PERPETUAL INJUNCTION

G. Archana,

Senior Civil Judge cum II ACMM, Visakhapatnam.

Origin :

The law of injunction in India has its origin in the Equity Jurisprudence of
England from which we have inherited the present administration of law. In India, the
Specific Relief Act, 1963 provides a large number of remedial aspects of Law.
Injunction is a judicial process by which one who has invaded or is threatening to
invade the rights, legal or equitable, of another, is ordered to refrain from doing, or to
do a panicular act or thing. The right to an injunction depends in India upon statute
and is governed by the provisions of the Specific Relief Act.

Meaning:

An injunction is defined in Halsbury's Laws as: “A judicial process whereby a party

Introduction :

Part III of Specific Relief Act, deals with preventive relief. Chapter VII is about
Injunction,consisting of Sec. 36 to section 41.

Section 36 says that the preventive relief is granted by the court at the discreation of
the court by injuction, Temporary or Perpetual.

Section 37 Temporary and Perpetual Injunction :

(1) Temporary injunctions are such as are to continue until a specified time, or
until the further order of the court, and they may be granted at any stage of a suit, and
are regulated by the Code of Civil Procedure, 1908 (5 of 1908). provision for
Temporary injunction is given under order 39 of Civil Procedure code.

(2) a perpetual injunction can only be granted by the decree made at

the hearing and upon the merit 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 right of the plaintiff.

Section 38 of the Act further provides the circumstances where the perpetual
injunction may be granted infavour of the plaintiff to prevent the breach of an
obligation existing in his favour, whether expressly or by implication. In contractual
matters when such obligation arises, the Court has to seek guidance by the rules and
provisions contained in Chapter II of the Act dealing with specific performance of
contracts.

The grant of temporary injunction is a discreationary relief and the only two
questions that are invariably required to be taken into account are whether there is
any su bstancial question to be investigated into and secondly, in whose favour the
balance of convenience the court while granting the injunction required to apply three
tests namely PrimaFacie test, balance of convenience test and irreparable injury test.

When a mere suit for permanent injunction will lie, and when it is necessary

to file a suit for declaration and/or possession with injunction as a

consequential relief, are well settled. They are referred below briefly.
1) Where a plaintiff is in lawful or peaceful possession of a property and such

possession is interfered or threatened by the defendant, a suit for an injunction

simpliciter will lie. A person has a right to protect his possession against any

person who does not prove a better title by seeking a prohibitory injunction.

But a person in wrongful possession is not entitled to an injunction against the

rightful owner.

2) Where the title of the plaintiff is not disputed, but he is not in possession,

his remedy is to file a suit for possession and seek in addition, if necessary, an

injunction. A person out of possession, cannot seek the relief of injunction

simpliciter, without claiming the relief of possession.

3) 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. Where the title of
plaintiff is under a cloud or in dispute and he is not in possession or not able to
establish possession, necessarily the plaintiff will have to file a suit for declaration,
possession and injunction.

When perpetual injunction would be granted? Section 38 of the Specific Relief Act
provides for the grant of a perpetual injunction to prevent the breach of an obligation
existing in favour of a plaintiff whether expressly or by implication.

When can be granted

It is true that in a suit for permanent injunction title should not be investigated but title can be inves
tigated incidentally for the purpose of determining whether plaintiff was in possession of the suit
land on date of institution of suit. (1998) 1 Andh LT 271
When it can be refused
A suppression of material fact can be a ground for refusing the relief of permanent injunction. Thus,
in a case of plaintiff who claims to be a tenant in possession, it is necessary for the Court to satisfy
itself that the plaintiff is really in a tenant-in-possession and has a legal right to be in possession and
then only a perpetual injunction can be granted.

No injunction against assigned lands. See. AIR 1987 A.P. 160 (F.B.) and
1997 (4) ALT 304
Moghal Sardar Hussain Baig Vs. Syed Farveej Begum- 2017 (4) ALT 808 ( S.B. ) A.
RAMALINGESWARA RAO,j

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Registration Act, 1908, Section 49 - *UNREGISTERED LEASE DEED* - The petitioner is the
plaintiff in the suit, whereas the respondent is the defendant - The suit was filed for permanent
injunction restraining the respondent from ejecting the petitioner from the plaint schedule premises
until the expiry of term of lease under agreement dated 04.04.2016 - The petitioner stated that
though it is an UNREGISTERED LEASE DEED agreement, it can be looked into for collateral
purposes for proving possession and nature of possession - But the respondent objected on the
ground that the unregistered lease agreement is inadmissible in evidence even for collateral purpose
for proving possession as the factum of lease being the contentious issue - The trial court upheld the
objection on the ground that the lease agreement was unregistered - Held, that the document sought
to be relied on by the petitioner can be looked into for collateral purposes - the order of the lower
court in I.A. No 1670 of 2016 in O.S. No. 298 of 2016 dated 19.01.2017 is set aside and the CRP is
allowed for permitting the petitioner to produce the document for the purpose of collateral purpose.\

In a suit for injunction, two aspects are to be proved...One is possession and another is cause of
action i.e. interference. Merely because the plaintiff is in possession he wouldn't automatically
entitled for injunction unless he proves the interference...It is for you to decide whether the plaintiff
is able to prove interference or not

In *Gorakh Nath Dube v. Hari Narain Singh (AIR 1973 SC 2451)* while approved the view of the
Allahabad High Court in Jagarnath Shukla's case (1969 All LJ 768), that it is the substance of the
claim and not its form, which is decisive."

Thus *where the grant of injunction depends upon the determination of the right or interest in any
land situated within the consolidation area, the suit for permanent injunction may not be
maintainable.* In order to determine whether the suit for injunction sirnpliciter is maintainable or
not, the substance of the pleadings has to be looked into and not merely the form of pleadings of the
plaintiff alone or the prayer made by him. Each case is to be decided in the facts of its own.