Prohibitory and Mandatory Injunctions – The Blog of Daksh Pandit

An injunction is an order by a court against the Defendant restraining him from doing or directing him to do an Act so as to prevent an irreparable injury from being caused to the Plaintiff. Injunctions can be in the form of a prohibitory injunction i.e. a preventive relief granted to the Plaintiff, restraining the Defendant from doing an Act, or it may be in the form of a mandatory injunction which compels the Defendant to take a positive step so as to restore the Plaintiff in the position as if the breach had not been committed by the Defendant.

Prohibitory Injunction

There are two facets of Prohibitory injunction viz.

Temporary injunction, and
Perpetual injunction.

Section 36 to 38 of the Specific Relief Act, 1963 [“the Specific Relief Act”] governs the field of law pertaining to prohibitory injunctions which are in the nature of a preventive relief. The difference between a Temporary and Perpetual injunction is culled out in Section 37 viz. a Temporary injunction or interim injunction, as the name suggests is temporary in nature and runs in favour of the Plaintiff for a specific period of time or until further order of the court and regulated by Order 39 of the Civil Procedure Code, 1908 [“CPC”]. Order 39 Rule 1 of CPC postulates the cases in which a temporary injunction may be granted when in any suit it is proved by affidavit or otherwise that.-

That any property, in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
That the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors,
That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.

In the above cases, the court may grant a temporary injunction in favour of the Plaintiff, injuncting the Defendant from acting in any way detriment to the rights and interests of the Plaintiff. However, the said order of injunction is subject to final adjudication of dispute between the parties. An aggrieved defendant can also seek vacation or setting aside of the said order of temporary injunction by moving an application under Order 39 Rule 4 of CPC. While granting temporary injunctions, the court need not delve into the merits of the case and only need to from a prima facie opinion.

Perpetual Injunction

Perpetual injunction on the other hand are governed by Section 38 of the Specific Relief Act and guided by the rules and provisions contained in chapter II of the Specific Relief Act. Perpetual injunction or permanent injunction, as the name indicates, is permanent in nature and granted by the court only by way of a decree after hearing the parties on the merits of the case, unlike in the case of temporary injunctions, in which case the court only need to form a prima facie opinion before granting injunction. A perpetual or permanent injunction, in effect, grants final relief to the Plaintiff, thereby permanently restraining the defendant from commission of an act which would be contrary to the rights of the Plaintiff. Section 38 of the Specific Relief Act postulates the following instances wherein the court would be inclined to grant a permanent injunction when the Defendant invades or threatens to invade the Plaintiff’s right to, or enjoyment of property, viz.-

Where the Defendant is trustee of the property for the Plaintiff.
Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion.
Where the invasion is such that compensation in money would not afford adequate relief.
Where the injunction is necessary to prevent a multiplicity of proceedings.

Mandatory Injunction

Mandatory injunction is defined under Section 39 of the Specific Relief Act. This injunction is granted by the court to compel the Defendant to perform a certain act. It provides a remedy where it is not possible to restore the status quo, unless the wrongdoer is made to undo the wrong, which he has committed. It is granted when to prevent a breach of obligation it is necessary to compel the performance of certain acts. Both, Prohibitory and Mandatory injunctions are, in principle, the same, i.e. both are granted to the Plaintiff to prevent an irreparable injury from being caused to the Plaintiff, however, there is a vital difference between the two with respect to in what circumstances which injunction would apply. This can be succinctly clarified by citing an example, viz. in the context of a construction dispute, if a Plaintiff seeks to prevent the Defendant from demolishing a structure, it would be deemed a prohibitory injunction. Whereas, if a Plaintiff wants to compel the Defendant to demolish a structure, then this would amount to mandatory injunction. The Supreme Court in State of Kerala vs Union of India¹ distinguished Prohibitory and Mandatory injunctions in the following terms-

“14. In that sense, prohibitory injunctions are forward-looking, such that they seek to restrict a future course of action. Conversely, mandatory injunctions are backward-looking, because they require the defendant to take an active step and undo the past action. Since mandatory injunctions require the defendant to take a positive action instead of merely being restrained from performing an act, they carry a graver risk of prejudice for the defendant if the final outcome subsequently turns out to be in its favour. For instance, in the example above, preventing the demolition of a structure for the time being cannot be perceived to be on the same pedestal as mandating the demolition of a construction. While the former may still be undone, i.e., the defendant may still be compelled to demolish the structure should the plaintiff succeeds in his final claim, undoing the latter, i.e., rebuilding the construction, would cause graver injustice. The Courts are, therefore, relatively more cautious in granting mandatory injunction as compared to prohibitory injunction and thus, require the plaintiff to establish a stronger case.”

Impact of 2018 Amendment

At this juncture, it is pertinent to mention that the Specific Relief (Amendment) Act, 2018 [“the 2018 Amendment”] has introduced a paradigm shift in law regarding contractual enforcement in India. The 2018 Amendment has made specific performance a general rule rather than an exception in contrast to the pre amended Act which conferred wide discretionary powers upon the courts to grant specific performance and gave primacy to damages as a relief over the decree of specific performance. Resultantly, the courts, in majority of cases, eschewed from granting specific performance as a relief and leaned in favour of awarding damages. Consequently, the pre amended Act provided a window of opportunity to the errant parties, who found it more viable to breach a contract than perform it as the cost of damages may still be less than the cost of performance. However, the 2018 Amendment Act has mandated the decree of specific performance subject to exceptions carved out in Section 14 and Section 16 of the Act and the wordings to the aforesaid effect can be found in Section 10 of the Act as follows-

“10. Specific performance in respect of contracts-The specific performance of a contract shall be enforced by the court subject to the provisions contained in subsection (2) of Section 11, Section 14 and Section 16” (emphasis supplied)

As a corollary, Section 14(a) of the pre amended Act which made a contract not specifically enforceable if the nonperformance of which could be compensated with adequate money, has been removed by the 2018 Amendment in order to give primacy to the decree of specific performance over damages. Such drastic changes in the Act were also necessary in view of the fact that the World Bank, in its ‘Ease of Doing Business’ 2018 report ranked India at 100 out of 190 countries making India not a desirable destination to execute infrastructure projects. Therefore, with the object of promoting public interest, ‘Ease of doing business’ and providing an effective remedy to the parties, the 2018 Amendment Act was introduced by the Government of India.

In view of the above, post 2018 Amendment, as long as the dispute is arising out of a contract between the parties, the court, before granting injunction, would no longer take into consideration if instead of injunction, grant of compensation would afford adequate relief. However, it is pertinent to clarify that in all the other cases i.e. disputes not arising out of contract, for ex. Invasion of property, etc., the old position will continue, and the grant of injunction would be subject to there being no adequate remedy in damages. The said position is further clarified by Section 38(c) itself of the Specific Relief Act, which, in effect, postulates that injunction would not be granted if compensation would afford adequate relief. Damages in substitution of injunction is given where-

Injury to the Plaintiff’s legal right is small;
Injury is capable of being estimated in terms of money;
The loss caused by the injury can be adequately compensated by money payment; and
Where the balance of convenience rests in favour of the Plaintiff².

Discretionary Relief

Section 36 and 39 of the Specific Relief Act, clarify, at the very outset that injunctions are granted at the discretion of the court subject to the applicability of the 2018 Amendment, insofar cases arising out of contractual disputes are concerned, in which case the court, while granting injunction, no longer has the discretion to award damages in lieu of injunction. That said, in all the other cases, injunction cannot be demanded as a matter of right³. The court is not bound to grant this relief merely because it is lawful to do so⁴. The Supreme Court, in a catena of cases⁵ has expounded upon the following tests that the court needs to apply, while granting the discretionary relief of injunction viz.-

A Prima Facie case, which necessitates that as per the material placed on record, the Plaintiff is likely to succeed in the final determination of the case.
Balance of convenience, such that the prejudice likely to be caused to the Plaintiff due to rejection of the interim relief will be higher than the inconvenience that the Defendant may face if the relief is so granted; and
Irreparable injury, which means that if the relief is not granted, the Plaintiff will face irreversible injury that cannot be compensated in monetary terms.

It is pertinent to note that the aforesaid triple test is applied with a stronger scrutiny in case the prayer made by the Plaintiff is for a mandatory injunction. Since, as noted by Supreme Court in State of Kerala vs UOI (supra), mandatory injunctions require the defendant to take a positive action instead of merely being restrained from performing an act, they carry a graver risk of prejudice for the defendant if the final outcome subsequently turns out to be in its favour. Therefore, the Plaintiff is required to meet a higher standard for the triple test of interim relief in case of mandatory injunction.

The Supreme Court in the matter of Ramakant Ambalal Choksi vs Harish Ambalal Choksi⁶ elaborated upon “prima facie case” , “irraperable injury” & “balance of convenience”, which must be shown to exist, so as to warrant an injunction in the nature of Temporary Injunction in favour of the Plaintiff, as follows-

“34.The burden is on the plaintiff, by evidence or otherwise, to prove that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition precedent for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non- interference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” (emphasis supplied)

Conclusion

Injunction is a remedy accorded to the Plaintiff to protect itself from harm from the acts of the Defendant. However, injunctions are not granted in a routine manner by the courts as it is completely discretionary and the Plaintiff must satisfy the triple test to seek an interim injunction in its favour. The threshold to satisfy the triple test is much higher when the Plaintiff seeks a mandatory injunction, as observed by the Supreme Court in State of Kerala vs UOI (supra). It is imperative for the Plaintiff to satisfy all the three tests so an interim injunction can be granted in its favour. Even if the Plaintiff makes out a prima facie case, the court will refuse to grant interim injunction if the injury suffered by the Plaintiff on account of refusal of interim injunction is not irreparable⁷. Grant of injunction is also subject to the application of Section 41 of the Specific Relief Act. Section 38 of the Specific Relief Act must be read in conjunction with Section 41 of the Act. The former lays down the conditions under which an injunction can be granted, whereas the latter enlists various instances in which an injunction cannot be granted

By Daksh Pandit