Evidence Act, 1872. Even if it is assumed that payment of
purchase price was made by the claimant, that can, at best and in the absence of
any other evidence, imply that the said payment was made as gift to the registered
owner. Even if this is so, it would not indicate that claimant has acquired a right in
the property. After the gift, the claimant ceases to have any proprietary interest
over the immovable property.
In the case of Rama Kanta Jain vs. M.S. Jain155, the plaintiff had filed a suit for
recovery of possession of immovable property on the ground that the defendant 155 AIR 1999 Delhi 281.
536
was a licensee whose license had been revoked. The defendant raised a plea that he
had contributed to the purchase of the property by making payment of part of the
sale consideration and that only the name of the plaintiff had been utilized for the
purchase. Repelling this contention, the Hon'ble High Court of Delhi held that the
defendant cannot be allowed to lay claim over the property.
The contrary view is that there may be circumstances when the property is
purchased by one in the name of another and such transaction would not ipso facto
be barred by Section 4 of the Benami Transactions (Prohibition) Act, 1988. The
said Act prohibits claim over ownership of the property. One cannot claim title
over the property merely on the ground that he has made payment for it if the
property has been purchased in the name of somebody else. However, not every
transaction entered into in favour of a family member is prohibited by law.
Whether a transaction is benami or not depends on the circumstances in which the
transactions is entered into and the intention of the person who contributes to the
transaction. In the case of Thakur Bhim Singh (Dead) By LRs and Another v.
Thakur Kan Singh156, the Hon'ble Supreme Court held as under :
“The principle governing the determination of the question whether a transfer is a
benami transaction or not may be summed up thus : (1) the burden of showing that
a transfer is a benami transaction lies on the person who asserts that it is such a
transaction; (2) it is proved that the purchase money came from a person other
than the person in whose favour the property is transferred, the purchase is prima
facie assumed to be for the benefit of the person who supplied the purchase money,
unless there is evidence to the contrary; (3) the true character of the transaction is
governed by the intention of the person who has contributed the purchase money
and (4) the question as to what his intention was has to be decided on the basis of
the surrounding circumstances, the relationship of the parties, the motives
governing their action in bringing about the transaction and their subsequent
conduct, etc”.
Similar observations were made by Hon'ble High Court of Delhi in the case of
Swarn Kumari v. Mrs. Santosh Sandhu157, and by the Hon'ble Patna High Court in
156 (1980)3 SCC 72. 157 1991(2) R.R.R. 361.
537
the case of Mridula Singh v. Brahmdeo Pd. Singh158.
Hence, the key to evaluating the validity of a transaction is to understand the
motive and intent of the parties as prevailing on the date of the transaction.
Whenever such a plea is raised, the Court ought to examine at the very outset
whether there is any evidence adduced by the claimant to establish that the
payment of the sale consideration for the property was made by him. It may be
seen whether any document has been placed on record to establish such transfer of
funds from the claimant to the vendor.
There may also be cases which claimants seek a share in the property on the basis
of family settlement and pray for injunction to restrain breach of the settlement. In
this behalf some aspects need to be noted. The onus to prove the existence of a
family settlement is on the person who alleges its existence. He must adduce
evidence to support the plea. Ordinarily, there ought to be documents in which the
alleged family settlement was reduced into writing. A document which is prepared
while bringing about the family settlement is compulsorily registrable. However, a
document which is a mere memorandum of a family settlement which has already
been arrived at in the past is not mandatory to be registered. In case no written
document whatsoever has been prepared, oral evidence needs to be led to prove the
family settlement. The occupation of members of the family of different portions is
one of the circumstances which points towards existence of a family settlement and
may be used for the purpose of corroboration.
Property that can be divided between family members by way of a settlement is
only joint family property wherein all the beneficiaries have a pre-existing share by
virtue of being members of the family. Unless one has a pre-existing right over the
property, the property cannot be distributed or partitioned by way of family
settlement. Such a measure, if any, would, at best, amount to a gift and would be
compulsorily registrable under Section 17 of the Registration Act, 1908 and
Section 123 of the Transfer of Property Act, 1882. In the case of R.N. Dawar vs.
Ganga Saran Dhama159, the Hon'ble High Court of Delhi held that an immovable
property can be gifted only by way of registered documents. An oral gift of
158 AIR 2006 Pat 27. 159 AIR 1993 Delhi 19.
538
immovable property cannot be made in light of Section 123 of the Transfer of
Property Act.
There are also suits for injunction which are pending between co-owners or co-
sharers of immovable property. In such suits, prayers are made for restraining the
co-owner from creating third party interest in the jointly owned property. The
principles governing co-ownership need to be put into perspective. A co-sharer is
deemed to be in possession of the entire suit property alongwith other co-sharers.
None of them can restrain the other co-sharer from occupying part of the property.
To be able to do that, one must obtain partition of the suit property by metes and
bounds. Till partition takes place, all co-owners are owners of the entire estate.
In the case of Karam Singh v. Nathu Singh160, it was observed by High Court of
Delhi thus:
“A co-owner has not in law any right to appropriate land to himself out of a joint
land against the consent of his co-owner. As observed in Prabhoo v. Soodh Nath,
AIR 1978 Allahabad 178: "Highhanded action by one co-owner cannot be
encouraged by courts of law."”
In the case of Ranjit Singh v. Sopan Properties Pvt. Ltd.161, it was held by High
Court of Delhi as under:
“A co-owner has an interest in the whole property and also in every parcel of it
and possession of the joint property by one co-owner is in the eye of law
possession of all even if all but one are actually out of possession.”
Transfer of rights in such jointly owned property is also not prohibited by law. A
co-owner can sell his undivided portion in the suit property and the purchaser
simply steps into the shoes of the said seller.
In the case of Maharu V. Dhansai162 the High Court of Madhya Pradesh held that
undivided interest in coparcenary property can be sold. In such an event, “the
purchaser only steps into the shoes of the transferor and is invested with till the
rights and is subject to all the disabilities of the transferor. He at best, is entitled
160 1994(3) R.R.R. 704. 161 2001(4) RCR (Civil) 107. 162 AIR 1992 MP 220.
539
to only joint possession with the non-alienating co-owners and if resisted he may
recover joint possession by a suit. He is, in fact, only bound by the arrangements,
if any, as to exclusive possession by different co- owners entered into, before he
acquired the interest in the joint property.''
In the case of K. S Krishan Vs. Krishnan163 the Kerala High Court held as under:-
“Each of the co-sharers is entitled to possession and enjoyment of the whole
property alongwith others. He has an equal right to the possession of every part
and parcel of the property. It may be that their interests are unequal but still
they have got unity of possession and each of the co- sharers can transfer his
share and the transferee becomes a co-sharer along with others. In view of S.
44 Transfer of Property Act transferee can also enforce partition of his rights
but subject to the conditions and liabilities affecting at the date of the transfer.”
In the case of Lalita James Vs. Ajit Kumar164 it has been held that a transferee of
co-ownership rights is entitled to joint possession and common enjoyment of the
property but not exclusive possession.
In the case of Ram Dass and another Vs. Shisha Singh and others165 the Punjab
and Haryana High Court held that an agreement to sell land executed by a co-
sharer is enforceable against the other co-sharers and that the latter have no right
to object to the same. It was observed as under :-
“No law prohibits a co-sharer from alienating his share in the joint property. Any
alienation so made by a co-sharer is always subject to the partition and rights of
other co-shares. The vendees simply step into the shoes of the vendor -co-sharers
and will acquire status of a co-sharer and all their rights to the extent of the land
purchased will remain subject to the partition and rights of other co-shares.
Therefore, the agreement to sell cannot be said to be illegal or bad per se merely
because the other co-sharers did not joint in the transaction of proposed sale”.
In the case of immovable property jointly owned, each co-sharer is, in theory
interested in every infinitesimal portion of the subject matter, and each has the
163 AIR 1993 Kerala 134. 164 AIR 1991 MP 15. 165 AIR 2007 P & H 200.
540
right, irrespective of the quantity of his interest, to be in possession of every part
and parcel of the property jointly with the other.166 It does not follow that every use
of joint property by one co-owner renders him liable to an action for accounts to
the other, when the use is perfectly legitimate and does not constitute an invasion
of the rights of the co-sharer.167 In the case of agricultural land, one co-owner is
not allowed the relief of permanent injunction against his co-owners even if he has
been in exclusive possession of that land for a very long time.168
As long as joint property is used consistently with the attributes of joint ownership
and possession, without exclusion of the joint owners, who do not join in the work
there is no encroachment on the rights of any of them as regards common
enjoyment, so as to give ground for a suit.169 The Courts should be very cautious of
interfering with the enjoyment of joint estates as between their co-owners, though
they will do so in a proper case.170 Where the plaintiff's right as a joint owner is
denied by the defendant who treats the joint property as his own exclusively, the
plaintiff is entitled to ask for an injunction to prevent the defendant from
interfering with his right.171 With respect to joint property the relief by injunction
should be confined to acts of waste, illegitimate use of the family property or acts
amounting to ouster.172
In granting or withholding an injunction, a Court should exercise a sound
discretion and should weigh the amount of substantial mischief done or threatened
to the plaintiff, and compare it with that which the injunction, if granted, would
inflict upon the defendant. There is no broad proposition that one co-owner is
entitled to an injunction restraining another co-owner from exceeding his rights,
absolutely, and without reference to the amount of damages to be sustained by one
side or the other from the granting or withholding of the injunction.173
Once it is established by the plaintiff that he is in exclusive possession and it is
admitted by the defendant that he is in such possession, an injunction restraining
the defendant from dispossessing the plaintiff must be issued as a matter of 166 Anand and Iyer, The Specific Relief Act, 1963, Delhi Law House, 11th Edn. 2004. 167
Per Mookerjee, J in Mohesh v. Nowbut 1 CLJ 437. 168
Debaki Gouduni v. Bhagavati Gouda 1996 AIHC 490, 493. 169 Krishna v. Gilbert (1919) ILR 42 Mad 654. 170
Per Lord Hobhouse in Lachmeswar v. Manowar LR 19 IA 48. 171
Jagdeo v. Prasad 1965 All LJ 122. 172
Anant Ramrav v. Gopal ILR 19 Bom 269. 173
Shamnuggar Jute Factory & Co. v. Ram Narain ILR 14 Cal 189.
541
course.174 The proposition of law that no injunction can be granted against the
owner is true only to the extent that no absolute injunction can be granted.
However, a limited injunction that the true owner will not dispossess even a
trespasser, whose possession is found to be well established, except by the due
process of law, can be granted.175 Before a Court will, in the case of co-sharers,
make an order directing that a portion of the joint property alleged to have been
dealt with by one of the co-sharers without the consent of the others should be
restored to its former condition, a plaintiff must show that he has sustained, by the
act he complains of, some injury which materially affects his position.176 One of
the several co-sharers is not entitled to erect a building upon joint property without
the consent of other joint owners, even though the erection of such building may
cause no direct loss to the shares of the joint owners.177 Co-sharers who are in
possession of their shares are not entitled to a decree directing demolition of
structures of land belonging to all of them, unless the other co-sharers join them in
asking for this relief.178 An injunction cannot be granted to a co-owner to prevent
the carrying out of a necessary work by another co-owner upon common
property.179
A co-owner of immovable property can maintain a suit for injunction against
intending trespassers without joining other co-owners as parties, if he was in actual
possession when the trespass was threatened.180 In an action for trespass, waste or
damage the plaintiff is not required to allege malice or to prove its existence. He is
only to prove that he was in possession of the property and that the defendant
disturbed the possession.181
When one co-sharer transferred his undivided share in the joint family house to a
stranger, the other co-sharer is entitled to restrain the stranger by injunction from
exercising his right as a co-sharer till he is able to get the property divided by filing
a suit for partition.182 The provisions of Section 44 of the Transfer of Property Act
disentitle a stranger transferee from bringing a suit for obtaining joint possession of
174
Ramshree Mhavir v. Girdharilal Bholanath Agarwal (1970) 11 Guj 971. 175
Harbans Singh v. Tahal Singh 1982 LLR 472 (Punj). 176
Joy Chunder v. Bippro Churn, 14 Cal 236. 177
Ram Bahadur v. Ram Shanker ILR 27 All 688 (FB). 178
Tabrij v. Kedar, 62 IC 773 (Cal.) 179
Kuttayan v. Mammanna Ravuthan ILR 35 Mad 681. 180
Mani Ram Marwari v. Tithu Pandey AIR 1923 Bom 171. 181
Basamma v. Pirappa AIR 1982 Kant. 9. 182
Paresh Nath Biswas v. Kamal Krishna Choudhry AIR 1958 Cal 614.
542
a homestead. In such a case, a suit for permanently restraining the transferee from
taking possession of the property is misconceived and is not maintainable.183
7.9.1.3 Transfer of Property
A mandatory injunction may be granted directing re-transfer of property which had
been transferred in deliberate violation of a contract under a conspiracy to break
the contract. The injunction may be granted against a person not a party to the
contract but who had procured or induced the breach of it.184 When the defendant
is only a licensee in possession of the house, the owner can get him evicted by
asking for the relief of mandatory injunction.185 In respect of an agreement to give
lease of a cinema theatre, it was held that the proposed lessee cannot restrain
execution of lease in favour of anybody else unless he seeks specific performance
of the agreement.186 If a licensee does not surrender possession of the property
after the termination of the license, the licensor is entitled to claim the relief of
possession under a suit framed as one for mandatory injunction directing the
licensee to vacate the premises.187 When the owner of the property claims
exclusive right over the property and seeks ouster of the other persons who are in
joint enjoyment as licencees, the proper relief under such circumstances could be
ejectment or mandatory injunction directing the defendants to leave the house.188
The respondent having defaulted in payment of monthly subscription as per terms
of the agreement, it was held that balance of convenience did not lie in its favour
and mandatory injunction cannot be issued directing transmission of channels. The
subsequent default on the part of the respondent showed that he was a chronic
defaulter and was not entitled to any relief.189 A suit for injunction questioning the
validity of order passed under a statute is entertainable if the order is a nullity in
the eyes of law or there is a jurisdictional error in exercise of the power by the
authority under the statute or that the order impugned was outside the purview of
the statute.190
When the property belonged to the Calcutta Port Trust and they were master of 183
Jogendra Nath Mondal v. Adhar Chandra Mondal AIR 1951 Cal 412 184
Esso Petroleum Co.Ltd. v. Kingswood Motor Ltd. (1973) 2 All ER 1057. 185
Probirendra Nath Nandey v. Narendra Nath Nandey AIR 1958 Cal 179. 186
Jawahar Threatre (P) Ltd. v. Kasturibai AIR 1961 MP 102. 187
Sant Lal Jain v. Avtar Singh AIR 1985 SC 857. 188
Venkataswamy v. Narayana A 2002 (4) Kar LJ 377A. 189
Star India Private Ltd. v. Indus Ind. Media and Communications Ltd. AIR 2003 AP 473. 190
Deendayal v. RSEB 2000 (3) RLR 81.
543
their own property, the Court refused to pass mandatory injunction directing
Calcutta Port Trust to hand over possession of land to another company having no
connection with the original lessee.191 When the well jointly belonging to the
plaintiff and the defendant was deepened by the defendant to meet the scarcity of
water without removal of mud and stones heaped inside the well causing
obstruction to the flow of water the plaintiff was entitled to mandatory injunction
requiring the defendant to remove debris.192 Where the plaintiff had purchased a
part of the property belonging to the defendant but the right to approach that
property was through the portion of the land occupied by the tenant of the
defendant and the defendant for obtaining the written consent of the tenant agreed
to compensate him by giving a big piece of land from the suit land in lieu of land
which was required for way by the plaintiff, the denial of right to the plaintiff and
mandatory injunction on ground that there was no privity of contract between him
and the tenant held improper.193
7.9.1.4 Landlord and Tenant Disputes
In India, the subject of leases is governed by the provision of Chapter IX of the
Transfer of Property Act. A lease of immovable property has been defined by
section 105 of the Transfer of Property Act as a transfer of a right to enjoy such
property, made for a certain time, express of implied, or in perpetuity, in
consideration of a price paid or promised, or of money, a share of crops, service or
any other thing of value, to be rendered, periodically or on specific occasions, to
the transferor by the transferee, who accepts the transfer on such terms. The
transferor is called the lessor, the transferee is called the lessee; the price is called
the premium, and the money, share, service or other thing to be so rendered, is
called the rent.
Relations between landlords and tenants are also regulated by the rent control
legislation in various states, intended for the protection of tenants. The relation of a
lessor and a lessee is thus one of contract. Chapter IX of the Transferee of Property
Act governs the rights and liabilities of the lessor and the lessee respectively.
191
Board of Trustee of the Port of Calcutta v. Pearl Transport Co. Ltd. AIR 2004 Cal 122. 192
Lakshmana Kohar v. Namalwar Kohar AIR 2004 Mad 284. 193
Prithvi Singh v. Banshi Lal AIR 2004 Raj 100.
544
Section 106 of the Transfer of Property Act provides as follows:
106. Duration of certain leases in absence of written contract or local usage.- In the
absence of a contract or local law or usage to the contrary, a lease of an immovable
property for agricultural or manufacturing purposes shall be deemed to be a lease
from year to year, terminable, on the part of either lessor or lessee, by six months
notice expiring with the end of a year of the tenancy; and a lease of an immovable
property for any other purpose shall be deemed to be a lease from month to month,
terminable, on the part of either lessor or lessee, by fifteen days' notice expiring
with the end of a month of the tenancy.
Every notice under this section must be in writing signed by or on behalf of the
person giving it, and either be sent by post to the party who is intended to be bound
by it or be tendered or delivered personally to such party, or to one of his family or
servants, at his residence, or (if such tender of delivery is not practicable) affixed
to a conspicuous part of the property.
Section 107 of the Transfer of Property Act lays down as follows:
107. Leases how made.- A lease of an immovable property from year to year, or
for any term exceeding one year, or reserving a yearly rent, can be made only by a
registered instrument.
All other leases of immovable property may be made either by a registered
instrument, or by oral agreement accompanied by delivery of possession.
Where a lease of an immovable property is made by a registered instrument, such
instrument or, where there are more instruments than one, each such instrument
shall be executed both by the lessor and the lessee:
Provided that the state government may, from time to time, by a notification in the
official gazette, direct that leases of immovable property, other than leases from
year to year, or for any term exceeding one year, or reserving a yearly rent, or any
class of such leases, may be made by an unregistered instrument or by an oral
agreement, without delivery of possession.
By virtue of section 117 of the Transfer of Property Act, the provisions of Chapter
545
IX thereof, do not apply to leases for agricultural purposes, except insofar as the
(local) state government may, by a notification published in the official gazette,
declare all or any of such provisions to be so applicable. Such notification shall not
take effect until the expiry of six months from the date of its publication. The
legislature has abstained from making the sections of Chapter IX of the Transfer of
Property Act apply proprio vigore for the fear of interfering with the settled
usages.194 But in the absence of any local act or custom, or any special usage to the
contrary, the principles of English Law are applied to agricultural leases also.195
As a general rule, the relation of the parties is determined by the instrument of the
lease. When a document, though in form of an agreement to lease, finally
ascertains the terms of the lease, and gives the lessee a right of exclusive
possession either immediately or at a future date, the document is said to effect an
actual demise and to operate as a lease and whether it operates as a lease or as an
agreement to lease is a matter of construction and intention.196
The doctrine of part-performance is embodied in s 53A of the Transfer of Property
Act. There was also a provision in s 27A of the Specific Relief Act of 1877 which
has been omitted in Specific Relief Act 47 of 1963.
In the absence of a contract or local usage to the contrary,
(a) the lessor is bound to disclose to the lessee any material defect in the
property with reference to its intended use, of which the former is and the latter is
not aware, and which the latter could not with ordinary care discover;
(b) The lessor shall be deemed to contract with the lessee that, if the latter pays
the rent reserved by the lease and performs the contract binding on the lessee, he
may hold the property during the time limited by the lease without interruption.
The benefit of such contract shall be annexed to and go with the lessee's interest as 194 Krishna v Gilbert (1919) ILR 42 Mad 654, (1919) 50 IC 899. 195 Gangamma v Bhomnakka (1910) ILR 33 Mad 253; Vasudevan v Valia (1901) ILR 24 Mad
47(FB); Jangal Singh v Mukund Kumar AIR 1948 Pat 446; Narayana v Goculdas (1946) ILR Nag 568, AIR 1947 Nag 48; Tatya Savla Sundrak v Yashwanta 5 DLR (Bom) 246; Nanjappa v Rangaswami AIR 1940 Ma 410, (1940) 1 Mad LJ 200 51 LW 258, 1940 Mad Wn 266; Umar Pulavar v Davood 59 LW 520, (1946) 3 Mad LJ 229, AIR 1947 Mad 68, (1947) 231 IC 276, 1946 Mad WN 609; Brahmayya v Sundaramma (1941) ILR Mad 757, AIR 1943 Mad 275, 1948 Mad WN 77, 61 LW 93, (1948) 1 Mad LJ 96 (FB); Benoy Krishna v Biseswar (1948) ILR 1 Cal 520.
196 Swaminatha v Ramaswami AIR 1921 Mad 72, (1921) ILR 44 Mad 399, (1921) 62 IC 354; Ramjoo v Hardas (1925) ILR 52 Cal 595, (1925) 91 IC 320, AIR 1925 Cal 1087
546
such, and may be enforced by every person in whom that interest is, for the whole
or any part thereof from time to time, vested.197
In Rustome K Amuyan v Manu Subedar,198 it was held that an obligation
undertaken by the landlord of a tenant holding after the termination of the tenancy
is of a personal nature and does not have any connection with the tenancy as such.
It cannot, therefore, be enforced by an order of an injunction.
The following duties of the lessee are of utmost importance in defining the
relationship between lessor and lessee:
(a) If during the continuance of the lease, any accession is made to the
property, such accession (subject to the law relating to alluvion for the time being
in force) shall be deemed to be compromised in the lease.
(b) If by fire, tempest or flood or violence of any army or of a mob or other
irresistible force, any material part of the property be wholly destroyed or rendered
substantially and permanently unfit for the purposes for which it was let, the lease
shall, at the option of the lessee, be void. If the injury be occasioned by the
wrongful act or default of the lessee, he shall not be entitled to avail himself of the
benefit of this provision.199
(c) If the lessor neglects to make within a reasonable time after notice, any
repairs which he is bound to make to the property, the lessee may make the same
himself, and deduct the expense of such repairs with interest from the rent, or
otherwise recover it from the lessor.
(d) If the lessor neglects to make any payment which he is bound to make, and
which, if not made by him, is recoverable from the lessee or against the property,
the lessee may make such payment himself, and deduct it with interest from the
rent, or otherwise recover it from the lessor.
(e) The lessee may, even after the determination of the lease, remove, at any
197 Section 108 of Transfer of property Act. 198 (1970) 72 Bom LR 264. 199 Where the only effect of heavy rains is to damage the crops considerably, and the tenant has
not the benefit of the full yield, the case is outside the principle stated in s 108(e); Merla Suranna v Kokileti 1956 Andh WR 442.
547
time whilst he is in the possession of the property leased but not afterwards, all
things which he has attached to the earth, provided that he leaves the property in
the state in which he received it.
(f) When a lease of uncertain duration determines by any means except by a
fault of the lessee, he or his legal representative is entitled to all the crops planted
or sown by the lessee and growing upon the property when the lease determines,
and to free ingress and egress to gather and carry them.
(g) The lessee may transfer absolutely or by way of mortgage or sub-lease, the
whole or any part of his interest in the property, and any transferee of such interest
or part may again transfer it. The lessee shall not, by reason only of such transfer,
cease to be subject to any of the liabilities attaching to the lease. This however
shall not authorise a tenant having an untransferable right of occupancy, the farmer
of an estate in respect of which default has been made in paying revenues or the
lessee of an estate under the management of a court of wards, to assign his interest
as such tenant, farmer or lessee.
(h) The lessee is bound to disclose to the lessor any fact as to the nature or
extent of the interest which the lessee is about to take, of which the lessee is, and
the lessor is not aware, and which materially increases the value of such interest.
(i) The lessee is bound to pay or tender, at the proper time and place, the
premium or rent to the lessor or his agent in this behalf.
(j) The lessee is bound to keep, and on the termination of the lease to restore,
the property in as good a condition as it was at the time when he was put in his
possession, subject to only to the changes caused by reasonable wear and tear or
irresistible force, and to allow the lessor and his agents, at all reasonable time
during the term, to enter upon the property and inspect the condition thereof and
give or leave notice of defect in such condition; and, when such defect has been
caused by any act or default on the part of the lessee, his servants or agents, he is
bound to make it good within three months after such notice has been given or left.
(k) If the lessee becomes aware of any proceeding to recover the property or
any part thereof, or of any encroachment made upon, or any interference with, the
lessor's rights concerning such property, he is bound to give, with reasonable
548
diligence, notice thereof to the lessor.
(l) The lessee may use the property and its products (if any) as a person or
ordinary prudence would use them if they were his own; but he must not use, or
permit another to use, the property for a purpose other than that for which it was
leased, or fell or sell timber, pull down or damage buildings belonging to the
lessor, or work mines or quarries not open when the lease was granted, or commit
any other act which is destructive or permanently injurious thereto.
(m) The lessee must not, without the lessor's consent, erect on the property any
permanent structure, except for agricultural purposes.
(n) On the determination of the lease, the lessee is bound to put the lessor into
possession of the property.200
A plaintiff let out certain premises to the defendant. A lease deed was executed
which provided that the premises shall be used only for the purpose of residence
and shall not be used for commercial purpose. The plaintiff alleged that in
contravention of the terms contained in the lease deed, the defendant had started
using the premises for commercial purpose. The defendant denied the allegations
of the plaintiff and alleged that the premises were taken for residence-cum-
commercial purposes. It was held that the defendant had led no evidence to prove
that the premises in dispute were let out to her for commercial purposes.
Accordingly, a decree for a permanent injunction in favour of the plaintiff and
against the defendant was passed, restraining the defendant from using the
premises for commercial purposes.201
If the acts done by the tenant on the premises are forbidden by law, the landlord is
entitled to seek an injunction from the court restraining the tenant from doing those
acts, although the matter is yet to be tried and decided in the suit. In one case, even
though it was found that the landlords had permitted the tenant to manufacture and
repair furniture on the demised premises, it was of no consequence because even
the landlords were not entitled to give such a permission to use the premises in
contravention of the conditions of the sale. The trial court as well as the lower
appellate court, therefore, had proceeded wholly on an untenable basis and thus 200 Section 108, Transfer of Property Act. 201
Ved Kumari Suri v Asha Mehta (1979) 2 RCJ 116, 117, 118 (Del).
549
had acted illegally in the exercise of their jurisdiction in declining the ad interim
injunction.202
The remedy of eviction is not an alternative remedy to the relief of an injunction
restraining the tenant from misusing the premises, and both are independent
remedies which the landlord in the circumstances of the case has to resort to
because of the conditions of the sale.
Where a lessor seeks to evict a lessee contrary to the provision of law, the lessee is
entitled to restrain the lessor by an injunction, if the lessee is found to be in actual
possession of the leased property.203
Section 108 of the Transfer of Property Act sets out in a convenient form, the
implied covenants usually subsisting in a lease.204 As is said by Rankin CJ, all the
clauses are expressions of well-settled principles, familiar to the law of England.205
An express covenant is saved by this section, as it overrides an implied covenant,
i.e., covenants implied by section 108 of Transfer of Property Act. The lease
implies a covenant for title,206 but limited in duration to the interest of the lessor.207
Clause (b) of section 108 lays down the duty to give possession, which is implied
by the lessor's implied covenant for title. After possession is given, it is protected
by the covenant for quiet enjoyment in cl (c). Where there is a substantial
interruption-it need not be physical dispossession-to the quiet enjoyment of the
lessee, the lessee can plead that his obligation to pay the rent or the balance of the
rent due to the lessor, be held under suspension or must be held to have abated by
the reason of the conduct of the lessor.208
By granting a lease the lessor undertakes to put the lessee in possession and it
matters not whether the lessor has no possession himself. One who lets, agrees to
give possession and not merely the chance of law suit.209 An express covenant
202
Amarjit Kaur v MC Furniture (1979) 2 Rent CJ 432, 434, 435 (Punj). 203
Bholanath v Maharao Raja Sahib, Bundi State AIR 1984 All 60. 204 Secy of State v Venkayya (1917) ILR 40 Mad 910, (1916) 35 IC 254. 205
Indu Bhushan Chowdhary v Chowdhary Moozam Ali AIR 1929 Cal 272, (1929) 33 CWN 106, (1929) 117 IC 838.
206 Markhan v Paget [1908] 1 Ch 697; Narayan Ramchand v Gokuldas Bholadas (1946) ILR Nag
568, AIR 1947 Nag 48, 1946 Nag LJ 544. 207
Bayes & Co v Lloyd & Sons [1895] 2 Ch B 610 (CA). 208 B Ahmad Maracair v Muthuvalliappa Chettiar AIR 1961 Mad 28. 209 Wallis v Hands [1893] 2 Ch 75; Zamindar of Vizianagram v Suryanarayan (1902) ILR 25 Mad
550
excluding the implied covenant for quiet enjoyment will not relieve the lessor of
his duty to give possession.210 In Pramatha Nath v Jagannath,211 where a suit was
pending for the specific performance of an agreement to grant the lease of a certain
property to the plaintiff, the court granted a temporary injunction restraining the
defendant from granting a lease of the same property to any other person till the
disposal of the suit.
Clause (c) of section 108 of the Transfer of Property Act deals with the implied
covenant for quiet enjoyment. The English covenant for quiet enjoyment is almost
always an express covenant. This express covenant is either (a) restricted or
qualified; or (b) absolute and unqualified. Mukherjee J, explains this in these
terms:212
“This provision secures for the lessee the benefit of the unqualified covenant for
quiet enjoyment. A qualified covenant for quiet enjoyment protects the lessee
against the interruption by the lessor, his heirs and assigns, or any other person
claiming by or under him, them or any of them, whereas an unqualified covenant
protects the lessee against interruption by the lessor, his heirs and assigns or by any
other person or persons whomsoever. The covenant, in an unqualified form,
covers the cases of interruption by the superior landlord or other persons claiming
by title paramount, exercising a power of re-entry, or otherwise dispossessing the
lessee.”
The distinction is that the restricted covenant does not cover an eviction by a title
paramount, while an absolute covenant does protect the lessee even from the title
paramount. The implied covenant under s 108(c), Transfer of Property Act, has
been held to be the unqualified covenant protecting the lessee from the title
paramount.213 The provisions of cl (c) of s 108, Transfer of Property Act, mean that
so long as the lessee fulfils his part of the contract, nothing will be done by the
lessor to disturb his quiet enjoyment. This also means that the title, which has been
587, 596; Secy of State v Venkayya (1917) ILR 40 Mad 910, (1916) 35 IC 254; Kandasami v Ramasami (1919) ILR 42 Mad 203, (1919) 51 IC 507; Abdul Karim v Upper India Bank (1917) 40 IC 684.
210 Ahmadar v Jaminiranjan AIR 1930 Cal 385, (1930) 125 IC 607. 211 (1913) 17 CLJ 427, (1912) 16 IC 359. 212 Noorang v Meik (1923) ILR 50 Cal 63, (1922) 70 IC 161, AIR 1923 Cal 41. 213 Motilal v Yar Mohammad (1925) ILR 47 All 63, (1925) 85 IC 756, AIR 1925 All 275; Tayawa
v Gurshidappa (1901) ILR 25 Bom 269; Ram v Paranatha (1922) 35 CLJ 146, AIR 1922 Rang 237, (1921) 63 IC 754; Indu Bhushan Chowdhary v Chowdhary Moazam Ali (1929) 33 CWN 106, AIR 1929 Cal 272, (1929) 117 IC 838; Dharma Narayan v Labhsingh ( 1921) 60 IC 477.
551
conveyed by the lessor to the lessee, is a good titles and there is no infirmity in it.
In other words, the lessor guarantees that he is the owner of the property himself
and no one else. If it is discovered later that his title is defective and in
consequence of this defect, the possession of the lessee has been disturbed, he is
liable for damages. But the disturbance must be a lawful disturbance, i.e., by a
person who has the real right or, in other words, a paramount right.
It is thus seen that the implied covenants subsisting in a lease are set out in Section
108 of Transfer of Property Act, 1881.214 The provision stipulates the rights and
liabilities of lessor and lessee and is an expression of well settled principles which
preceded the enactment.215 By granting a lease, a lessor undertakes to put the lessee
in possession alongwith ancillary rights. Inherent in this grant is the guarantee that
the lessor is the owner of the property and has the right to enter into the lease.216
The covenants contained in the lease, either expressly or by way of implication, are
enforceable by the equitable relief of injunction.217 Where a lease contains a
covenant that the lessor will not rent the adjoining premises for the same business,
an injunction was granted to enforce the covenant.218 A tenant having a permanent
lease and power to make excavations may still be restrained by injunction, at the
instance of the landlord, from making excavations of such a character as to cause
substantial damage to the property demised.219 Where a lease contained a term of
forfeiture of properties standing on the land after its expiry, it is not necessary in a
suit for ejectment after such expiry to pray for declaration of title to those
properties in order to enable the plaintiff to obtain an injunction.220 Where a tenant
sues the landlord to restrain him from evicting the former, an injunction can be
granted to a limited extent that the tenant should not be evicted or removed without
due process of law.221 A tenant induced by the landlord to spend money on repairs
to be reimbursed from the payment of rent can get an injunction restraining the
landlord from taking any steps to realise the arrears of rent deposited with the Rent
Controller pursuant to an application for eviction or from proceeding with the
214
Secretary of State v. Venkayya (1917) ILR 40 Mad 910. 215
Indu Bhushan v. Chaudhary Muzam Ali AIR 1929 Cal 272. 216
Moti Lal v. Yar Mohd. (1925) ILR 47 All. 63. 217
Abdul Rashid v. Bashir Ahmed AIR 1927 Mad 181. 218
Weldoff Co. v. Solemon 190 App. Div. 65. 219
State Bank of Bikaner & Jaipur v. Ballabh Das & Sons AIR 1984 Raj. 107. 220
Karnani Industrial Bank v. Province of Bengal AIR 1949 Cal 47. 221
Shakuntala v. Hira Nand AIR 1986 Del 27.
552
application.222 An injunction can be granted to the plaintiff landlord to prevent the
breach of an obligation existing in his favour under the tenancy when the defendant
tenant invades or threatens to invade the plaintiff's right by using the demised
premises in a way not consistent with the covenants of the lease or when he alters
the structure of the building by making excavation or unauthorised construction on
the leased premises.223 A tenant continuing to be in possession after termination of
lease is a “tenant by sufferance” and his possession is juridical. He is entitled to
injunction restraining landlord from interfering with his possession.224 When the
defendant was collecting, without any title, from the ryots of the plaintiff's estate,
two annas rent over and above the full sixteen annas in rupees, it was held that an
injunction could be granted to restrain him from doing so, and it was not necessary
to prove actual damage.225 In a suit by a mortgagee in possession for an injunction
restraining the mortgagor from realising rents, it was held that the plaintiff was
entitled to an injunction.226 The Court ordered for restoration of premises to the
tenant who was forcibly dispossessed by the landlord while the temporary
injunction granted by the trial Court was in force. It was held that the Court is not
powerless to see that wrong done to a party to order is remedied and the wrong
doer is made to set right the position. Court can restore possession of the tenant in
exercise of its inherent powers.227 Similarly, a lessor will be enjoying from
erecting a structure on the premises he has leased, in such a manner as to impair
the lessee's use of the demised property.228 Just as the tenant can seek the aid of
Courts to enforce the agreement, the landlord can also approach the Court for
issuance of an injunction to enforce his rights.229 The landlord is entitled to an
injunction directing that the property shall not be used for any purpose other than
that for which it was granted.230 Where a tenant obstructs construction work by the
landlord on a vacant terrace not included in the lease deed, an injunction will issue
to restrain the obstruction.231
222
Hakim Ram Saran v. Manik Chand AIR 1974 P&H 45. 223
Parmeshwari Das v. Bhola Nath AIR 1982 Del 77. 224
Mogilipuvyu Annaporniah v. Malampati Narasimha Rao AIR 1982 AP 253. 225
Nadir Juma v. Ram Chunder 1864 WR 362. 226
Sheo Nandan Prasad v. Sheo Prasad Pathak AIR 1942 Pat 349. 227
Sarjubai v. Manavbai 1986 MP RCJ 79. 228
Thungabai v. Heggavthi AIR 1975 Kant. 111. 229 Ram Rattan and Ors. v. State of Uttar Pradesh, (1977) 1 SCC 188. 230
Lal Sabu v. Deo Narain (1877) ILR 3 Cal 781. 231
National Insurance Co. v. Bhullar AIR 1992 P&H 86.
553
7.9.1.5 Unauthorized Construction
Often, suits for injunction are filed for restraining a person from carrying out
construction which is alleged to be unauthorized. The suits can be filed on the basis
of following averments:
a. That the construction is not in accordance with plans sanctioned by their
municipal authorities.
b. That no plan has been got sanctioned from the municipal authorities before
raising the construction.
c. That the land on which construction is proposed to be raised is public land or
belongs to the plaintiff or otherwise does not belong to the defendant.
d. That the proposed construction would interfere with easementary rights of the
plaintiff.
In Seema Arshad Zaheer & Ors vs. Municipal Corporation of Greater Mumbai232
the Municipal Corporation of Greater Mumbai issued seven show cause notices
under section 351 of the Municipal Corporation Act, 1888 to remove/pull down
seven unauthorized and illegal structures in the said premises (Moonim
Compound). The occupants of these seven structures filed seven suits in the City
Civil Court, Mumbai and obtained a temporary injunction restraining the
Corporation from taking action in pursuance of such notices. The seven appeals
filed by the Corporation against the said order of temporary injunction were
allowed by the Bombay High Court and the temporary injunction was vacated.
Petitions seeking special leave were filed against the order of the High Court. The
Hon’ble Supreme Court observed as under:
“The discretion of the court is exercised to grant a temporary injunction only when
the following requirements are made out by the plaintiff : (i) existence of a prima
facie case as pleaded, necessitating protection of plaintiff's rights by issue of a
temporary injunction; (ii) when the need for protection of plaintiff's rights is
compared with or weighed against the need for protection of defendant's rights or
likely infringement of defendant's rights, the balance of convenience tilting in
232 S.L.P (civil) 9479 of 2005.
554
favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to
plaintiff if the temporary injunction is not granted. In addition, temporary
injunction being an equitable relief, the discretion to grant such relief will be
exercised only when the plaintiff's conduct is free from blame and he approaches
the court with clean hands.”
The Hon’ble Apex Court further observed as follows:
“It is true that in cases relating to orders for demolition of buildings, irreparable
loss may occur if the structure is demolished even before trial, and an opportunity
should be granted to establish by evidence that the structure was authorized and
not illegal. In such cases, where prima facie case is made out, the balance of
convenience automatically tilts in favour of plaintiff and a temporary injunction
will be issued to preserve status quo. But where the plaintiffs do not make out a
prima facie case for grant of an injunction and the documents produced clearly
show that the structures are unauthorized, the court may not grant a temporary
injunction merely on the ground of sympathy or hardship. To grant a temporary
injunction, where the structure is clearly unauthorized and the final order passed
by the Commissioner of the Corporation after considering the entire material
directing demolition, is not shown to suffer from any infirmity, would be to
encourage and perpetuate an illegality.”
In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu,233 the Supreme Court
categorically observed as follows:
“This Court in numerous decisions has held that no consideration should be shown
to the builder or any other person where construction is unauthorized. This dicta is
now almost bordering the rule of law. Stress was laid by the appellant and the
prospective allottees of the shops to exercise judicial discretion in moulding the
relief. Such a discretion cannot be exercised which encourages illegality or
perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be
compounded, has to be demolished. There is no way out. Judicial discretion cannot
be guided by expediency. Courts are not free from statutory fetters. Justice is to be
rendered in accordance with law. Judges are not entitled to exercise discretion
wearing the robes of judicial discretion and pass orders based solely on their
233 1999 (6) SCC 464.
555
personal predilections and peculiar dispositions. Judicial discretion wherever it is
requires to be exercised has to be in accordance with law and set legal principles."
Some suits are also filed by plaintiffs for restraining the defendant from
obstructing or interfering with the construction which they propose to carry out. If,
however, while the suit is pending and as an interim measure, the plaintiff is
permitted to carry out construction over the suit property, that would, instead of
preserving status quo, disturb the status as existing on the date of institution of the
suit. It is settled law that injunction can be granted only to preserve status quo and
not to create a state of affairs other than that existing on the date of institution of
the suit. Proceeding with construction would create such a state of affairs. In this
behalf, reference may be made to the case of Dorab Cawasji Warden v. Coomi
Sorab Warden and Ors.234, wherein the Hon'ble Supreme Court held that interim
injunction must be granted to restore status quo and is not granted to establish a
new state of things.
Moreover, if such a plaintiff is permitted to carry out construction by way of
interim relief, it would amount to decreeing the suit itself and nothing would
remain to be adjudicated. It is settled law that at the stage of interim relief, final
relief itself should not be granted.
In the case of Ashok Kumar Bajpai v. Dr.(Smt.) Ranjana Bajpai235, the Hon'ble
Allahabad High Court, relying upon a large number of decisions of the Hon'ble
Supreme Court, concluded thus:
“The Hon'ble Apex Court consistently has been emphasizing that the Court while
dealing with the case at an interim stage cannot grant a relief which amounts to
final relief”.
In the case of Metro Marins and Another v. Bonus Watch Co. (P) Ltd. & Ors236,
the Hon'ble Supreme Court deprecated the practice of issuing interim injunctions
which have the effect of decreeing the suit before trial.
7.9.2 ENVIRONMENT
234 1990(2) S.C.C. 117. 235 AIR 2004 All 107. 236 AIR 2005 SC 1444.
556
Right to a clean environment has been recognized to be a fundamental right within
the purview of Article 21 of the Constitution.237 This includes the right to clean air
and water devoid of pollution.238 These rights are provided for under the
Constitution as well as special statutes and therefore can be enforced by way of
writs and also through the remedies provided under the respective statute. Article
32 and 226 of the Constitution entitle a person to file a writ petition for the
enforcement of the abovesaid rights. Appropriate directions can also be passed by
the Government and Pollution Control Boards under the Environment (Protection)
Act, 1986, Water (Prevention and Control of Pollution) Act, 1974 and the Air
(Prevention and Control of Pollution) Act, 1981.
The right to clean environment has been recognized as a fundamental right under
the expanded connotation of “right to life” as propounded by the Supreme Court.239
The Apex Court has relaxed the strict rule of locus-standi so as to entitle any
person having “sufficient interest” to file a writ petition.240 This opened a new era
for the development of public interest litigation, which could be invoked by public
spirited individuals and organizations including Non-Governmental Organizations.
It is this jurisdiction which is responsible for the evolution of environmental
jurisprudence in India and for providing impetus to a human rights approach.
Under this jurisdiction, the Supreme Court as well as High Courts have issued
various guidelines, orders and writs which are in the nature of an injunction. It was
thus ordered that municipalities shall construct proper drainage system for
maintenance of health and preservation of sanitation.241 Noxious factories were
closed and industries were removed from residential areas.242 Where pouring was
threatening the stability of ecological balance, the activity was directed to be
stopped.243 Stone crushing units were directed to be removed from urban cities.244
In order to prevent pollution of river water, use of primary treatment plant by
tanneries and other riparian industries was made compulsory.245 Construction was
237
M.C. Mehta v. State AIR 1992 Ori. 255. 238
Ratlam Municipality v. Vardhichand AIR 1980 SC 1622. 239
Maneka Gandhi v. Union of India AIR 1978 SC 597. 240
Sunil Batra, Prem Shanker, Bandhwa, S.P. Gupta. 241
L.K. Koolwal v. State AIR 1988 Raj 2. 242
V. Lakhmipathy v. State AIR 1992 Kant. 57, M.C. Mehta v. Union of India AIR 1987 SC 982. 243
R.L. & E Kendra, Dehradun v. State of UP AIR 1985 SC 652, Kinkri Devi v. State AIR 1988 HP 4, ARC Cement Ltd. v. State of UP 1993 Supp. (1) SC 426.
244 M.C. Mehta v. Union of India (1992) 3 SCC 256, Surendra Kumar Singh v. State of Bihar AIR
1991 SC 1942, Ishwar Singh v. State of Haryana AIR 1996 P&H 30 . 245
M.C. Mehta v. Union of India AIR 1988 SC 1037, Vellore Citizen's Welfare Forum v. Union of
557
restrained at the site earmarked for use as public park.246 Areas were identified as
no hawking zones.247 In the aforesaid cases, the Supreme Court liberally granted
mandatory and perpetual injunction so as to preserve environment. It has been
repeatedly noted that Courts have to be extra-cautious and careful in passing
injunction orders in matters involving public interest such as environment and
ecology.248
Therefore it can be stated that in India environmental issues have been dealt rather
proactively. Even though several issues remain to be resolved, the judiciary has
taken cognisance of several hazardous threats to the environment. The
Environment (Protection) Act 1986 (EPA) for instance is considered to be a
watershed. The law generated a plethora of rules and regulations, and facilitated
delegation of powers of the Central Government to the various agencies for Centre
and state. Procedural strategies for environmental decision-making process such as
environmental impact assessment (EIA) and public hearing were evolved under the
delegated power of making regulations. The EPA defines environment as one
which 'includes water, air and land and the inter-relationship which exists among
and between water, air and land, and human beings, other living creatures, plants,
micro-organisms and property. This is an inclusive definition of environment.
7.9.2.1 PRINCIPLES UNDERLYING INJUNCTION FOR ENVIRONMENTAL PROTECTION
7.9.2.1.1 Public Nuisance
The law of easement guarantees to the owner of a land, beneficial enjoyment
thererof free from air, water or noise pollution.249 This law enables an aggrieved
individual to challenge any act of pollution250 by moving a court under the
India (1996) 5 SCC 647 and Ambuga Petrochemicals Ltd. v. A.P. Pollution Control Board AIR 1997 AP 41.
246 Bangalore Medical Trust v. B.S. Mudappa AIR 1991 SC 1902, D.D. Vyas v. Ghaziabad
Development Authority AIR 1993 All 57, Nizam v. Jaipur Development Authority AIR 1994 Raj 87, Virender Gaur v. State of Haryana (1995) 2 Scc 577 and Dr. G.N. Khajuria v. Delhi Development Authority (1995) 5 SCC 762.
247 Bombay Hawkers' Union v. Bombay Municipal Council AIR 1985 SC 1206, Delhi Municipal
Council v. Gurnam Kaur AIR 1989 SC 38, Sodan Singh v. New Delhi Municipal Committee
AIR 1989 SC 1988 and Ramesh Chander v. Imtiaz Khan (1998) 4 SCC 760. 248
Suresh Chandra v. State of Rajasthan 1995 AIHC 2635 (Raj.) 249 The Indian Easement Act 1882, s 7 illusts (b) p 102; see also ch1. 250 Gubiram v Uday Chandra AIR 1963 Pat 455; Kailash Chand v Gudi AIR 1990 HP 17.
558
provisions of Code of Civil Procedure 1908 (CPC)251. In all cases where
environmental assaults amount to private nuisance, this provision can be invoked.
The court can give different kinds of remedies252.
Only when the harm is of such a nature, that it affects a lot of people, does it attain
the character of public nuisance, but the extent of harm may not be ascertainable.
Nor will it be easy for the court to quantify the damages and apportion them. The
court may also find the problem of standing as a hurdle. To overcome such crisis,
there are techniques tailored into our legal system. One method is found in CPC253,
under which the Advocate General, or with the leave254 of the court, two or more
persons, can institute a suit, irrespective of whether special damage is caused to
such persons. A suit may be filed in case of a public nuisance or other wrongful
acts affecting or likely to affect the public255. The remedy may be either a
declaration, or injunction, or any other relief as may be appropriate in the
circumstances of the case.
In the year 2004, the provision in CPC for suing for public attracted the attention
of the Madras High Court in Perumal Naicker v Rathina Naicker256. According to
the court, the provision deals with 'public nuisance', which is the combination of
civil and criminal characters. There could be both civil action and criminal
prosecution. 'Nuisance' is an obstruction, risk or injury caused to any person. If the
same is caused in a public place it becomes 'public nuisance'. The facts of the case
show that while constructing a building, the defendant encroached upon the
common pathway. The lower courts found that there was in existence a pathway,
which the defendant had encroached. The high court issued mandatory injunction
to the defendant to remove obstruction on pathway. The nuisance action envisaged
under s 91 of CPC does not prevent an individual, personally affected, to file suit
for declaration or injunction merely because the nuisance also affects the public 251 Code of Civil Procedure 1908, s 9. This provision empowers the court to try suits of civil
nature and reads: 'The court shall... have jurisdiction to try all suits of a civil natue excepting suits of which their cognizance is either expressly or impliedly barred'.
252 Relief in the form of damages, injunction, interim orders, declaration and decree. 253 Code of Civil Procedure 1908, s 91. 254 Ibid. Earlier, it was with the leave of the Advocate General. However, if the members of a class
suffer some special damage, the action is maintainable even without the consent of the Advocate General (See Faguirchand v Sooraj Singh AIR 1949 All 467). The 1976 amdndment to Code of Civil Procedure 1908, made it possible for two or more persons to sue with the consent of the court, instead of the court, instead of that of the Advocate General.
255 Ibid. The provision is not extended to wrongful acts other than public nuisance affecting or likely to affect the public.
256 AIR 2004 Mad 492.
559
from freely making use of the path for reaching important places such as school,
river and graveyard257.
The provision is section 91 of CPC is a reservoir for class action258 against
environmental violations. However, it is not widely used. It is necessary to develop
this remedy as a potent weapon against ecological maladies that spring up in the
form of public nuisance. The procedure laid down in CPC is to be followed when a
representative suit is filed; notice by personal service or by advertisement is to be
given. The court has discretion to allow impleading a parry. The decree will be
binding on all parties on whose behalf or for whose benefit the suit is instituted. It
is enough that the persons, who sue, have the same interest in the suit. It is not
necessary to establish that such persons have the same cause of action as the
persons on whose behalf or for whose benefit they sue.
7.9.2.1.2 Absolute Liability
The right to compensation in cases pertaining to environmental has been
essentially linked to strict liability as laid down in Rylands v Fletcher. Post the
Bhopal gas leak tragedy, the Indian Supreme Court found the Strict Liability rule
incapable of dealing with situations where the people do not have the resources to
fight a case against a powerful industrial company. In the Delhi gas leak case,
therefore, the Supreme Court enunciated a new policy of “absolute liability” for a
hazardous and inherently dangerous industry to pay compensation. The new rule of
absolute liability developed by the court was elaborated upon in the following
manner:
“The enterprise must be held to be under an obligation to provide that the
hazardous or inherently dangerous activity in which it is engaged must be
conducted with the highest standards of safety and if any harm results on account
of such activity, the enterprise must be absolutely liable to compensate for such
harm, and it should be no answer to the enterprise to say that it had taken all
reasonable care and that the harm occurred without any negligence on its part . . .
If the enterprise is permitted to carry on an hazardous or inherently dangerous
257 AIR 2004 Mad 492, pp 493, 494. 258 Code of Civil Procedure 1908, O 1, r 8 is an amplification of the concept of class action with
the permission of the court.
560
activity for its profit, the law must presume that such permission is conditional on
the enterprise absorbing the cost of any accident arising on account of such
hazardous or inherently dangerous activity as an appropriate item of its overheads.
Such hazardous or inherently dangerous activity for private profit can be tolerated
only on condition that the enterprise engaged in such hazardous or inherently
dangerous activity indemnifies all those who suffer on account of the carrying on
of such hazardous or inherently dangerous activity regardless of whether it is
carried on carefully or not. This principle is also sustainable on the ground that the
enterprise alone has the resource to discover and guard against hazards or dangers
and to provide warning against potential hazards.”
7.9.2.1.3 Sustainable Development
Sustainable development implies using ones resources in such efficient manner
that the present needs can be met while also conserving the resources for use by the
coming generations. This concept is based on the principle that ‘we haven't
inherited our environment from our forefathers but we have borrowed it from the
future generations’.
The Supreme Court is also of the opinion that some of the salient principles of
"Sustainable Development", as culled-out from Brundtland Report and other
international documents are Inter-Generational Equity, Use and Conservation of
Nature Resources, Environmental Protection, the Precautionary Principle, Polluter
Pays principle, Obligation to assist and cooperate, Eradication of Poverty and
Financial Assistance to the developing countries. The Apex Court further held the
view that "The Precautionary Principle" and "The Polluter Pays" principle are
essential features of "Sustainable Development". Both the principles have also
been applied while considering grant of injunctions.
7.9.2.1.4 The Precautionary Principle
The "Precautionary Principle" - in the context of the municipal law - means.259
(i) Environment measures - by the State Government and the statutory Authorities
must anticipate, prevent' and attack the causes of environmental degradation.
259 Vellore Citizens Welfare Forum vs Union Of India & Ors().
561
(ii) Where there are threats of serious and irreversible damage lack of scientific
certainly should not be used as the reason for postponing, measuresto prevent
environmental depredation.
(iii)The "Onus of proof" is on the actor or the developer/industrial to show that his
action is environmentally benign.
7.9.2.1.5 The Polluter Pays Principle
"The Polluter Pays" principle has been held to be a sound principle by the Apex
Court in Indian Council for Enviro-Legal Action vs. Union of India.260 The Court
observed, "We are of the opinion that any principle evolved in this 'behalf should
be simple practical and suited to the conditions obtaining in this country". The
Court ruled that "Once the activity carried on is hazardous or inherently dangerous,
the person carrying on such activity is liable to make good the loss caused to any
other person by his activity irrespective of the fact whether he took reasonable care
while carrying on his activity. The rule is premised upon the very nature of the
activity carried on". Consequently the polluting industries are "absolutely liable to
compensate for the harm caused by them to villagers in the affected area, to the
soil and to the underground water and hence, they are bound to take all necessary
measures to remove sludge and other pollutants lying in the affected areas". The
"Polluter Pays" principle as interpreted by this Court means that the absolute
liability for harm to the environment extends not only to compensate the victims of
pollution but also the cost of restoring the environmental degradation. Remediation
of the damaged environment is part of the process of "Sustainable Development"
and as such polluter is liable to pay the cost to the individual sufferers as well as
the cost of reversing the damaged ecology.
The precautionary principle and the polluter pays principle have been accepted as
part of the law of the land. Article 21 of the Constitution of India guarantees
protection of life and personal liberty.
7.9.2.2 Case Law
The case of M.C. Mehta v. Union of India & Others261, relates to pollution caused
by the trade effluents discharged by tanneries into Ganga river in Kanpur. The 260 J.T. 1996 (2) 196. 261 (1988) 1 SCC 471.
562
court called for the report of the Committee of experts and gave directions to save
the environment and ecology. It was held that "in Common Law the Municipal
Corporation can be restrained by an injunction in an action brought by a riparian
owner who has suffered on account of the pollution of the water in a river caused
by the Corporation by discharging into the river insufficiently treated sewage from
discharging such sewage into the river.
Further in A.P. Pollution Control Board II vs Prof .M.V. Nayudu (Retd.) and Ors., 262 it was stated that the Supreme Court was one of the first Courts to develop the
concept of right to 'healthy environment' as part of the right to "life" under Article
21 of our Constitution.263 This principle has now been adopted in various countries
today. In today's emerging jurisprudence, environmental rights which encompass a
group of collective rights are described as "third generation" rights. The "first
generation" rights are generally political rights such as those found in the
International Convention on Civil & Political Rights while "second generation"
rights are social and economic rights as found in the International Covenant on
Economic, Social and Cultural Rights.264 The right to sustainable development has
been declared by the UN General Assembly to be an inalienable human right.
In the case of Balco Employees Union (Regd.) vs Union of India & Ors.,265 the
Supreme Court held that no ex-parte relief by way of injunction or stay especially
with respect to public projects and schemes or economic policies or schemes
should be granted. It is only when the Court is satisfied for good and valid reasons,
that there will be irreparable and irretrievable damage can an injunction be issued
after hearing all the parties. Even then the Petitioner should be put on appropriate
terms such as providing an indemnity or an adequate undertaking to make good the
loss or damage in the event the PIL filed is dismissed.
7.9.3 INTELLECTUAL PROPERTY
The various forms of intellectual property and the practices of courts in grant of
injunction for protection of those rights are studied separately.
262 Appeal (civil) 368-371 of 1999 decided by Supreme Court on 1st December, 2000. 263 See Bandhua Mukti Morcha Vs. Union of India (1984(3) SCC 161). 264 John Lee, "Right to Healthy Environment", Columbia Journal of Environmental Law, Vol.25,
2000, p. 283. 265 W.P. (C) No. 194 of 2001 decided by Supreme Court on 10 December, 2001.
563
7.9.3.1 Patent
Patents drive business decisions related to technological innovation more than any
other form of intellectual property right. Trade marks facilitate brand recognition
but they are not designed to reward investment in the research and development of
the invention bearing the brand.266 Copyright encourages creativity by preventing
others from duplicating the expression of the copyright owner's ideas. However,
copyright neither protects inventive ideas nor prohibits others from independently
creating competing inventions.267 Trade secrets safeguard innovative know-how,
but those wanting to develop that know-how in non-competing secondary markets
may not know of the existence of the know-how, or ever be able to ever do so
since the owner is never obliged to release the information into the public
domain.268 These characteristics set patents apart from other intellectual property
rights and make patents critical both to success of the firms themselves, as well as
to the existence and growth of the industries to which these firms belong.269 At the
same time, corporate patent strategies can also smother both firm and industry.
A patent consists of a grant from the State of “the whole profit and advantage from
time to time accruing by reason of an invention”.270 It refers to the exclusive
privilege granted by the sovereign authority with regard to the invention. It protects
the producer or inventor against manufacture, production or sale without his
266
See Myra Hart and Howard Zaharoff, “The Protection of Intellectual Property in the United States” (2000) Harv. Bus. Sch. note 9-897-046, 11 (“A trademark is any word, name, symbol, phrase, design, or the like that is used to identify one's goods or services and to distinguish them from those of others.”).
267 See Hart and Zaharoff, “The Protection of Intellectual Property in the United States” (2000)
Harv. Bus. Sch. 9 (“Copyright protection does not extend to the ideas underlying the work, but only to the ‘fixed expression’ of it.”).
268 See Hart and Zaharoff, “The Protection of Intellectual Property in the United States” (2000)
Harv. Bus. Sch. 10 (“To qualify for protection, the owner of a trade secret must use reasonable efforts to maintain secrecy”); cf. Hart and Zaharoff, “The Protection of Intellectual Property in the United States” (2000) Harv. Bus. Sch. 2 (“Patent protection is limited to 20 years from the date of first application and, in exchange for the Patent monopoly, inventors must make their work publicly known. As a consequence, once the protection period has expired, the invention may be used and exploited by anyone.”). See also Merrill Matthews Jr and Tom Giovanetti, Why Intellectual Property is Important (Inst. for Pol'y Innovation, July 8, 2002), “Ideas”, p.1 (“Once a patent is granted, the information becomes public. Others can see what the inventor did and how he or she did it. They can't copy it, but they can learn from it and build on it.”).
269 See Hart and Zaharoff, “The Protection of Intellectual Property in the United States” (2000)
Harv. Bus. Sch. 8 (“Because of their strength and enforceability, patents are viewed as valuable assets by potential investors, and other strategic partners. They frequently make financing, mergers, acquisitions, or partnering proposals more attractive. In general, patents contribute to an individual inventor's prestige, enhance the professional reputation of a business, and protect shareholder value.”).
270 Clerk & Linson, Torts, 14th Edn., p. 1183.
564
consent. In the United States patents rights provide for the patent owner to exclude
others from using, selling, offering for sale or importing the invention into the
country.271 Ownership rights are created via patent laws over inventions, and this
in turn serves a role akin to a title deed to real estate. The ruling of the US Supreme
Court's in relatively recent case of eBay Inc v MercExchange has been regarded as
a ‘policy lever to dampen the risk of such hold-ups by raising the threshold that
plaintiffs need to cross before injunction are issued against defendants, even if they
are guilty of willful infringement’.272 The decision in the aforesaidcase creates new
challenges for the non-practising entities, which can face significant transactions
costs and asymmetric information problems in asserting or commercialising their
inventions. The decision further abolished a settled rule that a permanent
injunction will issue upon a finding of patent infringement liability without the
presence of exceptional circumstances. Therefore now onwards, a trial judge must
carry out an analysis, in equity, of the traditional four factors applied to requests
for injunctions in other cases.
In India, courts of equity frequently interfere to secure the rights of an inventor as
the inventor may be ruined for want of such protection.273 The principles upon
which an interlocutory injunction may be granted in a patent action are the same as
in any other action, namely, that the plaintiff should make out a prima facie case;
that the balance of convenience shall lie in his favour; that the plaintiff shall suffer
irreparable injury if injunction is not granted.274 Where the patent is an old one and
the patentee has been in long and undisturbed enjoyment, or the validity of the
patent has been established in some other jurisdiction or the conduct of the
defendant is such as enables the Court to say that, as against such a person, there is
no doubt about the validity of the patent, he would be restrained from committing
infringement pending the end of the trial.275 On an application by the inventor of a
271 See 35 USC s.271(a) (“Except as otherwise provided in this title, whoever
without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”).
272 eBay Inc v MercExchange, 126 S. Ct. 1837 (2006). The use of the term “policy levers” can be
attributed to the work of Pamela Samuelson and Suzanne Scotchmer. See Pamela Samuelson and Suzanne Scotchmer, “The Law and Economics of Reverse Engineering” (2002) 111 Yale L.J. 1575, 1581; see also Dan L. Burk and Mark A. Lemley, The Patent Crisis and How the
Courts Can Solve It (2009), p.191 (crediting Samuelson and Scotchner with creating the term). 273
Burma Oil v. Samsung (1924) 64 IC 534. 274
Plinton v. Spillar 4 Ch. D 286. 275
Cabot Co. v. Minnesota Mining & Mfg. Co. (1988) 91 FLR 142.
565
machine who complained that one of his licensees was going to bring to the market
a similar machine, the court granted an injunction against the possible infringement
because if no injunction were granted, the owner of the invention might have been
thrown out of business.276 In patent actions it may frequently happen that the
defendant is able to show that there are substantial grounds for disputing the
validity of the patent and that there are good reasons for believing that his
apparatus does not infringe the plaintiff's claim.277
The object of an interlocutory injunction is to protect the plaintiff against injury by
violation of his rights for which he cannot be adequately compensated in damages
recoverable in the action if he succeeds at the trial.278 The court must weigh one
need against another and determine where the balance of convenience lies.279 In
granting the injunction the court must be satisfied that the claim is not frivolous or
vexatious.280 Since the use of a patent may be licensed on a royalty basis it may be
possible to compensate the plaintiff in damages if he succeeds at the trial, if the
defendant is ordered to keep accounts and is in a financial position to pay damages.
In such a case, no interlocutory injunction may be granted.281
Various factors are taken into consideration in deciding balance of convenience,
such as whether the patent is a fresh or an old one, whether the defendant's trade is
a new one or is established since long and so on.282 If a patent is a new one,
challenging its validity may be sufficient for a refusal of injunction.283 If the patent
is sufficiently old and has been worked, the Court would, for the purpose of
temporary injunction presume the patent to be a valid one.284 Even if a likelihood
of infringement is established, interlocutory injunction will be refused if there is a
serious attack on the validity of the patent.285 The fact that the defendant has
applied for a compulsory license is no ground for refusing interlocutory injunction
in a case otherwise eligible for relief since the compulsory license when granted is
valid only from the date of grant. If there is clear evidence of willingness to accept
276
Fleming Fabrication v. Albion Cylinders (1989) RPC 47 CA. 277
Mayor v. Pens 1 J&H 87. 278 Kerr, Injunctions, 6th Edn. p. 320. 279
Irwin v. Don 4 Fish 359. 280
Lalubhai v. Chimanlal (1958) ILR 60 Bom. 261. 281
Sheriff v. Coutes 1 Russ and M 159. 282
National Research Dev. Corp. of India v. Delhi Cloth & General Mills Ltd. AIR 1980 Del.132. 283
Nalini Ranjan v. Bijoy Gopal (1948) ILR 1 Cal 512. 284
Bombay Aggarwal Company v. Ram Chand Diwan Chand AIR 1953 Nag 154. 285
May & Baker Company v. Boots Pure Drug Company (1947) 51 CWN 90.
566
a royalty payment the court may infer that damages would be adequate.
For the plaintiff to be entitled to perpetual injunction, he must establish the
existence of a valid patent and the factum of its infringement by the defendant. In
such an action, the Court must inquire as to what constitutes the essence of the
invention as claimed and as to whether the defendant has infringed the patent, by
taking the pith and marrow of the invention.286 An injunction may be granted after
the expiry of patent to restrain sale of articles manufactured during the period of
operation of the patent.287 An injunction will not be granted if the patent has
expired before the hearing itself.288 Delay on the part of the plaintiff in applying to
the court will be fatal for the grant of injunction.289 But delay will not be fatal if the
defendant had been warned sufficiently early. What is important is not so much the
length of the delay per se but whether the delay has in some way made it unjust to
grant the injunction claimed.290
7.9.3.2 Trade-Mark
A trade-mark means a mark used to denote that goods are the manufacture or
merchandise of a particular individual.291 It includes a label, ticket, name,
signature, word, letter, number or symbol.292 In virtually all cases relating to
trademark infringement, the plaintiff files an application for interlocutory
injunction i.e. an injunction restraining the defendant from using the offending
mark pending the trial of the suit or until further orders.293 If the matter is urgent
and serious, an ex-parte injunction for a short period may be obtained.294 If an
interlocutory injunction is obtained, in practically all cases, it operates as material
determination of rights.295 If the marks are identical or near identical, no further
proof of infringement is necessary.296 If the marks are not identical, affidavits from
dealers and customers to the effect that they would be deceived or confused may
be helpful though ultimately the question of similarity is a matter for the judge to
286 Collett, Specific Relief, 5th Edn., p. 401. 287
Merganthalar Linotype Co. v. Intertype Co. (1926) 43 RPC 289. 288
Saccharine Co. v. Quincy (1900) 2 Ch. 249. 289
Feivergler Ltd. v. Spun Wools Ltd. AIR 1947 PC 147. 290
Reliance Rubber Co. v. Reliance Tyre Co. (1925) 42 RPC 99. 291
Jwala Prasad v. Munnalal (1910) ILR 37 Cal. 204. 292 Woodroffe, Injunctions, 6th Edn., 1964, p. 536. 293
Taylor v. Veeraswami (1883) ILR 6 Mad 110. 294
Ralli v. Fleming (1877) ILR 3 Cal 422. 295
Upper Assam Tea Co. v. Harbourd (1890) 7 RPC 183. 296
Star Cycle Co. v. Franken Burgs (1906) 23 RPC 183.
567
decide.297 The plaintiff will have to make out a prima facie case of infringement
and show that balance of convenience is in his favour. Interim injunction will not
be granted in the following cases:
a. If there is unexplained delay in coming to court.
b. Where the defendant has been using the mark for a long time.
c. Where the likelihood of confusion is doubtful.
d. Where damages would be adequate relief.
e. Where the balance of convenience is in favour of the defendant.298
However if the defendant has adopted the mark fraudulently, in the absence of
other circumstances, interim injunction will rarely be refused.299 Where the case is
not sufficiently strong for granting an interim injunction and damages may be
adequate remedy, the defendant may be ordered to keep accounts and submit
periodical statements of the sales turnover of the goods sold under the impugned
mark.300 The defendant may, in lieu of an injunction, give an undertaking not to
use the mark pending trial. Interim injunction granted may be suspended for a
reasonable period to enable the defendant to comply with the order.301 Where
interlocutory injunction is granted, the plaintiff must give an undertaking to pay
damages for loss, if any, suffered by the defendant, if the defendant succeeds at the
trial.302 In a suit, the argument addressed was that the defendants are too big a
business house to pass off goods manufactured by them under the plaintiff's
trademark. Turnover of sales of defendant was highlighted to be higher than the
sales of plaintiff. It was held that in case of infringement of trade-mark, volume of
sales is no consideration. The statutory right of trademark of a small trader cannot
be denied to him. Registered mark cannot be reduced to irrelevance or nullity.
An action for infringement of a trade mark is maintainable, even though the person
who brings the suit is not the manufacturer or selector of the goods, but is merely a
vendee of them.303 Issuance of injunction does not require such minuteness of
imitation as to deceive persons of unusual sagacity and information. The test is
297
Purushottam Dass v. Daya Lal Meghji 1959 MPLJ 224. 298
B.K. Engineering Co. v. UBHI Enterprises AIR 1985 Del 210. 299
Brook Bond India v. Royal Products (1981) 2 Kant LJ 92. 300
GIC Industries v. ITC Ltd. AIR 1992 Mad 253. 301
Radha Krishan v. Trilok Chand AIR 1959 MP 21. 302
Weston Electronics Ltd. v. Weston Industries AIR 1992 Del 340. 303
Kerr & Co. v. Ahmedabad Cotton Mfg. Co. AIR 1938 Cal. 458.
568
whether an ordinary purchaser purchasing with ordinary caution is likely to be
misled, that is to say, whether there is a reasonable probability of deception.304 It is
not necessary to prove actual deception of any person.305 At the stage of granting
injunction in a case for infringement of trade mark, only prima facie opinion is
required to be formed on the question whether the two marks and containers are
deceptively similar or not and whether it is likely to cause deception or not to an
average customer and on which side the balance of convenience lies.306 In an
application for an injunction to restrain the use of a trade mark, it is not sufficient
defence to say that there was no fraudulent intention.307 A company is entitled to an
injunction to restrain a new company from carrying on the same kind of business
as the old company under the name identical with or similar to plaintiff company.
The fact that the new company has been registered and the Registrar took no
objection is of no avail.308
In India formerly there was no statute for registration of trade marks and rights and
liabilities were determined by reference to the principles of English common
law.309 The right was acquired only by user.310 Now the right and liabilities are
governed by the Trade and Merchandise Marks Act, 43 of 1958. It cannot be said
that till the plaintiff is able to get registration of trade mark transferred in its name
the plaintiff cannot bring the suit for injunction restraining breach of the trade mark
by any other unscrupulous person.311 Perpetual Injunction to restrain infringement
is the only mode by which the proprietary right of trademark can be effectively
protected.312 To constitute piracy, a fraudulent intent is not necessary and an
injunction may be granted even if the defendant is ignorant that the symbol is the
property of another person.313 An action in respect of infringement rests on the
principle that if a person has acquired a reputation for his goods bearing a
particular mark, no other trader is entitled to imitate the mark so as to deceive the
trade or public and to secure for his own goods the goodwill and reputation which
304
Byramjee Cowasjee v. Vera Somabhai 36 IC 965. 305
Balladin v. Puranmal 30 IC 633. 306
Pidilite Industries P. Ltd. v. Mittees Corporation (1989) 16 DRJ 72. 307
Graham v. Ker Dods & Co. 3 Bom LR AP 4. 308
Gurkha Association, Simla v. Mahumed Umar 51 IC 905. 309
Harnath v. Jagannath ILR 42 Cal 262 PC. 310
Wulfing v. Jivandas & Co. ILR 50 Bom 402. 311
Modi Threads Ltd. v. Som Soot Gola Factory AIR 1992 Del 4. 312
Muniswami v. Raja Gopala AIR 1928 Mad 759. 313
Bundi Cement v. Abdul Hussain AIR 1936 Bom 418.
569
belong to his rival.314
7.9.3.3 Copyright
The basic principle of the law of copyright is that a party is not at liberty to avail
himself of the labour which another man has put in for producing his work.315
Copyright is merely the right of multiplying copies of a published writing and has
nothing to do with the originality or literary merits of the author or composer.316
An injunction restraining copyright infringement will be granted where it is clear
that the applicant has relied upon work, labour and skill for production of his work
and there is no issue to go to trial on originality.317 In appropriate cases, the court
may on an application by the plaintiff pass an ex-parte order requiring the
defendant to permit the plaintiff accompanied by solicitor or attorney to enter his
premises and take inspection of relevant documents and articles and take copies
thereof or remove them for safe custody.318 The necessity of such an order arises
where there is a grave danger of relevant documents and infringing articles being
removed or destroyed so that the ends of justice will be defeated.319 Such an order
is called in the United Kingdom as an ‘Anton Piller Order’ (named after a plaintiff
in a case where such an order was first passed). It is similar to an ex-parte
interlocutory order to inspect the premises of the defendant and take inventory of
the offending articles passed in an ordinary suit in India. In passing an order of this
nature the basic safeguards of equity must be strictly enforced. The plaintiff, in his
application, must make the fullest possible disclosure of all material facts within
his knowledge, and if he fails to discharge this obligation he will not be entitled to
any advantage from the proceedings and he will be deprived of any advantage
already obtained by the order.320
In order to secure immediate protection from a threatened infringement or from the
continuance of an infringement, a plaintiff may apply for an interlocutory
injunction pending the trial of the action or further orders.321 An interlocutory
injunction will not be granted where the defendant might suffer irreparable injury 314
Gujrat Ginning v. Sudeshi Mills AIR 1939 Bom 118. 315
Macmillan v. Cooper (1924) ILR 48 Bom 308. 316 Kerr, Injunction, 6th Ed pp 370-71. 317
Mac Millan Publishers v. Thomas Reed Publications (1993) FSR 455. 318
Performing Rights Society v. Urban Council of Bray 32 PLR 20. 319
Hanfstaengl v. Smith (1905) 1 Ch. 519. 320 Kartar v. Ladha Singh AIR 1931 Lah. 624. 321
Proctor & Gamble Co. v. Christian Hoden (1989) 1 Mad LJ 36.
570
from an injunction pending trial and the plaintiff can be protected by the defendant
being ordered to keep an account, nor will it normally be granted where a bonafide
defence of fair dealing has been pleaded, or if the plaintiff has been guilty of undue
delay in coming to the court or his conduct amounted to acquiescence in the
infringement or if there is any substantial doubt as to the plaintiff's right to
succeed.322 In considering whether to grant an interlocutory injunction the court
must look at the whole case. It must have regard not only to the strength of the
claim but also to the strength of the defence and then decide what is best to be
done.323 Where the proprietor of a Law Digest copies the headnotes of reported
cases, it was held to be an abuse of the right to extract.324 So also, a defendant was
restrained from copying reports of law cases from a work of the plaintiff,325 and the
publisher of a series of reports containing reprints of cases or judgments from the
Law Reports was restrained as an infringement of copyright in Law Reports.326 In a
case, the plaintiff brought out a new and annotated edition of a certain well known
Sanskrit work on religious observances. The defendants printed and published one
edition of the same work, the text of which was identical with that of the plaintiff's
work, which moreover contained the same additional passages and the same foot
notes at the same places with many slight differences. It was held that the
plaintiff's work was an original work and entitled to protection, and that as the
defendants had printed the plaintiff's work they could be restrained by
injunction.327 Where the pirated matter is trivial and out of proportion to the mass
of original matter, the Court may in its discretion decline the prayer for perpetual
injunction and grant damages instead.328
7.9.4 Bank Guarantee
A bank guarantee is an instrument of commercial use that possesses the nature of a
contract, intended between two parties, to secure the fact that a contract is
complied with. It can be considered to be an off-shoot of the main contract
between two parties. Guarantees are crucial from the point of view of minimizing
the risks that are involved in commercial contracts.
322 Dew v. East London Rubber Co. Ltd. MCC (1917-23) 252. 323 Rajnibai @ Mannubai v. Kamala Devi 1 (1996) CLT 427. 324
Sweet v. Benning 16 CB 459. 325
Sweet v. Shaw 1 Jur 917. 326
Incorporated Council of Law Reporting v. Green & Sons 1912 WN 243. 327
Gangavishunu Srikishon Das v. Moreshwar Bapuji 13 Bom 358. 328
Glaxo Operations v. Samrat Pharmaceuticals AIR 1984 Del 265.
571
The peculiarity of the bank guarantee lies in the fact that, if the beneficiary
suspects that there has been a breach of contract by the other party, he can encash
the guarantee and get hold of the amount immediately, without having to undergo
the hassles of litigation. Therefore a bank guarantee proves to be relevant, essential
and efficient.
The invocation of a bank guarantee by the beneficiary can be restrained by an
injunction under the Civil Procedure Code, 1908, or the Specific Relief Act, 1963.
But the considerations governing the grant of injunctions shall not apply in cases
of a bank guarantee.
Courts are usually reluctant to grant an injunction against a bank guarantee. The
general principle with regard to grant of an injunction in a matter related to bank
guarantee is that the court is not bound to grant injunction in every case.
A bank guarantee which is payable on demand is made upon the bank by the
beneficiary. The Bank is not concerned with any inter se disputes between the
beneficiary and the persons at whose instance the bank had issued the bank
guarantee. In the case of Svenska Handelsbanken vs. Indian Charge Chrome329 a
Bench of three Judges of this Court has, while dealing with performance
guarantees and guarantees against advances, observed that looking to the
obligation assumed by the bank under such guarantees or letters of credit, the bank
cannot be prevented by the party at whose instance the guarantee or letter of credit,
was issued, from honouring the credit guaranteed. Since the guarantee or letter of
credit, was issued, from honouring the credit guaranteed. Since the bank pledges its
own credit involving its reputation, it has no defence except in the case of fraud or
irretrievable injustice. Fraud must be of an “egregious nature” so as to vitiate the
entire underlying transaction. Explaining the kind of fraud that may absolve a bank
from honouring its guarantee this Court in the above case quoted with approval the
observations of Sir John Donaldson in Bolivinter Oil S.A vs. Chase Manhattan
Bank:330
“The wholly exceptional case where an injunction may be granted is where it is
proved that the bank knows that any demand for payment already made or which
329 1994 SCR (1) 261. 330 [1984] 1 All ER 351.
572
may thereafter be made will clearly be fraudulent. But the evidence must be clear
both as to the fact or fraud and as to the bank's knowledge. It would certainly not
normally be sufficient that this rests on the uncorroborated statement of the
customer, for irreparable damage can be done to a bank's credit in the relatively
brief time which must elapse between the granting of such an injunction and an
application by the bank to have it charged.”
While irretrievable injustice should be of the kind arising in an irretrievable
situation which was referred to in the US case of Itek Corpn. Vs. First National
Bank of Boston331 the irreparable harm should not be speculative. It should be
genuine and immediate as well as irreversible- a kind of situation which existed in
the case of Itek Corpn. (Supra) Whee, on account of the revolution in Iran the
American Government had cancelled all expert contracts to Iran and had blocked
all Iranian assets within the jurisdiction of the United States. Fifty-two American
had been taken hostages in Iran. In this situation the Court felt that the plaintiff had
no remedy at all and the harm to him would be irreparable. This kind of a situation
is not a likely situation. This Court in the case of Svenska Handelsbanken (Supra)
has cited with approval the observations of this Court in the case of U.P. Co-op.
Federation Ltd. vs. Singh consultants & Engineers (P) Ltd.332 to the effect that the
Court should not lightly interfere with a performance bond or guarantee unless
there is fraud of the beneficiary and not somebody else.
It is true the Bank guarantee may contain an express term to the effect that any
demand made by the owner shall be conclusive and binding on the bank
notwithstanding any difference between the owner and the contractor or any
dispute pending before any Court, Tribunal, arbitrator or any other authority,
Nevertheless, this express term merely reiterates the nature of a bank guarantee
which is payable on demand being made by the beneficiary of the bank guarantee.
A bank guarantee which is payable on demand implies that the bank is liable to pay
as and when a demand is made upon the bank by the beneficiary. The Bank is not
concerned with any inter se disputes between the beneficiary and the person at
whose instance the bank had issued the bank guarantee. There can be, therefore, no
merit in a submission that a bank guarantee has not been properly invoked in the
light of aforementioned discussion. Moreover, the bank guarantees are
331 566 F.Supp. 1210 (1983). 332 1988 AIR 2239.
573
unconditional and payable on demand.
It has been the largely held view that the court shall refrain from granting
injunction to the extent of performance of contractual obligation arising out of a
letter of credit between one bank and another. If such type of injunction were to be
granted, in a transaction between two banks, the whole banking system in the
country will fail. Where in the course of commercial dealings any conditional of
credit is given or accepted, the beneficiary is entitled to realise such letter of credit
in terms thereof. The Bank giving such letter of credit is bound to honour it
irrespective of any dispute raised by a customer. The very purpose of giving such a
letter of credit or bank guarantee would otherwise be defeated and, therefore, the
Court should be very slow in granting any temporary injunction to restrain
realization of such letter of credit or bank guarantee. Existence of any dispute
between the parties to a contact is not a ground for issuing injunction restraining
the enforcement of the letter of credit or bank guarantee. The judicial procedures
carve out only two exceptions to this general rule of prudence and caution.
a. A fraud in connection with bank guarantee or letter of credit would affect the
very foundation of such bank guarantee or letter of credit. So if there is such a
fraud of which the beneficiary seeks to take advantage, certainly it may be a
case where he can be restrained by the Court from doing so by grant of
temporary injunction.
b. The second exception relates to cases where allowing encashment of an
unconditional letter of credit of bank guarantee would result in irreparable
harm or injustice to one of the parties concerned. These grounds are not
necessarily connected. However, in some cases, both may co-exist.
This principle is laid down by the Apex Court in catena of decisions, and reference
in this respect may have to the latest decision of the Apex Court in U.P. State
Sugar Corporation vs. Sumac International Ltd.333 The case in hand does not fall
in the category of cases where the injunction could have been issued by the Courts,
restraining the Bank from making payment to the beneficiaries of the letter of
credit. The very first and foremost ingredient for praying for such a relief against
the Bank was altogether missing in this case. The plaintiff- appellant was not a
contracting party to the letter of credit, and secondly the letter of credit, was not in 333 (1997) 1 SCC 568.
574
his favour, this prayer in a proper case was understandable coming from the Bank
or customer, but not by a person who was altogether stranger to the contract. At the
most what the plaintiff-appellant had stated was accepted to be correct, his position
was only of an agent, and/or a commission agent for procuring export order. In a
case where an agent or commission agent is not paid his commission from the
profit of the export order procured by him for the exporter, he is not within his
from the profit of the export order procured by him for the exporter, he is not
within his competence to file a suit praying for injunction restraining the concerned
bank from permitting withdrawal of the amount of letter of credit by the exporter
who is the permitting withdrawal of the amount of letter of credit by the exporter
who is the beneficiary herein. Even in a case where the agreement of agency or
commission agent is accepted to be true and genuine, still the payer of the nature as
sought by the plaintiff- appellant against defendant respondent No.1 could not been
granted by the Court.
Leaving apart the fact that this first ingredient was altogether missing from this
case, further it was not the case of the plaintiff-appellant that the letter of credit
was a forged document, or secondly, that in case the temporary injunction was not
granted he will suffer irretrievable loss in the matter. So the prayer made in the
interim injunction application for restraining defendant-respondent No.2 Bank
from making payment of the amount of letter of credit credited in the account of
defendant No.1 to him was wholly misconceived, ill-advised and unwarranted.
In Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd.334
and I.T.C Ltd. vs. Debt Recovery Appellate Tribunal, the law pertaining to above
contention was summarized as under:-
a. A bank guarantee is an independent and distinct contract between the
beneficiary and the bank and the rights and obligations therein are to be
determined on its own terms.
b. A bank guarantee which is payable on demand implies that the bank is liable to
pay as ad when a demand is made upon the bank by the beneficiary. The bank
is not concerned with any inter se disputes between the beneficiary and the
persona at whose instance the bank had issued the bank guarantee;
c. Commitments of the banks must be honoured free from interference by the 334 AIR 1997 SC 2477.
575
Courts. Otherwise trust in commerce internal and international would be
irreparably damaged.
d. An irreparable commitment either in the form of confirmed bank guarantee or
irrevocable letter of credit cannot be interfered with except in case of
established fraud of an egregious nature a to vitiate the entire underlying
contract; or in case of special equities in the form of preventing irretrievable
injustice between the parties. Allegations of irretrievable injustice must be
genuine and immediate as well as irreversible.
Here, it needs to be highlighted that in order to restrain the operation of the either
irrevocable Bank Guarantee or irrevocable letter of credit petitioner must establish
a strong prima facie case of fraud of egregious nature committed in the execution
of the contract.
Therefore, from the discussion relating to the principles for grant or refusal to grant
of injunction to restrain enforcement of a Bank Guarantee or a Letter of Credit, one
must note that the following tenets:
(i) While dealing with an application for injunction in the course of commercial
dealings, and when an unconditional Bank Guarantee or Letter of Credit is given or
accepted, the Beneficiary is entitled to realize such a Bank Guarantee or a Letter of
Credit in terms thereof irrespective of any pending disputes relating to the terms of
the contract.
(ii) The Bank giving such guarantee is bound to honour it as per its terms
irrespective of any dispute raised by its customer.
(iii) The Courts should be slow in granting an order of injunction to restrain the
realization of a Bank Guarantee or a Letter of Credit.
(iv) Since a Bank Guarantee or a Letter of Credit is an independent and a separate
contract and is absolute in nature, the existence of any dispute between the parties
to the contract is not a ground for issuing an order of injunction to restrain
enforcement of Bank Guarantees or Letters of Credit.
(v) Fraud of an egregious nature which would vitiate the very foundation of such a
Bank Guarantee or Letter of Credit and the beneficiary seeks to take advantage of
576
the situation.
(vi) Allowing encashment of an unconditional Bank Guarantee or a Letter of
Credit would result in irretrievable harm or injustice to one of the parties
concerned.
7.9.5 ELECTION DISPUTES
7.9.5.1 Foreign Traditions
Elections are events that are highly scrutinised worldwide. Election disputes are
known to crop up time and again. There have been several instances where judicial
intervention has been sought for their resolution. But the question that has
accompanied such situations has been what should be the extent to which an
intervention in election disputes should be allowed by way of injunctions or
otherwise. A reference to any treatise on elections in England will show that an
election proceeding in that country is open to scrutiny on very restricted grounds,
one of them being the improper rejection of a nomination paper. Regarding English
law, Justice Fazl Ali held:
“Having regard to the important functions which the Legislatures have to perform
in democratic countries, it has always been recognized to be a matter of first
importance that elections should be concluded as early as possible according to
time-schedule and all controversial matters and all disputes arising out of elections
should be postponed till after the elections are over, so that the election
proceedings may not be unduly retarded or protracted. In conformity with this
principle, the scheme of the election law in this country as well as in England is
that no significance should be attached to anything which does not affect the
‘‘election’’; and if any irregularities are committed while it is in progress and they
belong to the category or class which, under the law by which elections are
governed, would have the effect of vitiating the ‘‘election’’ and enable the person
affected to call it in question, they should be brought up before a special tribunal
by means of an election petition and not be made the subject of a dispute before
any Court while the election is in progress.”335
335
In N.P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem District and four Others [(Civil Appellate Jurisdiction) Case No. 351 of 1951 decided by Supreme Court on 21st January, 1952].
577
The kind of caution and care that the grant of injunctions in election disputes
demands was further on display during the Florida presidential-election
controversy in 2000, the campaign of George W. Bush prayed before a federal
appeals court for a preliminary injunction to halt the manual counting of ballots till
the U.S. Supreme Court could decide on granting a permanent injunction. In that
case, Siegel v. Lepore,336 the U.S. Court of Appeals for the Eleventh Circuit
refused to grant the injunction, stating that the Bush campaign had not "shown the
kind of serious and immediate injury that demands the extraordinary relief of a
preliminary injunction."
7.9.5.2 Position in India
It is settled law that once election process is initiated, it cannot be interfered with
by the court. In the case of Election Commission of India Vs. Ashok Kumar,337 it
was held by the Hob'ble Supreme Court that if an election (the term “election”
being widely interpreted so as to include all steps and entire proceedings
commencing from the notification of election till the declaration of result) is to be
called in question and which questioning may have the effect of interrupting,
obstructing or protracting the election proceedings in any manner, invoking of
judicial remedy has to be postponed till completion of proceedings. It was further
held that the court should act with reluctance on any case brought to it during the
pendency of election proceedings and shall not act except on a clear and strong
case for its intervention having been made out by raising the pleas with particulars
and precision and supporting the same by necessary material.
In the cases of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari
Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and Ors.338 and
Tapash Majumder and Another Vs. Pranab Dasgupta and Others,339 the election
process was challenged while it was still ongoing on the ground that the electoral
roll has not been prepared in consonance with law. It was held that until election
process reaches culmination, the same cannot be called into question. With respect
to the aforesaid decisions, there is no manner of doubt that once the election
process has been initiated by issuing a notification, the court should not intervene
336 234 F.3d 1163 (11th Cir. 2000). 337 AIR 2000 SC 2979. 338 (2001) 8 SCC 509. 339 (2004) 13 SCC 574.
578
in the election process till it culminates into declaration of results.
Further, in Kailash v. Nanhku340, it was held by the Apex Court that the trial of an
election petition is entirely different from the trial of a civil suit, as in a civil suit
trial commences on framing of the issues while trial of an election petition
encompasses all the proceedings commencing from the filing of the election
petition up to the date of decision. Therefore, the procedure provided for the trial
of civil suits under CPC is not applicable in its entirety to the trial of the election
petition. For the purpose of the election petition, the word 'trial' includes the entire
proceedings commencing from the time of filing the election petition till the
pronouncement of the judgment. The applicability of the procedure in the Election
Tribunal is circumscribed by two riders: firstly, the procedure prescribed in CPC is
applicable only 'as nearly as may be', and secondly, CPC would give way to any
provisions of the Act or any rules made thereunder. Therefore, the procedure
prescribed in CPC applies to election trial with flexibility and only as guidelines."
Also in Election Commission v. Sesha Aaiyar341 it was conclusively stated:
(i) The procedures contemplated under the Code of Civil Procedure are applicable
to the election petitions as far as possible.
(ii) The application under Order 39 Rule 1 and 2 C.P.C. for interim injunction is
maintainable in the election petitions in exceptional cases.
However, the judgment of Hon'ble Apex Court in Pundlik vs. State of Maharashtra
& Ors342 stated that the arrangement of election would not in any way prevent the
courts from passing an order of injunction when the election process is found to be
illegal.
The judgment of the Supreme Court in S.R.Vetrivel vs. The Election Officer, O/o
The Dharmapuri District Consumers Co-op., Wholesale Stores Limited,
Dharmapuri Town and others343 made it clear that the statutory violation alone will
be sufficient for granting injunction in so far as the election to co-operative
societies are concerned.
340 Civil Appeal No. 7000 of 2004 decided by Supreme Court on 6th April, 2005. 341 O.A.No.735 of 2012 decided by the Madras High Court on 18th September, 2012. 342 (2005) 7 SCC 181. 343 CDJ 1998 MHC 1140.
579
In Digvijay Mote Vs. Union of India & Ors.344 It was futher held that the powers
conferred on the Election Commission are not unbridled; judicial review will be
permissible over the statutory body, i.e., the Election Commission exercising its
functions affecting public law rights though the review will depend upon the facts
and circumstances of each case; the power conferred on the Election Commission
by Article 324 has to be exercised not mindlessly nor mala fide nor arbitrarily nor
with partiality but in keeping with the guidelines of the rule of law and not
stultifying the Presidential notification nor existing legislation.
It is imperative to mention here about the case of Anugrah Narain Singh and Anr.
Vs. State of U.P. & Ors.,345 which is a case relating to municipal elections in the
State of Uttar Pradesh. Barely one week before the voting was scheduled to
commence, in the writ petitions complaining of defects in the electoral rolls and
de-limitation of constituencies and arbitrary reservation of constituencies for
scheduled castes, scheduled tribes and backward classes the High Court passed
interim order stopping the election process. The Supreme Court quashed such
interim orders and observed that if the election is imminent or well under way, the
Court should not intervene to stop the election process. If this is allowed to be
done, no election will ever take place because someone or the other will always
find some excuse to move the Court and stall the elections. The importance of
holding elections at regular intervals cannot be over-emphasized. If holding of
elections is allowed to stall on the complaint of a few individuals, then grave
injustice will be done to millions of other voters who have a right to elect their
representatives to the democratic bodies.
Therefore, generally speaking, the settled view as laid down by the Hon’ble Apex
Court is that the Courts shall not ordinarily interfere with the election, once the
election process has started. It has also been the reason that the person who sought
for remedy shall be relegated the alternate remedy for filing an election petition or
questioning the election result on the same reasons.
7.9.6 TERMINATION OF EMPLOYMENT
Injunction law in employment termination cases has witnessed a mercurial journey
in the last few years. It started with the decision in S. R. Tewari V. District 344 (1993) 4 SCC 175. 345 1996 (6) SCC 303.
580
Board,346 and came full circle with the pronouncement in D.K. Biswas V. Director
of Public Instruction.347
7.9.6.1 The Biswas Case348
The brief facts of this case are as follows: there was a private college financed and
controlled by the Government. It was governed by statutes and the Education Code
framed by the Government. Mr. Biswas was a permanent government servant
before being appointed teacher in the college. Biswas resigned from the
government post and to join the College even though his appointment was subject
to approval of the Director of Public Instruction. He had only worked for five
months when the Management had to terminate Biswas's services because of
certain irregularities. Biswas brought action for grant of an injunction to restrain
the college from terminating his services. The matter finally came up before the
Apex Court. The Supreme Court came across two legal hurdles in the judgment
which were as follows:
a. The college, the employer of Biswas, was not statutory body.
b. The action of the Director (though wrongful and erroneous) was “not in
contravention of any statutory provisions or regulations or procedural rules”.
Thus, the court only awarded damages
Now, one must examine the two broad questions that the case brought up and
which are:
a. Is it necessary that the employer must be a statutory body and is it not
sufficient that a legal breach has been committed though by a non-statutory
persons- for a declaration of nullity and continuance in service to be granted to
an aggrieved employee?
b. breach of a principle of administrative or public law, as distinct from statutory
law, not a legal breach sufficient for a declaration of nullity and continuance in
service?
346 AIR 1964 SC 1680. 347 (1987) 2 SCC 252. 348
D.K. Biswas V. Director of Public Instruction (1987) 2 SCC 252.
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7.9.6.2 Equitable Injunctive Remedy in Employment Cases in English Law
There was a time when a Court of Common Law could do no better than award
damages for breach of a contract. The Lord Chancellor though was empowered to
issue equitable reliefs like specific performance, injunction and declaration349 but
not in case of a contract of personal service. However, excerpts of the new
principles, according to Halsbury's Laws of England are that:
“ an employer may be restrained from dismissing an employee in breach of
contract if there is no loss of confidence between employer and employee or if at
least in a contract of employment to carry out a public duty) the employee has been
dismissed in a manner which does not comply with statutory or contractual
regulations governing dismissal.”
Here one must analyse the rules that brought about changes.
The Pickering rule of confidence
The new Bishop had discontinued the services of the receiver in Pickering v. The
Bishop of Ely (1843)350, Knight Bruce V.C. setting the aforesaid rule held:
“ to force upon the Bishop in such character a person, however estimable, however
professionally eminent, who is objectionable to him, or in whom he does not
confide, would if legal, be surely hard; and sitting in a court of equity, I do not feel
any inclination to do it.”351
The Vine Rule of Statutory Intervention
This rule was laid down in Vine v. National Dock Labour Board.352 It was the case
that exposed the first major loophole in the Pickering rule. Further in Gould v.
Stuart353 it was stated by Sir Richard Couch said that if 'pleasure' was all the
statutory “protection and benefit of the officer” would be rendered “superfluous,
useless and delusive. He held:
349 Pollock and Mulla on Indain contract and Specific Relief Acts, Ninth Edition, 1972, p. 805. 350 (1843) 2 Y. 351 (1853) 3 Dc GM & 914. 352 (1956) 3 All ER 939. 353 (1896) AC 575.
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“This is, in their Lordships' opinion, an exceptional case, in which it has been
deemed for the public good that some restrictions should be imposed on the power
of the Crown to dismiss (the servants).”
The Malloch Rule of Public Employment
This rule was enunciated in Ridge v. Baldwin (1963)354 where the House of Lords
granted injunction to an employee who had been dismissed without hearing from
an office and held:
“an officer cannot lawfully be dismissed without first telling him what is alleged
against him and hearing his defence or explanation.”
The Hill Rule of Ubi Jus Ibi Remedium
In the landmark case of Hill v. C.A. Parsons & Co. Ltd.355 a trade union forced a
private employer to dismiss an employee who sought an injunction. Lord Denning,
MR., viewed the case as not “in the ordinary course of things”.356 He stated that the
rule prohibiting injunction was not inflexibleand that it allowed exceptions to
prevail.357 Then he uttered the following memorable words:
“It may be said that, by granting an injunction in such a case, the court is indirectly
enforcing specifically a contract for personal services. So be it.”358
7.9.6.3 Indian Scenario
In India, the law of specific relief is codified. In fact Section 14(1)(b) of the 1963
of the Specific Relief Act, 1963, bars specific enforcement of any contract which is
“dependant on the personal qualifications or volition of the parties.” The word that
matters is 'personal'. Therefore a distinction between 'personal service' and 'public
employment' has been recognised in India by statute for long now. While the
former cannot be specifically enforced, the latter does not suffer from any such
disability. The underlying feature of 'personal service' is volition - “the will to do
354 (1963) 2 All Er 66. 355 (1971) 3All ER 1345, 356 The decision was a majority judgment of Lord Denning, MR, and Sachs, J.: Stamp, J.
dissenting. 357 ibid., at p. 1350(b). 358 ibid., at p. 1350(f).
583
or not to do”.
7.9.6.4 Development of law through judicial innovation
The traditional approach of judiciary in granting injunction was to differentiate
between a statutory and non-statutory body. Finally a more liberal and far-sighted
constitutional philosophy evolved. With the advent of 'public employment' the
Courts finally stopped asking “Is the employer a statutory body?”
This reformative development came along with three broad features – (1) extension
of the ambit of Fundamental Rights, (2) the extension of the ambit of agency and
instrumentality of 'the State' under Article 12 of the Constitution and the
subsequent extension of the ambit of 'public employment' to more and more kinds
of employers, statutory and non-statutory, and (3) the subsequent availability of the
protection of Fundamental Rights to a growing class of public employees.
7.9.6.5 Fundamental Rights
In E.P. Royappa v. State of T.N. (1973)359 the Apex Court held the doctrine of anti-
arbitrariness to be an inherent part of right to equality entrenched in article 14. In
fact articles like 12 (state) and 21 (right to life) also saw broadening of their scope.
The designation of the non-statutory body as a public employer spelled doom for
the traditional approach. It is now settled that the employees of these non-statutory
bodies have constitutional rights, with status. They are part of public employment
and not personal service. Now the employees who are faced with termination in
contravention of their Fundamental Rights, could seek specific performance. They
could even seek declaration, injunction, reinstatement. Many times they did ask
and they succeeded.360 At times, they could challenge the rule of termination itself.
In Water Transport361, for instance, the employer was a non-statutory body. Yet,
in that case, as in WBSEB, the employees got even the rule of termination
invalidated. The employment being public employment and the employees being
men with status, it now is hardly a contention whether the employer is a statutory
or non-statutory body.
359 (1974) 4 SCC 3. 360 A.L. Kalra; Central Inland Water Transport, Manmohan S. Jaitia. 361 Central India Water Transport Corpn. v. B.N. Ganguly, (1986) 3 SCC 156
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7.9.7 ANTI-SUIT INJUNCTION
The anti-suit injunction is a powerful remedy for parties entangled in multiple
litigations in India and outside.362 It is imperative to initiate the discussion by
scrutinizing the foundations of the anti-suit injunction, which in turn props up two
crucial propositions. Firstly, the present structure of grounds for issuing the relief
of an anti-suit injunction, including the question, and contention, of the right not to
be sued, reveals an important deviation in judicial opinion. Secondly, a
classification of anti-suit injunctions which differentiates between those which are
granted as a form of ‘ancillary relief to protect the judicial processes of the forum’,
and those granted in respect of ‘private justice between the parties and the
vindication of their rights’, provides greater insight than the existing distinctions.
7.9.7.1 Structure
In England, the power to grant an injunction has statutory recognition and is to be
imparted in all cases where it is ‘just and convenient’.363 Personal jurisdiction over
the respondent is a necessity,364 but in order to award an anti-suit injunction the
applicant needs not demonstrate a legal or equitable right not to be sued.365 At
different occasions, vexation and oppression have been seen as the primary test for
the grant of an anti-suit injunction366 whilst, at others, it has been
unconscionability.367 However, courts seem to have a liking towards Lord Goff's
test of vexation and oppression.
7. 9.7.2 The question of rights
The question of rights is crucial when carrying out choice of law analysis. This is
so because contending whether a right exists might raise a potential choice of law
362 The argument that European law should be applied by analogy to anti-suit injunctions granted
in respect of proceedings before non-EU courts has been given short shrift. See eg Shashoua v Sharma [2009] EWHC 957 (Comm), [2009] 2 All ER (Comm) 477 [35]-[39]; Midgulf International Ltd v Group Chimique Tunisien [2010] EWCA Civ 66, [2010] 2 Lloyd's Rep 543 [67]-[69].
363 Senior Courts Act 1981, s 37(1). 364
Donohue v Armco Inc [2001] UKHL 64, [2002] 1 All ER 749 [19]. 365
Fourie v Le Roux [2007] UKHL 1, [2007] 1 WLR 320 [30]. 366 ibid 871; Hyman v Helm (1883) LR 24 Ch D 531 (CA) 537-42. 367
British Airways Board v Laker Airways Ltd [1985] AC 58, 95; Turner v Grovit [2001] UKHL 65, [2002] 1 WLR 107 [23]-[25].
585
question.368 When we talk of anti-suit injunctions, there is a question of whether
the notions of unconscionability, vexation and oppression are different from a non-
contractual right not to be sued, or are terms used to express the existence of such a
right. The contention that an anti-suit injunction may be granted when there has
been an infringement of an applicant's equitable rights has been called fictitious, on
the grounds that equitable rights are remedial in nature and not substantive. In
considering the question of rights, Collins LJ placed reliance on the distinction
drawn by the courts between alternative and single forum cases. In alternative
forum cases it is thought that a claim may be brought either in England or in
another forum and an injunction may be granted ‘as the ends of justice require’,
particularly where pursuing the relevant proceedings would be vexatious or
oppressive.369
7. 9.7.3 Comity
The role of comity in anti-suit injunctions is of significantly high, primarily
because it has been stressed upon that comity alone might preclude the grant of
injunctive relief in specific cases.
One must take note of its definition propounded in Hilton v Guyot370 which has
garnered support in both the United States371 and other common law
jurisdictions,372 and has been referred to in England.373 In Hilton, the majority of
the Supreme Court of the United States supported the view that ‘Comity’, in the
legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere
courtesy and good will, upon the other. But it is the recognition which one nation
allows within its territory to the legislative, executive or judicial acts of another
nation, having due regard both to international duty and convenience, and to the
rights of its own citizens or of other persons who are under the protection of its 368 A Briggs, ‘Anti-Suit Injunctions in a Complex World’ in F Rose (ed), Lex Mercatoria: Essays
on International Commercial Law in Honour of Francis Reynolds (LLP Professional Publishing 2000) 219, 243.
369 British Airways Board v Laker Airways Ltd [1985] AC 58, 95; Turner v Grovit [2001] UKHL 65, [2002] 1 WLR 107 [23]-[25].
370 159 US 113 (1895). 371 It is said to be the most commonly cited statement of comity in US law: JR Paul, ‘Comity in
International Law’ (1991) 32 HarvIntlLJ 40, 44. 372 Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077, 1096 (Supreme Court of
Canada); CSR v Cigna (n 53) 395-96 (High Court of Australia). 373 In re Johnson [1903] 1 Ch 821 (Ch) 829 appears to accept the statement as authoritative.
Following a long hiatus, the next reported reference to Hilton, whilst not criticizing this definition, suggests that it does not represent English law: Homan (n 94) 703.
586
laws.
Talking about judicial discretion in use of comity it can be stated that if it is to be
relied on as a factor in decisions of cases it should be used with caution. In
circumstances where comity is given some vague, overarching definition, there is a
danger that it might give courts a ‘discretion unregulated by general principles’.374
In Hilton, it was stated by the majority of the Supreme Court of the United States
that it was their ‘judicial duty to know and to declare the comity of their own
country’.
7. 9.7.4 Choice of Law
Talking about the rationale for choice of law and it remaining the true foundation
of the conflict of laws, Lord Nicholls noted:
“The jurisprudence is founded on the recognition that in proceedings having
connections with more than one country an issue brought before a court in one
country may be more appropriately decided by reference to the laws of another
country even though those laws are different from the law of the forum court.”
Comity, when viewed as an element of justice in cases involving foreign angle, has
a pivotal role to play by increasing tolerance towards foreign law.375 Limiting the
application of the lex fori in favour of foreign law where it is relevant is a
constituent element of comity. There has been a downfall in comity being brought
into play in the application of the act of state doctrine and an increase in reliance
on choice of law.
The fact that choice of law is applied in a limited manner can also be sourced to the
historical exclusion of choice of law from equitable doctrines. Equitable doctrines
and remedies have been a challenge and also the source of many others for choice
of law, which, until recently, have been largely overlooked.376 The division of
common law and equity is further concretised after English law has been
determined as the applicable law by choice of law rules. If choice of law rule is
374 Loucks v Standard Oil Co, 120 NE 198 (NY 1918) 201-02. 375
D McClean and K Beevers, Morris: The Conflict of Laws (7th edn, Sweet & Maxwell 2009) [21-008].
376 L Barnard, ‘Choice of Law in Equitable Wrongs: A Comparative Analysis’ [1992] CLJ 474
was a start, but did not consider anti-suit injunctions.
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difficult to ascertain, then it might be uncalled for to intermingle with the exiting
position. However, if the choice of law is held to be relevant and receives
acceptance, it necessarily follows that there is a situation ‘involving a conflict of
laws’, which calls for the application of Rome II.377 The case for widening the
application of choice of law in the non-contractual context does not necessarily
depend on Rome II, but if the principle is recognised, courts must follow the
specified guidelines for the same.
Where there is a case ‘involving a conflict of laws’ in respect of contractual
obligations,378 there is hardly any doubt that it is Rome I that comes to mind,
application of which does not depend upon any prior application of the domestic
law on categorisation.379 At the same time arbitration agreements and agreements
on choice of court are expressly excluded from Rome I.380 Suppose it is accepted
that Rome I must be considered before any application of the common law conflict
of laws in the context of contractual anti-suit injunctions, it can be deduced that the
same must go for Rome II in many, but not all, non-contractual contexts.381
However, if choice of law is not applicable to ancillary measures, the lex fori
applies by default.382 Talking about the form of relief it can be stated that a remedy
granted to uphold a right of a private party is a ‘measure designed to prevent or
terminate injury or damage’, falling within Article 15(d) of Rome II and thus is
governed by the law of the obligation.
7. 9.7.5 Position in India
Anti Suit Injunction is relatively a rare kind of injunction traditionally sought in
Indian Courts. There has been an upsurge in the demand for such injunctions. Such
injunctions were sought in varying matters of matrimonial disputes and
guardianship to cases that involved international trade and commerce. The
injunction essentially is through restraining the opposite party from prosecuting the
377
Rome II art 1(1). 378
Rome I art 1(1). 379
Raiffeisen Zentralbank Österreich AG v Five Star Trading LLC [2001] EWCA Civ 68, [2001] QB 825 [43].
380 Rome I art 1(2)(e).
381 As is explored below, injunctions granted to protect the processes of the forum do not fall
within the scope of Rome I. 382
A Briggs, ‘Conflict of Laws and Commercial Remedies’ in A Burrows and E Peel (eds), Commercial Remedies: Current Issues and Problems (6th edn, OUP 2003) 284-86.
588
separate case before the foreign or independent forum. The power is used sparingly
and with utmost diligence. Ordinarily it is believed that liberal grant of such
injunction amounts to interference with the process of administration of justice of
the foreign court. The law which is evolved in the contest as anti suit injunction
rests on the doctrinaire of forum non convenience. A leading case that has
substantially contributed to the development of the law of anti suit injunction was
the case of M/s Digital Filing System Inc. V/s Akhilesh Agarwal & Ors.383 In the
case it was argued that each court has an independent authority and mandate to
proceed with its case. It was urged that it may not be appropriate for one court to
consider itself superior to the other and stay proceedings of another court unless it
is related to the appellant and revision power. In this case it was observed as
follows:
“Appellants' plea that the Civil Court had no power to injunct a person from
pursuing his legal remedy appears attractive on the face of it because there is no
express power provision in the CPC which empowers a Civil Court to injunct a
person from pursuing a lawfully instituted remedy. Order 39 CPC also does not
authorise issuance of such injunction. But the matter would not rest at that because
the Civil Court was competent to grant a temporary injunction in appropriate cases
in exercise of its inherent power in cases not covered by Order 39 CPC to promote
the interests of justice.”
The position, therefore, that emerges is that a Court of Record/Civil Court would
be competent to injunct a party before it from pursuing the proceedings in a foreign
Court in exercise of its inherent power, saved by Section 151 CPC and by doing so
it was not staying the proceedings of the foreign Court, which it had no jurisdiction
to do but was only injuncting a party before it. But a question that arises here is
that in case such an injunction is granted, what would be the remedy available to
the aggrieved party. Is he to endlessly wait for this judge to finally decide the suit
or application for interim injunction, or can he challenge the order of grant of ex-
parte interim injunction before a superior court. It may act to mention that there has
been cleavage of judicial opinion about maintainability of appeal against order of
grant of ex-parte injunction.
Such a situation arose before Delhi High Court in Magotteaux Industries Pvt Ltd. 383 AIR 2005 Delhi 282.
589
& Ors. Vs. Aia Engineering Ltd.384 A single judge granted ex-parte interim
injunction, the aggrieved party chose to appeal before division bench instead of
seeking vacation of that order from the single judge. The plaintiff in whose favour
the injunction had been granted resisted the appeal.
In this case the Delhi High Court held that such kind of anti-suit injunction and
powers vested in the Court are to be used sparingly as directed by the Hon'ble
Supreme Court of India and with utmost diligence. The injunction in anti suit is not
merely inconvenient to the parties to the proceedings but also amounts to
interference with the process of administration of justice of the foreign court. The
argument that in order to maintain an appeal against an interlocutory order, the
same must either tantamount to a decree within the meaning of Section 2 of the
CPC or be an appealable order under Order 43 Rule 1 read with Section 104 of the
CPC must therefore be rejected. It follows that even when an interlocutory order
may not tantamount to a decree or be appealable under Order 43 of the CPC, an
appeal would be maintainable if the same amounts to a judgment within the
meaning of Section 10(1) of the Delhi High Court Act and Clause 10 of the Letters
Patent as applicable to this High Court.
Further, in support of the maintainability of appeal, appellant relied upon the
decision of the Allahabad High Court in the case of “ Zila Parishad, Budaun and
Ors. Vs. Brahma Rishi Sharma.”385
The Allahabad High Court supported the availability of the remedy of appeal
against the order of grant of ex-parte interim injunction and the following
observations are relevant:
“An injunction interferes with substantial and substantive rights of a person. The
object of Rule 1 (r) of Order 43 is to provide a remedy for improper or invalid
interference with his rights. If one restricts this rule to only final orders of
injunction, the object of the rule will not be fully achieved. For instance, where a
grievance of the party affected by the ex-parte interim injunction is that the court
granting it has also acted from bias against him it is meaningless to force him to go
to that very court in the first instance. It shall only prolong the suspension of his
384 IRL (2009) 111 Delhi 22. 385 AIR 1970 AII 376.
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valuable rights. In many cases he may get no relief in the end. Similarly, where the
order of injunction is founded on an Act challenged as unconstitutional, appeal
may yield quicker relief.
The language and the object of Rule 1(r) of Order 43 and the scheme to Rule 1 to 4
of Order 39 show that an appeal also lies against the ex-parte order of injunction.
As soon as an interim injunction is issued and the party affected thereby is
apprised of it, he has two remedies:
(1) he can either get the ex-parte injunction order discharged or varied or set aside
under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided
for under Order 43, Rule 1(r) or, (2) straightaway file an appeal under Order 43,
Rule 1(r) against the injunction order passed under Rule 1 and 2 of Orders 39
C.P.C. It is not unusual to provide for alternative remedies. For instance, when an
ex-parte decree is passed against a person, he has two remedies: either he may go
up in appeal against the ex-parte decree or he may seek to get the ex-parte set aside
by the same court.”
The Bombay High Court in Brooke Bond India Ltd. Vs. Dinkar Landge,386 held
that an order granting ad interim ex parte injunction is appealable. Also in the case
of Rajesh Batra vs. Grandlay Electricals India,387 looking to the trend of judicial
opinion, it was clearly laid down:
(I) An order of injunction whether ex-parte or bi- parte is appealable under Order
39 Rule 1 (r) of the CPC;
(II) The scope of hearing in such an appeal is limited. Ordinarily the appellate
Court would not take into consideration any new material. The hearing would be
confined to finding out whether the original Court was justified or not in granting
the ex-parte order of injunction on the material available before it.
(III) If the appellate Court may concur with the view taken by the original Court
then the appeal would be dismissed leaving it open to the appellant to contest the
ex-parte order of injunction before the original Court. If the appellate Court may
form an opinion that on the material available before original court, the grant of
386 [1984] 56 Comp Cas 1(Bom) AIR 1976 Bom 222. 387 1997 I AD (Del) 377.
591
injunction ex-parte cannot be sustained then the appellate court would set aside the
ex-parte order of injunction leaving it open to the parties to appear before original
court and have a hearing bi-parte on the grant or otherwise of the order of
injunction.
(IV) If the appellate Court forms an opinion that on the material available on
record of the suit before the original court an injunction not in the form granted by
the original court but in a different form could only have been granted ex-parte
then it may substitute its own order in place of the original order (under appeal)
leaving it open to the opposite party to contest the issue as to grant of injunction by
parte before the original Court.
Further in another landmark case Modi Entertainment Network and Anr. vs.
W.S.G. Cricket Pte. Ltd.388 the Apex Court held that it had all the powers
necessary to injunct a party from pursuing a case abroad if the suit shall be
“vexatious and oppressive” for the other party as was the situation in this particular
case.
7.9.8 TRESPASS
The principles pertaining to laws of trespass in India have been taken from the
English Jurisprudence. Therefore the English law related to the same shall be
enunciated in the following discussion.
7. 9.8.1 Meaning of 'Trespass'
Trespass is a well-known term in torts, though it is capable of different meanings.
It includes
(a) Trespass to land, i.e., trespass quare clausum fregit which means alleging that
the plaintiff's close has been broken;
(b) Trespass to person, such as assault, battery or false imprisonment; and
(c) Trespass to goods, i.e., trespass de bonis asportatis which is trespass by
transportation.
388 Appeal (Civil) no. 422 0f 2003, decided by the Supreme Court on 21/01/2003.
592
A trespass is a continuing wrong and in a case of placing something on the
plaintiff's land, the trespass will be deemed to continue so long as the object lies on
the plaintiff's land. In Indian law, it has been held that allowing one's cornice to
project over another's land is a trespass. Where a defendant planted some tress on
the plaintiff's land, it has been held that the plaintiff might sue for the removal of
the trees, which constitute a trespass.
In such cases, in order to be actionable as a trespass, the injury must be direct,
within the meaning of the distinction between direct and consequential injuries,
which has been already explained as determining the line between trespass and
nuisance. To throw stones upon one's neighbour's premises is the wrong of
trespass; to allow, stones from a ruinous chimney to fall upon these premises is the
wrong of nuisance.
Trespass, whether by way of personal entry or by placing things on the plaintiff's
land may be continuing and give rise to actions de die in deim so long as it lasts.
Salmond observes:
“It is well-settled, however, that the same characteristic belongs in law even to
those trespasses which consist in placing things upon the plaintiff's land. Such a
trespass continues until it has been abated by the removal of the thing which is thus
trespassing; successive actions will lie from day to day until it is so removed; and
in each action damages (unless awarded in lieu of injunction) are assessed only up
to the date of action.”
7. 9.8.2 Injunction to Restrain Trespass
In India, it has been held that in cases of trespass on immovable property, money
compensation is not an adequate relief. It is the non-availability of an adequate
remedy at law that clothes the court of equity with the jurisdiction to grant an
injunction.
A trespasser is not entitled to an injunction as against the true owner. Further, ex-
parte injunctions cannot be granted without recording reasons. The court should
not become a part of a design for a trespasser to take an unfair advantage.
Where the questions of law and of fact are serious and where the injury resulting to
593
the plaintiff from being denied a preliminary injunction would be great, while the
injury to the defendant resulting from the granting of the writ would be
insignificant, a preliminary injunction may be allowed to retain matters in status
quo, until a final determination. Kerr observers:
“The jurisdiction of the court by injunction in cases of trespass is in aid of the legal
right. If the right of law is clear and the breach clear, and serious damage is likely
to arise to the plaintiff if the defendant is allowed to proceed with what he is doing
or threatens to do, and injunction will be granted pending the trial of the right.”
Further, the language of S. 40, Specific Relief Act, makes it clear that it is for the
plaintiff's to claim damages in lieu of an injunction. If she does not so claim, the
question of awarding damages does not normally arise. Moreover, an injunction in
a case of clear trespass over another's land can be refused and compensation
awarded only when the equity is in favour of the defendant, which will mean that
the defendant must establish special circumstances for not issuing an injunction.
7. 9.8.3 Protection of Possession
Connotation of Possession
As a trespass is an interference with possession, one has to consider what this
possession connotes. Possession is of two kinds: possession in fact and possession
in law. According to Clerk and Lindsell:
“Possession means the occupation or physical control of land. The degree of
physical control necessary to constitute possession may vary from one case to
another, for by possession is meant possession of that character of which the thing
is capable. Possession is however, not necessarily the same thing as occupation or
use. It may mean a physical control, sometimes called a de facto possession or
detention, or it may mean legal possession, called de jure possession, which may
exist with or without a rightful origin.”
Possession and Ownership
Possession is the de facto exercise of a claim; ownership is the de jure recognition
of one. Ownership is an absolute right in rem over a determinate property.
594
The orbit, or scope, of the right of ownership may be arranged as under:
(i) Possession
(ii) Enjoyment
(iii) Disposition
The right of an owner of a property is that it shall not be taken away from him,
except in accordance with law, or impaired in value, or his title to it be weakened.
Colour of Title or Dispute of Title
Where the title or right of possession is in dispute between two parties, one of
whom is in actual possession under a claim or colour of right, an injunction will
not, as a rule, lie to transfer possession to the other party. A person seeking an
injunction must be in possession in his own right.
But one must note that an injunction is not the proper remedy for the recovery of a
personal property. Thus, an interlocutory injunction which restrains a defendant
from cutting timber or disposing of wood on a land in his possession, the title to
which is in dispute, transfers neither the title nor the possession of the timber. The
general rule is that, when the title to a personal or movable property of an ordinary
character is in dispute and the title asserted by the respective parties is a strictly
legal title, the remedy of the party out of possession is at law by an action of
replevin and not by a suit in equity for an injunction to establish his ownership.
Kerr observes:
“A trespass may be justifiable, if in the circumstances, it was reasonably necessary
for the preservation of the defendant's property from a real and imminent danger,
even though it subsequently appears that the defendant's act was not in fact,
actually necessary.”
Restoration of Possession
Although the jurisdiction by equity of mandatory injunction to compel the
restoration of the matter in status quo is sparingly used, since, if the trespass
consists in the erection of structure, the remedy by ejecting is plain, yet a trespass
595
irreparable in its character and of a continuing nature may be restrained by a
mandatory injunction, thus restoring things to their original condition. In general,
where a defendant has gone on without right and without excuse, in an attempt to
appropriate the plaintiff's property, or to interfere with his rights, and has changed
the condition of his real estate, he is compelled to undo, so far as possible, what he
has wrongfully done affecting the plaintiff and to pay damages. A person may be
restrained by a mandatory injunction from permitting a building which he had
erected on the roof of a neighbour's house, to remain there.
7. 9.8.4 Indian Law
In India, section 39 of the Specific Relief Act of 1963 governs the granting of
mandatory injunctions. A case of a mandatory injunction against a trespass is
covered by this illustration. Though relief by way of a mandatory injunction is
discretionary, where there is a continuous violation of rights or where the damage
is of a serious character, even a mandatory injunction can be granted. In cases of
trespass on immovable property, money compensation is not considered a proper
remedy. But, a mandatory injunction being in the nature of an equitable relief, in
the discretion of the court, it would not ordinarily be granted if there has been a
long delay in the filing of the suit for the relief. Such relief cannot be granted
where a zamindar sues for the demolition of certain huts, which had been put up
four to eight years prior to the suit. It is well-settled that if a stranger builds on the
land of another, although believing it to be his own, the owner is entitled to recover
the land, unless there are special circumstances amounting to a standing by so as to
induce the belief that the owner intended to forget his right or to acquiesce in the
building on the land. The trespasser is, however, entitled to remove the building.
Where the defendant built a wall on the plaintiff's land and thereby committed a
trespass, the plaintiff, in a suit brought for that purpose, obtained damages for
trespass and a mandatory injunction directing the defendant to remove the wall
within two months, and to restore the plaintiff's premises to their former condition.
On a construction of s 38 of the Specific Relief Act, the Supreme Court ruled that a
trespasser cannot claim an injunction against the true owner. In the case of Abdul
Hossain v Ram Charan389 it has been held that where the footings of a wall have
389 (1911) ILR 38 Cal 687.
596
been in existence for a great length of time, it is fair to presume that they were not
placed there wrongfully and that they were placed within the limits of the land
belonging to the owner of the wall. Where a trespass by way of building a wall on
the footings of the plaintiff's wall has been carried out, not as the result of long and
continuous work, but of work completed quietly and promptly, and where the
trespass is one which still continues and will continue so long as the wall is
permitted to remain in its present site, and where there has been no delay or
acquiescence on the part of the plaintiff, who instituted the suit soon after the
completion of the wall, the proper remedy is by way of a mandatory injunction,
and in accordance with what is provided in s 55, Specific Relief Act (Section 39 of
Specific Relief Act 1963), it will be right to compel to defendant to pull down so
much of the wall as is an encroachment on the plaintiff's land.
A mandatory injunction was granted by the High Court of Bombay to pull down
even a substantial building, when erected on a portion of a highway, after notice
from the plaintiff. But in an earlier case of the same High Court, it had been held
that if the building complained of has been completed, the court would be reluctant
to make an order for the removal of the building already finished at some
considerable cost and trouble, unless it is clear that material damage would occur.
But the rule stated in the last case is confined in its application to cases in which
the defendant does not knowingly commit the trespass where; however, a
dishonestly of purpose or knowledge of the trespass can be brought home to the
defendant before he completes the building, the case is one for an injunction and
not for compensation. Where one of the tenants-in-common of wall, excludes the
other from the use of it by placing an obstruction upon it, the only remedy of the
excluded tenant is the removal of the obstruction.
A mandatory injunction should not be granted against a trespasser compelling him
to come on the land on which he had trespassed to remove an encroachment made
thereon by him.
7. 9.8.5 Limitation for Suit for Injunction for Trespass
Article 113 of the Indian Limitation Act 1963 (36 of 1963), applies to a suit for a
perpetual injunction, directing the defendants to restore to its original condition,
certain land encroached upon by them and the plaintiff has to prove that the
597
encroachments were made within six years before the suit. In this case, Rattigan J,
observed:
“Be this as it may, the question is whether the present suit has been instituted
within six years from the date when the right to sue accrued, as laid down in art
120 of the Indian Limitation Act. Even if the encroachments took place only a few
years before the suit, the case for the plaintiffs should be greatly weakened, and it
might well be argued that the plaintiffs, who had patiently allowed such
encroachments to take place and had not taken action within a reasonable time, had
not suffered such injury as would justify the court in interfering on their behalf
under section 54 (now section 38) of the Specific Relief Act.”
7. 9.8.6 Trespasser's Right to Obtain Injunction
A trespasser has no equities in his favour, and is not entitled to a prohibitory
injunction against the owners, unless he acquires ownership rights by long
possession. Where the possession of such a person has been peaceful, long,
anterior or accomplished and he has been in settled possession of the property with
no right to remain in possession or has acquired ownership by adverse possession,
he cannot be ousted or dispossessed by the owner of the property, except by a
recourse to law. No fault can, therefore, be found with a trial court's direction to
maintain status quo till the final decision of the case by it.
Where a trespasser institutes a suit for an injunction against the state, in relation to
forest area, principles of ordinary law relating to injunctions as between private
individuals, cannot be invoked, since such suits are not to be encouraged.
7.9.9 STRIKE
7. 9.9.1 Strike Injunctions and Common Law
Industrial action has had a perpetual tiff with the common law as the latter views
the former as a tortious act and a breach of contract, when not also, well into the
19th century, a crime. The parliament of UK has had a vacillating attitude towards
industrial action in general and in particular strikes. Over the years the parliament
in UK has sought to introduce several statutory provisions for the protection of
workers indulging in strikes, as well as for the unions organising them, there is
598
hardly any doubt that over the past three decades its general thrust has been in the
direction of an continuous curtailment of the freedom of workers to withdraw their
labour when a trade dispute occurs. Things have come to this in various ways, but
undoubtedly one of the most unique limitations in Britain has been put forth by the
introduction by the Trade Unions Act 1984, and its numerous successive
amendments,390 of several procedural and balloting requirements, whose punctual
satisfaction by the organising unions is a precursor to the legality of the
contemplated strike action.
7. 9.9.2 Position in U.K.
In 2009 and 2010 a string of decisions supported the grant of injunctions against
strikes. The trade unions raised an objection that these were based on the
unnecessarily complex balloting technicalities of the Trade Union & Labour
Relations (Consolidation) Act 1992 (TULR(C)A 1992). The origin is the case of
Metrobus Limited v Unite the Union.391 Unite had failed to provide the
“explanation” required by TULR(C)A 1992 as to how it arrived at the figures it
provided for the numbers, categories and work places of its members set out in its
notices of ballot and of industrial action. The employers were successful in
obtaining a strike injunction from the High Court. No revisions were made to
TULR(C)A 1992. The judgment in this case said that there was that the union had
given the employer insufficient evidence about the result of the ballot so that it was
unable to make the preparations for the industrial action. The Court of Appeal
upheld the injunction stating that the requirements of TULR(C)A 1992 were not in
contravention of Article 11 of the Convention and that a balance had been struck
between the rights of workers and their trade unions and those of employers.
At first glance it does seem harsh that an injunction was upheld over an inadequate
explanation of the figures about the numbers categories and work places of trade
union members. The Court of Appeal held though that the obligation was not
difficult to comply with and it was necessary for an employer to know how reliable
the information it receives is.
390
Cf. B. Simpson, ‘Strike Ballots and the Law: Round Six’ (2005) 34 Industrial Law Journal,
331. 391 [2009] IRLR 851
599
Further, in the December 2009 British Airways case, the High Court issued an
injunction because some Unite members who were employed by British Airways at
the time of the ballot would have no longer been employed at the time when the
strike was on, as they had accepted voluntary redundancy and were hence leaving
British Airways. The number of voluntarily redundant staff that was wrongly
included in the ballot approximately numbered 1,003 individuals. However Cox J
took to strict interpretation of the TURL(C)A 1992 s. 227 ‘Entitlement to vote’
requirements to decide the matter.
7. 9.9.3 Effect of Judgments
The final outcome may have been positive, it should not overshadow the fact that
recently English courts have taken a far more activist and stern stance in
interpreting the procedural obligations narrowly that unions are meant to satisfy
before being able to call legal, and protected, industrial action. Clearly, these
procedural impediments arise out of statute but when confronted with various
interpretative alternatives English courts typically choose the most restrictive and
limiting alternative. So for example, one now knows from Metrobus that the
statutory obligation to inform employers of the outcome of the ballot ‘as soon as is
reasonably practicable’, effectively means informing them on the same day the
ballot result is known. This type of judicial activism would be problematic in and
of itself, certainly to the extent that it detracts from legal certainty, and renders the
exercise of lawful industrial action unreasonably difficult as well as unpredictable.
7. 9.9.4 Position in India
Article 19 of the Constitution guarantees freedom in certain matters to all citizens.
Article 19 (1) (a) confers the freedom of speech and expression. One of the facets
of this right is the freedom to protest in a peaceful manner by way of holding
dharna or demonstration. Article 19(1)(b) preserves the right to assemble
peaceably and without arms. The right to form associations and unions is conferred
by Article 19(1)(c). The rights guaranteed by Article 19 are not unfettered or
unbridled.392 The exercise of the rights is subject to reasonable restrictions imposed
by the State.393 The right to freedom of speech and expression may be restricted in
392
North Delhi Power Ltd. v. Erstwhile DVB Employees Union, Delhi High Court, CS (OS)No. 629/2004, Order dated 29.5.2004.
393 Reserve Bank of India v. Ashis Kusum Sen 73 CWN 388.
600
the interest of sovereignty and integrity of India, security of State, friendly
relations with foreign States, public order, decency, morality or in relation to
contempt of Court, defamation or incitement to an offence.394
The right to assemble peacefully and without arms may be curtailed in the interest
of sovereignty and integrity of India or public order.395 The State may regulate the
right to form association and unions in order to preserve the sovereignty and
integrity of India, public order and morality.396 In the enjoyment of rights
conferred by Article 19, it is not permissible to interfere with the rights possessed
by others.
The exercise of such right and restrictions thereon has been a subject of judicial
interpretation in a plethora of cases where workers and employees of an
organization have threatened to hold demonstrations and dharna to the prejudice of
the management and administration.397 In this behalf, the Hon'ble Supreme Court
has held that nobody has a fundamental right to hold meetings in government
premises, even if it is the most convenient place to do so. It has been cautioned that
the freedom of speech and to assemble peacefully comes to an end as soon as it
intervenes in the right of somebody else to hold his property.398 It has come to be
crystallized by judicial pronouncements that the right to hold demonstration and to
burn effigy cannot be extended to warrant interference in the exercise of rights by
others including the employer of the workmen.399 In such cases ex parte injunction
can also be granted.400 The trade union representing the employees has no right to
cause obstruction in ingress or egress or staging demonstration since for redressal
of grievances, they have to take recourse to the forum provided under the law
instead of indulging in such activities.401 Therefore in such a case, injunction shall
be granted to protect the interest of the employer.402
Strike per se is not forbidden. It shall, however, not interfere in the smooth
394 Article 19 (2), Constitution of India. 395 Article 19 (3), Constitution of India. 396 Article 19 (4), Constitution of India. 397
Swadeshi Industries Ltd. v. Its workmen AIR 1964 SC 1258; Dalmia Cement Ltd. v. Narain Dass AIR 1939 Sind 256.
398 Railway Board v. Niranjan Singh AIR 1969 SC 966.
399 Duplex Printing Press v. Deering 254 US 143; Truax v.Corrigan 257 US 312.
400 Crane Co. v. Snowden 112 Kan 117.
401 Kitchen Co. v. Electrical Workers 91 W Va 65.
402 Vidya Sagar Institute of Mental Health and Neuro Sciences v. Vidya Sagar Hospital Employees
Union 2006 ILR 283.
601
working and shall not impede the ingress or egress of the organization.403 There is
no right vested in the employees to hold demonstration in the premises of their
office and they can also be restrained from holding demonstration nearby, if it
affects others' rights.404 The right to do a business or trade is a property right which
is entitled to protection against infringement and interference by others.
A person has no right to hold demonstration and to burn effigy in a manner as
would tantamount to an infringement of the fundamental rights of others
guaranteed by Article 19 of the Constitution of India.405 Yet every person is well
within his right to hold demonstration and to burn effigy, provided this is done
without causing any inconvenience, obstruction or hindrance to others.406 By the
said activities, no person can be permitted to create any nuisance on public
premises or in the premises belonging to others.407 Courts have repeatedly
restrained holding of demonstrations or burning of effigy in close proximity of the
office of the organization concerned.408 Reasonable restrictions have been imposed
on holding of demonstrations or from burning effigy. These restrictions are not to
be so wide as to scuttle the very purpose of the demonstration as a mark of protest.
Amongst the various restrictions, often a limit has been imposed on the area upon
which the demonstration shall not be carried out. With regard to fixing this
distance, it has been held that there cannot be a strait jacket formula for fixing the
distance within which the agitating employees should be restrained from
demonstrating. The distance should depend upon a variety of factors, such as a
topography of the area,409 the approach and exit from the building, the proximity
and existence of other establishments and the nature of the industry and finally the
individual facts and circumstances of the case.410
Therefore, on the basis of above discussion it can be stated that while the right to
carry on any occupation, trade or business is a fundamental right recognised by
Article 19(g) of the Constitution of India, right to strike is not a fundamental right
at all. Yet, the latter has attained recognition by Courts of law as a legitimate
403
Bharat Sanchar Nigam Ltd. v. Sanchar Nigam Executives Association 115 (2004) DLT 87. 404
Press Trust of India Employees v. Press Trust of India 119 (2005) DLT 266 (DB). 405
Indian General Navigation and Railway Co. v. Their Workman AIR 1960 SC 219. 406
P.C. Roy & Ors. v. R.F. Labour Union AIR 1964 Cal 221. 407
Indian Express v. Nagarajan (1988) Lab IC 1067. 408
Management of New Jamheri Khas Collery v. Central Govt. Industrial Tribunal AIR 1960 Pat 543.
409 Maruti Udyog Ltd. v. Maruti Udyog Employees Union 98 (2002) DLT 673.
410 Asian Hotels Ltd. v. Asian Hotels Employees Union 82 (1999) DLT 91.
602
weapon in the armoury of Labour. Though the right to strike as a mode of redress
of legitimate grievances of the workmen is recognised in industrial jurisprudence,
it is circumscribed by the provisions of the Industrial Disputes Act, 1947. It has to
be exercised only after compliance with the requirements is prescribed in the Act.
Any strike in contravention of the provisions of the Act is illegal and penalty
therefore is provided in the Act. It provides additional protection to public utility
service by imposing certain conditions for invoking the right to strike. The relevant
part of the Section is as follows:
Section 22(1) : "No person employed in a public utility service shall go on strike in breach of contract - (a) Without giving to the employer notice of strike, as hereinafter provided within six weeks before striking; or (b) Within fourteen days of giving such notice; or (c) Before the expiry of the date of strike specified in any such notice as aforesaid; or (d) During the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings."
It is obvious that the Legislature wanted to provide safeguard to the running of
public utility services in order to obviate the inconvenience to the general public
and society at large. The right to strike is not taken away but it should be exercised
after fulfilment of certain conditions. The purpose is to prevent a few workers from
holding the general public at ransom by indulging in lightning strikes.
In Coimbatore Periyar District Motor Transport Munnetra Sangam v. Messrs. Siva
Kumar Transport etc.,411 a writ petition was filed for issue of mandamus against
two police officials directing them to give police protection for taking out the
petitioners buses from the garage and helping them to run on their respective
routes. It was alleged that in violation of a settlement under Section 12(3) of the
Act, the workers went to strike and prevented the petitioners from taking out the
buses and plying them on their routes. The writ petition was allowed by a single
Judge and an appeal was filed by the workers' union after obtaining leave to appeal
as the union was not a party to the writ petition. The argument advanced on behalf
of the appellant was that the effect of the strike resorted to by the workers would
be weakened if the employers were allowed to ply the vehicle on the respective
routes and as there was no allegation of violence or indulgence in unlawful acts,
police protection ought not to be given. Rejecting the said contention and 411 99 L.W. 409.
603
distinguishing the decisions cited by the appellant's counsel, the Division Bench
dismissed the appeal after laying down the law in the following terms:
"The above decisions cannot be taken as laying down any abstract proposition of
law without any relation to the facts that in every case of strike, the workers are
entitled to prevent the removal of the goods, or ingress or egress of raw materials
or other products, or that the workers are entitled to ‘gherao’ and prevent people
from entering or coming out of the factory or the industrial premises. The ratio of
the Judgments, in our opinion, is that if the preventing of removal of the goods
would involve only the monetary interest of the management and no public interest
is involved, the Court may consider not helping the management and not
interfering in the dispute by way of any injunction orders. However, if the facts
and circumstances are such that it is just and necessary to permit the goods to be
removed in order to prevent any waste of loss of goods, or that the acts in relation
to which injunction is prayed for will have no effect on public interest, then,
injunction against interference with removal of goods shall not be granted. If not
granting an injunction will tantamount to affecting public interest, the court is duty
bound to give such protection as in needed. Therefore, each case will have to
depend on facts.
There is no dispute that the first respondent in this case is a bus operator and is
plying its buses between Tiruppur and Satyamangalam and between Tirupur Bus
stand and Cheyur in Triupur town service. Having regard to the fact that in this
case not only the interest of the non-striking workmen but also the interest of the
public are involved, and if the route buses are not permitted to ply on the routes,
the public will be inconvenienced, no injunction against taking buses shall be
granted. We are satisfied that the public interest outweighs in this matter. Not
permitting the buses from being taken out from the garage and put on the roads
would certainly inconvenience the public. The alternative suggested by the learned
counsel for the appellant that if there is such a great inconvenience and prejudice
caused to the public, the Government may step in and take appropriate action, in
our opinion, is not an answer and cannot be a justifiable ground for preventing the
buses from being taken out of the garage and put on the road."
604
In Sri Rama Vilas Service Ltd., and another v. Simpson & Group Companies
Worker's Union and another, it was held:412
"If cessation of work is the result of strike, it is not possible to lend the support of
this Court to stultify the result of such cessation of work resorted to by the
workmen. The very effect of the strike resorted to by the workmen will be watered
down if the managements, either by themselves or through their customers, are
permitted to remove the goods, either manufactured by the managements or
coming into the custody of the managements in the course of their trade. If the
customers of the managements are to be permitted to remove the goods, by
themselves without the aid of the labour, that would tantamount to rendering the
strike inefficatious, and to achieve that purpose, this Court should not lend its
hands. It could only be a matter of conciliation between the managements and their
labour."
In Rohtas Industries v. Rohtas Industries Union the Apex Court noted that:413
"The inevitable by-product of combination for cessation of work may be loss to the
management but the obvious intendment of such a collective bargaining strategy is
to force the employer to accept the demand of the workers for betterment of their
lot or redressal of injustice, not to inflict damage on the boss. In short, it is far too
recondite for an employer to urge that a strike, albeit illegal, was motivated by
destruction of the industry. A scorched earth policy may, in critical times of a war,
be reluctantly adopted by a people, but such an imported motive is largely
imaginary in strike situations. However, we are clear in our minds that if some
individuals destroy the plant or damage the machinery willfully to cause loss to the
employer, such individuals will be liable for the injury so caused. Sabotage is no
weapon in workers' legal armoury."
7.9.10 ARBITRATION PROCEEDINGS
Before the passing of the Indian Arbitration Act, 1940 the usual practice of the
Courts was to issue an injunction under Section 54 of the Specific Relief Act, to
restrain arbitration proceedings when a suit was instituted challenging the validity
412 1979-II LLJ 284 at 289. 413 1979-II-LLJ 284 at page 287.
605
of the contract of reference.414 But no injunction should issue when the contract is
merely denied. The Court will not grant an injunction restraining proceedings
which are null and void, although the same may be vexatious.415 After passing of
the Arbitration Act, 1940, the procedure prescribed by Sections 32 and 33 is only
by way of an application. The provisions of the Specific Relief Act will prima facie
not apply as they apply to suits only. The civil justice committee suggested in para
14 of their report, that the granting of the injunction should either be totally
prohibited or its practice should be confined to the courts of the presidency towns
or other commercial centres. The framers of the arbitration act did not approve of
these suggestions and left the matter open to the discretion of the Court. The
abolition of the remedy of a suit under the Arbitration Act, 1940, does not affect
the practice of granting either an interlocutory or a perpetual injunction. The reason
is that a power has been given to the Court by Clause 4 of the Second Schedule to
the Act and that such injunctions were not granted, strictly speaking, under the
Specific Relief Act.416 After the enactment of the Arbitration and Conciliation Act,
1996, the grounds for intervention of Court have been further restricted. Courts
have been permitted to interfere only in the matters specified in the said Act. A
Court may restrain parties from proceeding to arbitration where a suit has been
brought to impeach the instrument containing the arbitration clause on the ground
of fraud or mistake or other similar reasons and where the arbitrator has
misconducted himself.417 Injunction will not be issued when the only apprehension
of the applicant is that the arbitrator may not deal with matters which ought to be
dealt with together with those dealt with in a pending suit.418 An enforcement of an
arbitration clause even though the arbitration proceedings may later turn out to be
futile for want of jurisdiction or other reason is not a “breach of obligation” within
the meaning of section 38 of Specific Relief Act, 1963.419 The Court will not
restrain parties from proceeding to arbitration where the proceedings sought to be
restrained are merely futile and will do no injury to the applicant.420 When
arbitration proceedings were challenged on the ground that the contracts were of
gambling and wagering character, injunction was refused on the ground of
414
Sardar Mull v. Agarchand (1919) 23 CWN 811. 415
Baijnath v. Mansukh Rai (1919) 23 CWN 258. 416 C.M. Row, Law on Injunctions, (Ed. K. Swami), Lexis Nexis Butterworths, 8th Edn., 2003. 417
Sardarmull v. Agar Chand 52 IC 588. 418
Firm Attar Singh v. Vishan Das ILR 18 Lah 345. 419
Baijnath v. Mansukh Rai 23 CWN 258. 420
Kuverji v. David Sasson & Co. AIR 1927 Sind 182.
606
equity.421
The Court, in which validity or existence of a contract is challenged on any
ground, can grant injunction to restrain arbitration proceedings until the question is
determined by the Court.422 Courts have powers to grant temporary injunction even
when a reference has already been made to the Arbitrator. Where proceedings for
appointment of arbitrator are still pending in the Court, no other question can be
raised in such proceedings and therefore the application for appointment of
receiver and ad interim injunction is not legally maintainable. Powers under
Section 41(b) read with Schedule II of the Arbitration Act can be exercised by
Civil Court in appropriate cases for the purpose of and in relation to arbitration
proceedings. When no step in regard to referring the dispute to arbitrators has been
taken, the application for injunction is not maintainable.423 The Courts should be
extremely cautious in granting interim relief in cases where the venue of arbitration
is outside India and both parties are foreigners.424 English courts have no
jurisdiction in arbitration proceedings to grant an injunction where the parties have
chosen a foreign seat of arbitration. This is without prejudice to the inherent
jurisdiction of Court to stay any proceedings brought before it in breach of
agreements to settle disputes by an alternative method.425 The Court's discretion
should be exercised in exceptional cases and when there is adequate material on
record to show that the act sought to be restrained is likely to render the entire
arbitration infructuous by frittering away the properties or funds before or during
the pendency of arbitration proceedings or even during the interregnum period
between the date of award and its execution.426
Where parties have agreed, under a non-exclusive jurisdiction clause, to approach a
neutral foreign forum and be governed by the law applicable to it for the resolution
of their disputes arising under the contract, ordinarily no anti-suit injunction will
be granted in regard to proceedings in such a forum conveniens and favoured
forum as it shall be presumed that the parties have thought over their convenience
and all other relevant factors before submitting to the non-exclusive jurisdiction of
421
Baijnath v. Mansuwrai 23 CWN 258. 422 Sardar Mull v. Anarchand 23 CWN 811. 423
Ramdas Kathan & Co. v. Atlas Mills Co. Ltd. AIR 1931 Bom 151. 424
Dressu Rand v. Bindal Agro Chem (1994) 1 Arb. LR 506. 425
Ram Kissen Jayodoyal v. Pooran M 411 ILR 47 Cal 733. 426
Olex Focas Pty. Ltd. v. S.P. Verma AIR 2000 Del 161.
607
the court of their choice which cannot be treated just as an alternative forum.427
The right to have the dispute settled by arbitration has been conferred by
agreement of parties and that right should not be deprived of by technical pleas.
The court must go into the circumstances and intention of the party in the step
taken. The court must examine whether the party has abandoned his right under the
agreement.428
7.9.11 PREVENTION OF BREACH OF CONTRACT
In India, contracts are governed by the general rules contained in the Contract Act
and by other provisions which apply to particular forms of contract embodied in
special statutes such as the Partnership Act, 1932, Sale of Goods Act, 1930 and
Transfer of Property Act, 1882. Section 38 of the Specific Relief Act, 1963, which
corresponds to Section 54 of the Specific Relief Act, 1877 lays down that a
perpetual injunction may be granted to prevent breach of an obligation. An
obligation may arise from a contract.429 A contract, to be enforced by an
injunction, must be precise, certain and devoid of ambiguity.430 Injunction will be
refused when the contract in question is unenforceable431 or against public
policy432 or is of doubtful propriety.433 An injunction will not be issued in the case
of contracts which cannot be specifically enforced or when breach of the contract
can be adequately compensated by damages.434 Injunction cannot be granted where
there is no privity of contract435 between the parties or where the plaintiff has
himself failed to perform his part of the contract.436 In a contract of personal
service, injunction would not be granted to restrain the breach of a negative
stipulation where the effect of doing so would be to compel the defendant to
specifically perform the contract.437 This is based on the principle that the Court
will not do indirectly that which it cannot do directly.438 In a suit by a person for a
declaration that he was the managing director of the defendant company and was
427
Modi Entertainment Network and another v. W.S.G Cricket Pte. Ltd. (2003) 4 SCC 341. 428
Sadhu Singh Ghuman v. Food Corporation of India and Ors. (1990) 2 SCC 68. 429
Madhub v. Raj Kumar (1875) 14 BLR 76. 430
Koylash v. Taring (1884) ILR 10 Cal 588. 431
Timken v. Wisnar Estates 95 SO 711. 432
Schill v. Remington Pitman 31 A 2D 467. 433
Woodword v. Battersea 75 JP 193. 434
Union Construction Co. v. Chief Engineer AIR 1969 All 72. 435
Puneet Plastic Industries v. Rawat Hosiery AIR 1985 Del 257. 436
Lal Bhai v. Pandya AIR 1966 Guj 189. 437
Vidya Bhawan Society v. Vishwas (1988) 1 Raj LW 640; Sarp v. Harisson (1922) 1 Ch 511. 438
Satraji Firm v. Madho Singh AIR 1927 Mad 604.
608
wrongfully dismissed, and for an injunction restraining the company from
preventing him from discharging his duties, it was held that no injunction could be
granted because an agent cannot be imposed on an unwilling principal.439 Where
charter-party has been actually completed, the Court will by injunction, prevent an
employment of the ship inconsistent with the terms of the charter-party. But where
there is only an agreement for a charter-party, no such injunction will be
granted.440 Before a restraint imposed by a negative covenant can be forced by an
injunction, it must be ensured that it is in the interest of contracting parties as well
as for the welfare of the public.441 In order to resist an action for specific
performance, it is not necessary to hold out the agreement as void but is sufficient
if the stipulation is voidable.442 At an interlocutory stage, injunction has to be
refused on the ground of comparative convenience when the right is not clear and
the nature of the contract whether concluded or not is in dispute, as otherwise,
granting of injunction would do more injury to the opposite parties than its refusal
would occasion to the party seeking injunction.443 Where the contract is disputed,
granting of injunction on an interlocutory application would virtually be granting
decree of specific performance without trial.444
7.10 TESTING THE UTILITY OF INJUNCTIONS AS A TOOL OF JUSTICE
Mahatma Gandhi said, “There is a higher court than courts of justice and that is
the court of conscience. It supercedes all other courts.” Hence, a remedy that is
founded on conscience cannot be outrightly discounted and deserves a fair analysis
of its strengths. In order to assess the efficacy of the law of injunctions as an
instrument of justice, it has to be seen whether it measures up to the touchstones of
the attributes of a just law, elicited earlier in this chapter.
The element of conscience is not only fluid, but also elevates the nature of the
remedy to considerations which are ethical and essentially within the domain of
morality. It makes the equity judge a court of conscience, driven by equitable
principles overriding the letter of the law. So much so that John Selden remarked:
439
Gulab Singh v. Punjab Zeminder Bank AIR 1942 Lah 47. 440
Abdul Alla Rakhi v. Abdul Bacha ILR 6 Bom 5. 441
Ambu Bhai v. Gujrat Mazdoor Panchayat (1985) 1 Guj LR 179. 442
Hindustan Antibiotics Ltd. v. Ramdas 1977 Mah. LJ 32. 443
Graigson v. Udoy Dev ILR 17 Cal 223. 444
Gujova v. Neelkanth AIR 1958 Bom 202.
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‘Equity is according to the conscience of him that is Chancellor, and as that is
larger or narrower, so is equity. ‘Tis all one as if they should make the standard for
the measure we call a foot, a Chancellor’s foot; what an uncertain measure would
this be? One Chancellor has a long foot, another a short foot, a third an indifferent
foot: ‘tis the same thing in a Chancellor’s conscience.’445
Before investigating into the impact of equity conditioning the discretion in award
of injunctions, it would be apt to refer to a discourse. The following is a passage
that beautifully projects the need for flexibility to enhance the efficacy of the law
as a tool to advance justice and to prevent unjust results flowing from the strict
interpretation of the law. The passage is taken from the book ‘Statesman’ authored
by Plato and translated by Benjamin Jowett. That the book was written as early as
360 B.C.E. shows that the concern for humane administration of laws is not new
and remained in public domain since the very growth of civilization. The passage
quotes a conversation between Young Socrates and a Stranger, and reads as
follows:
Stranger: - There can be no doubt that legislation is in a manner the business of a
King, and yet the best of all is not that the law should rule but that a man should
rule supposing him to have wisdom and royal power. Do you see why this is so?
Young Socrates: - Why?
Stranger:- Because the law cannot comprehend exactly what is noblest or most
just or at once ordain what is best for all. The differences of man and actions and
the endless irregular movements of human things do not admit of any universal
and simple rule. Nor art can lay down any rule which will last forever. That we
must admit.
Young Socrates: - Certainly.
Stranger:- But this the law seeks to accomplish like and obstinate and ignorant
tyrant who will not allow anything to be done contrary to his appointment or any
question to be asked not even in sudden changes of circumstances, when
something happens to be better than what he commanded for some one.
445 J Selden, Table Talk, quoted in M B Evans and R I Jack (eds), Sources of English Legal and
Constitutional History, Butterworths, Sydney, 1984, 223–224.
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Young Socrates:- True, that is just the way the law treats us.
Stranger:- A perfectly simple principle can never be applied to a state of things
which is the reverse of the simple.
Through the discourse, Plato intends to highlight the nature of jus strictum and of
the injustice that results therefrom. This injustice is sought to be removed by a
flexible treatment of the law, by a liberal and humane interpretation of law in
general and by a liberal and humane modification of the law. This flexible
treatment of the law is what is called equity. Flexibility in law is as necessary as
certainty. It would be a folly to get rid of these contradictory tendencies in the
evolution of law. “The great problem” says the late Sir Paul Vinogradoff “consists
in keeping the function of this important element of flexible equity proportionate
to the elements of certainty and stable tradition which are characteristic of the
purely legal side of evolution.”446 Correctly understood the conflict between law
and equity is only apparent.
Aristotle’s view of the function of Equity is worth reading. He holds thus:
“All law is universal but about something it is not possible to make a universal
statement which shall be correct. In those cases then in which it is necessary to
speak universally but not possible to do so correctly the law takes the usual case,
though it is not ignorant of the possibility of error. And it is none the less correct;
for the error is not in the law or in the legislator but in the nature of the thing since
the matter of practical affairs is of, this kind from the start. When the law speaks
universally then, and a case arises on it which is not covered by the universal
statement, then it is right when the legislature fails us and has erred by over
simplicity to correct the omission to say that the legislator himself would have
said had he been present and would have put into his law if he had known. Hence
the equitable is the just and better than one kind of justice not better than absolute
justice but better than the error that arises from the absoluteness of the statement.
And this is the nature of the equitable, a correction of law where it is defective
owing to its universality, (Rosse's translation of Aristolle's fifth book and ethics
Chapter X). Equity thus only carries out the spirit of the law. You will therefore
find that in the legislative enactments of all healthy communities a wide margin of
446
See Common Sense in Law pp. 221, 222.
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discretion is left to the judges for their construction, developed, adaptation to
circumstances and “even for their gradual organic modification.”
The flexibility of the injunctive remedy is evident from the fact that the purpose
of a preliminary injunction is merely to preserve the relative positions of the
parties until a trial on the merits can be held. Given this limited purpose, and
given the haste that is often necessary if those positions are to be preserved, a
temporary injunction is customarily granted on the basis of procedures that are
less formal and evidence that is less complete than in a trial on the merits. A party
thus is not required to prove his case in full at a temporary injunction hearing and
the findings of fact and conclusions of law made by a court granting a temporary
injunction are not binding at trial on the merits.447
The legal system must strive to achieve a balance between certainty and justice.
Increased flexibility does not mean all certainty is sacrificed. Certain legal rules
will continue to dictate the availability of remedies. However a strict distinction
between legal and equitable remedies should not be a determinative factor. In all
cases “a full range of remedies should be available as appropriate no matter
whether they originated in common law or equity.”
It is regularly requested that because of the fluid idea of equity, there ought to be
a code for equity, giving it solid shape. The test of making tenets of equity is
characteristic of the key motivation behind equity: to specialty case-particular
solutions for issues that don't fit "in a legal box." Courts consistently utilize
equity's "extraordinary remedy" to rectify infringement of laws. 448 Indeed, even
where the substantive statutes don't unequivocally accommodate injunctive relief,
judges have accepted the ability to issue orders for statutory infringement. 449
Furnished with this intense instrument, trial judges unavoidably practice
considerable prudence in creating remedies that record for the complex
experimental, evidentiary, and societal inquiries. 450 The measures that courts
447 University of Texas v. Camenisch 451 U.S. 390 (1981). 448 Zygmunt J.B. Plater, Statutory Violations and Equitable Discretion, 70 Calif. L. Rev. 524,
(1982) (compiling past cases asserting that injunctive relief is an “extraordinary remedy”). 449 Tenn. Valley Auth. (“TVA”) v. Hill, 437 U.S. 153, 193-94 (1978) (issuing an injunction
against the destruction of critical habitat notwithstanding the absence of a statutory provision authorizing relief); Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1129 (D.C. Cir. 1971).
450 Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2767 & nn.3–4 (2010) (Stevens, J.,
dissenting) (“Historically, courts have had particularly broad equitable power— and thus
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apply in this procedure are acquired from equity law, a custom that stands rather
than standards of normal law and groups of statutory understanding. In reality, in
prior times equity was managed through completely isolate Chancery courts, with
their own methods, gauges, and remedial powers. 451 Equity was esteemed for its
adaptable standards and procedures, which worked as a corrective when the
utilization of the normal law's unbending guidelines to strange circumstances
brought about unjustifiable results. 452 The inlet that isolates the conventions of
law and equity is made apparent by Blackstone's moderately meager treatment of
equity in his generally thorough audit of English regular law in the
Commentaries. 453 Today, while equity has been converged with different powers
wielded by the courts, equitable reliefs keep on being administered by standards
created in the old courts of equity.
The injunction is also the most prompt and responsive of the entire gamut of
remedies offered by civil law. It can be sought not only at the conclusion of trial,
but also before its commencement. Before finally deciding an injunction
application, both parties must be given a fair opportunity of hearing.454 The type
of proof that is admissible in support of or in opposition to an application for a
preliminary injunction is also critical. Because it is an expedited procedure, with
any relief being temporary and subject to appeal, the courts are more lenient. In
general, the courts do not strictly apply the strict rules of evidence on an
application for a preliminary injunction. The party seeking the injunction bears
the burdens of production and persuasion.455 The evidence offered must be
credible. Affidavits and other materials which might otherwise be deemed hearsay
are often received in preliminary injunction hearings. However, it seems clear that
the proofs, nevertheless, must have some indicia of reliability. Proofs based only
particularly broad discretion — to remedy public nuisances and other ‘purprestures upon
public rights and properties,’ which include environmental harms.” 451 Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil
Procedure in Historical Perspective, 135 U. PA. L. REV. 909, 928 (1987) (explaining the existence of separate equity courts in post-revolution America).
452 Thus, Blackstone wrote, “There can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to positive law” and “since in laws all cases cannot be foreseen or expressed, it is necessary that, when the general decrees of the
law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances.” 1 William Blackstone, Commentaries, *61–62. Modern American courts have acknowledged the function of a court acting in equity “to mould each decree to the necessities of the particular case.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).
453 Holdswerth, Blackstone’s Treatment of Equity, 43 Harv. L. Rev. 1 (1929). 454 Granny Goose Foods, Inc. v. Bhd. of Teamsters Local 70, 415 U.S. 423, 432 n.7 (U.S. 1974). 455 Qualls v. Rumsfeld, 357 F. Supp. 2d 274, 281 (D.D.C. 2005).
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on information and belief are not sufficient to support or oppose a preliminary
injunction. Clearly, "information and belief" allegations should not form the basis
of injunctive relief. The determination of whether to grant a preliminary
injunction "reflects a tension between the need for speedy action and the desire
for certainty and complete fairness."456
7.11 ACCESS TO JUSTICE
"Access to justice is basic to human rights. The right to justice is fundamental to the rule of law and so “We, the people of India” have made social justice an inalienable claim on the State, entitling the humblest human to legal literacy and fundamental rights and their enforcement a forensic reality, however powerful the hostile forces be. Declarations and proclamations, resolutions and legislations remain a mirage unless there is an infrastructure which can be set in locomotion to prevent or punish a wrong and to make legal right an inexpensively enforceable human right. Injustices are many, deprivation victimizes the weaker sections and the minority suffers the oppression syndrome."
- Justice V.R. Krishna Iyer
The Supreme Court has repeatedly emphasized that the right to a fair trial and of
access to justice is a basic and fundamental human right.457 It is not a privilege.
In the case of Bhagubhai Dhanabhai Khalasi v. State of Gujarat458, the Supreme
Court observed:
“A party having a grievance must have a remedy. Access to justice is a human
right. When there exists such a right, a disputant must have a remedy in terms of
the doctrine ubi jus ibi remedium.”
The emergence of the right of access to justice as the most basic human right' was
in recognition of the fact that possession of rights without an effective mechanism
for their vindication would be meaningless. When society is structured in a manner
that it creates barriers to legal recourse, that is, access to justice, then society works
contrary to its own organization. The poor are usually not only socially excluded,
they also have low access to other systems like health, education and legal
services. The right includes the right to have an effective and efficient forum for
protection of rights; to seek prevention of violations and redressal if a right is
456 Sec. & Exch. Comm'n v. Frank, 388 F.2d 486, 490 (2d Cir. 1968). 457
Ref: Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230. 458 (2007) 4 SCC 241.
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violated. Inherent in such right is the availability of an equal opportunity to access
courts to seek justice. The state bears the primary responsibility for administration
of justice and has to ensure free and easy access to justice which refers to the
ability of individuals and organizations to realize justice through the meaningful
and practical enforcement of their rights.
In the famous case of Marbury v. Madison,459 Marshall C.J. broadly ruled the
power of the constitutional courts to go into the validity of the laws made by the
Legislature or of the actions of the executive and reiterated that the very essence of
civil liberty certainly consists in the right of every individual to claim the
protection of the laws, whenever he receives an injury. He quoted Blackstone when
he declared the principle that every right when withheld must have a remedy and
that every injury its proper redress.
7.12 LITIGANT FRIENDLY AND ACCESSIBLE INJUNCTION
The remedy of injunction measures up to the standards of access to justice. It is
simple in procedure, and the jurisdiction of the courts may be invoked by a
nominal application setting out the facts, with no prescribed form. The discretion
of the courts, being wide and equitable, even if minor errors have crept in, the
court is empowered to overlook them and advance substantial justice. This is why
the injunctive remedy is available to the poorest of the poor, and is the most
invoked in the subordinate courts of the country. These peculiar features of the
remedy of injunctions inhere in the very basic notion of justice by offering quick
and relatively inexpensive access. The learned author Cappelleti in his book
‘Access to Justice’, Vol. I Book 1, (also quoted in several pronouncements of the
Supreme Court as well as in reports of the Law Commission of India), on the need
for access to justice has stated that:
“The need for access to justice may be said to be twofold; first, one must ensure
that the rights of citizens should be recognized and made effective for otherwise
they would not be real but merely illusory; and secondly one must enable legal
disputes, conflicts and complaints which inevitably arise in society to be resolved
in an orderly way according to the justice of the case, so as to promote harmony
and peace in society, lest they foster and breed discontent and disturbance. In truth,
459 (1803) 5 U.S. 137.
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the phrase itself access to justice' is a profound and powerful expression of a social
need which is imperative, urgent and more widespread than is generally
acknowledged.”
The injunctive remedy has been fulfilling these tasks and is therefore the preferred
choice of pleaders.
The only restorative remedy (founded on the principle of restitution) available to
citizens of India is the remedy of injunction, whether in writs or suits. This is
another factor that makes injunctions the most accessible and effective remedy
among all.
The need to emulate such features for redressal of grievances and enforcing rights
has been highlighted by the Law Commission (189th Report) wherein, relying on
Lord Diplock's pronouncement in Bremer Vulkan Schiffbau and Maschinenfabrik
v. South India Shipping Corp.460 it was stated that:
“Every civilized system of government requires that the State should make
available to all its citizens a means for the just and peaceful settlement of disputes
between them as to their respective legal rights. The means provided are courts of
justice to which every citizen has a constitutional right of access in the role of
plaintiff to obtain the remedy to which he claims to be entitled in consequence of
an alleged breach of his legal or equitable rights by some other citizen, the
defendant.”
The law of injunction, being equitable, permits the court to reach out to those who
could not approach it directly, and extends the benefits to such persons too. The
two essential needs fulfilled by the law of injunctions, by providing access to
justice, are:
(a) Ensuring that persons are able to invoke legal processes for redressal,
irrespective of social or economic status or other incapacity; and
(b) Ensuring that every person receives a just and fair treatment within the legal
460 1981 (1) ALL ER 289 1981 AC 909.
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system.461
7.13 EPILOGUE
Charles de Montesquieu said, “There is no crueler tyranny than that which is
perpetuated under the shield of law and in the name of justice”.
The quest for justice has been an ideal which mankind has been aspiring since
generations. Our Constitution reflects this aspiration in the preamble itself which
speaks about justice in all its forms: social, economic and political. Justice is thus a
constitutional mandate.
The need for a law to serve the need of justice cannot be undermined. The justice
delivery system in a civilized country is meant to provide a means whereby
citizens can have their disputes resolved without having to resort to self-help.
Litigation is a recourse of last resort. If the state is not able to provide effective
and efficient means to redress civil wrongs, people would resort to settling their
differences out of court and by use of violence and aggression. It is reasonable to
regard the provision of an accessible and fair civil justice system as an obligation
imposed on the State in return of the prohibition imposed by State on the use by
the citizens of forcible self-help. For a civil justice system to discharge its essential
function, it must adopt procedures that are fair to the parties and efficient in
resolving disputes and must be accessible to all.
Another relevant factor is that ours was an adversarial system of civil adjudication.
The court was enjoined to decide which of the rival cases presented by the litigants
is to be preferred. Such a system can be fair only if each side has sufficient notice
of the factual case and is able to properly present its pleas. For such a system to
operate fairly, the litigation must take place on a level playing field. The absence
of such a field, led to its transformation into an inquisitorial system, which is more
responsive and answers the call of justice. It is essential therefore for law to
measure up the reformed system against the three attributes of fairness, efficiency
and accessibility.
The objective of the law of injunction, akin to other remedial laws, is to provide a
461 S. Muralidhar, Law, Poverty and Legal Aid: Access to Criminal Justice, Lexis Nexis (2004),
p.1.
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channel for protection and enforcement of rights. For the remedy to be just, it
needs to efficient and even-handed. It has been examined in this chapter as to
whether the law of injunction passes this test too.
It has been found that the law of injunction is, to the core, an equitable remedy.
The grant of the injunction is under wide discretion of the court. So much so, that
even if the plaintiff succeeds in demonstrating the existence of a right in his favour,
an injunction may not be issued to him. Whether this practice is just, has been
analyzed.
First, the requirements of justice were studied. It has been concluded that justice
essentially refers to fairness, and law can be said to just if it balances the
competing interests of individual with those of the society, if it maximizes
satisfaction of human wants within the available resources, if it is in harmony with
moral principles, if it treats all men and women with equality, if it is flexible
giving legitimate room for interpretation and if it is clear in language.
In the administration of law, the benchmarks were set on independence and
impartiality, where people are treated equally, with equal opportunity to hearing,
and for legal representation. Access to court was highlighted as an important facet
of the fair administration.
The law of injunction was then tested on the touchstone of those benchmarks to see
whether it measures up as a just law, and conforms to the requirements set out. It
has been seen that equity makes law of injunction a conscience based remedy. This
implies that factors other than merits of the case may count in influencing the
decision. For eg. the conduct of the plaintiff, the disclosure of complete facts, and
the potential impact on public interest, have become relevant factors. These do, to
an extent, make the remedy difficult to predictable for the parties, but do not render
the law uncertain, since these factors can be perceived and studied. The mere fact
that morality and ethical considerations have risen to prominence does not imply
that the law is unfair, on the contrary, the conformity to moral considerations is a
specific and much celebrated requirement of a just law. Equity has also been seen
to intervene to correct anomalous situations where mechanical application of the
strict letter of the law is likely to result in injustice. This is particularly important
where situations not contemplated by the legislature at the time of framing of the
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law have occurred and the application of law to such situations was unintended.
The injunction has been found to be a flexible remedy. The said flexibility does not
compromise certainty of the law.
Having analyzed the spectrum of cases to which the remedy may apply, it can be
safely inferred that it is inconceivable to have an exhaustive code for equity,
reducing all its rules to writing. The doctrines keep evolving with the passage of
time. The judges’ ability to deliver case-specific judgments (in other words,
imparting individualized justice) cannot be, and should not be subsumed by overly
general rules. The increasing complexity of litigation does not make it conducing
to suppress the equitable discretion of courts.
Although the factors for grant of injunction remain common for all cases, the
relative weight placed on the factors was noticed to be varying in different
contexts. For eg. an injunction to restrain an election has a higher standard to
obtain, as compared to an injunction to prevent infringement of patent. This is also
a facet showing that judicial discretion can only be governed by broad doctrines,
and cannot be circumscribed by specific or rigid rules.
It also seen on the index of access to justice, the law of injunction fares better than
other remedies. The injunction is the most prompt remedy, and can be invoked by
minimum (non ad-valorem) court fee. Injunction does not insist on elaborate
procedural formalities, and a simple application detailing facts, can seek
intervention of the court. Injunction, as administered, is not bound by technical
rules and aims to deliver substantive justice. The efficiency of injunctions in the
realm of remedies is unparalleled. The elements of equity and discretion enable
courts to craft creative remedies to suit the facts of each case. By conditional
orders, the courts can balance the equities of the parties and resolve the
controversy. For eg. In a suit for injunction against disconnection of electricity
supply, the dispute being of an electricity bill, the court may instead of either
allowing or rejecting the prayer of restraining disconnection, order that some part
of the disputed bill may be deposited by the plaintiff with the supplier and subject
to that the supply be not disconnected. Thus there is greater room for courts to find
ways to dissolve the deadlock. Also injunctions permit the court to restore a benefit
wrongfully obtained by a party. This shows even-handedness, precluding a party
from taking advantage of his own wrong, or even of an erroneous decision of a
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court. At a time when courts in India carry a sizeable docket, injunctions can serve
as an appropriate device to accelerate relief and ensure prompt resolution of
grievances.
The absence of emphatic and clear-cut rules in the grant of injunctions is not to be
perceived as a weakness, but is its core strength. It has to be viewed in the
backdrop of the fact that equity had been created precisely to fill gaps in the law,
and therefore by definition has to be flexible and adaptable.