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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

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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).

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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.

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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.

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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?

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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).

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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.”

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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.

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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).

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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().

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(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.

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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.

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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.

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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).

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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].

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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.

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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.

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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.

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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.

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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

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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.

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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.