1. On the basis of the Nature of the Order of the Court.
2. On the basis of Duration of the Period of the Order.
Relevant provisions of the Specific Relief Act
S.2 (a) | “Obligation“ | “Obligation” includes every duty enforceable by law |
S.4 | Specific relief | Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws: Sp. relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law. |
S.34 | Declaration | Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not inexistence, and for whom, if in existence, he would be a trustee. |
S.36 | Preventive relief how granted.- Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. | |
S.38 | Perpetual injunction | Perpetual injunction when granted (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings. |
S.39 | Mandatory injunctions | Mandatory injunctions: When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. |
S.41 | Injunction when refused | Injunction when refused: An injunction cannot be granted- (a) to restrain any person from prosecuting a judicial proceeding …..; (b) to restrain instituting … any proceeding in a court not sub-ordinate … (c) to restrain any person from applying to any legislative body (d) to restrain – proceedings in a criminal matter; (e) prevent breach of contract performance of which not be specifically enforced; (f) to prevent – an act of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained …. except in case of breach of trust; [(ha) if it would impede or delay the progress or completion of infrastructure project or interfere with the continued provision of relevant facility …..] (i) when the conduct of the plaintiff or his agents …. disentitle him to be the assistance of the court; (j) when the plaintiff has no personal interest in the matter. |
Temporary Injunction Granted when- Prima Facie Case and Balance of Convenience ; Also to Preserve Status Quo
In Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai, 2006 5 SCC 282, it is pointed out by our Apex Court 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 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 tilt s 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 Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 : (1990) 2 SCC 117, our Apex Court also held that he relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.
Temporary Mandatory Injunction and Ad Interim Mandatory Injunction
Temporary Mandatory Injunction is granted rarely; because, it may tantamount to granting the final relief itself.
Grant of Ad Interim Mandatory Injunction (ex-parte, till the appearance of opposite party) is still restricted, as it is given only in very exceptional cases and on strong circumstance to protect the rights and interest of the parties.
Following are the Two Landmark Decisions on this subject
(1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 : (1990) 2 SCC 117, is the laudable decision on interim mandatory injunction. It is laid down in this decision that interlocutory mandatory injunctions are granted to:
It is also pointed out that the court would consider the prospect of granting of a mandatory injunction finally, after trial; and delineated that a fresh state of affairs cannot be allowed to be created by the grant of such an injunction.
(2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697, is the decision in the matter of elections in a Co-operative Society where the Apex Court moved forward and stated that Interim Mandatory Injunction can be granted if the court is satisfied that refusal of injunction would tantamount to dismissal of the main petition itself and there would be nothing left to be allowed when the final pronouncement comes.
1. Dorab Cawasji Warden v Coomi Sorab Warden, AIR 1990 SC 867 (Doctrine of higher standard )
In this decision it is held as under:
The Apex Court had relied on English decisions as under:
2. Deoraj v. State of Maharashtra, AIR 2004 SC 1975
Deoraj v. State of Maharashtra, AIR 2004 SC 1975 : (2004) 4 SCC 697, pertained to elections in a Co-operative Society. The Apex Court observed in this case that if interim orders were not granted, by the time the matter came up for final hearing, there might be nothing left to grant a relief. It is pointed out that grant of interim mandatory relief may be justified where withholding of interim relief may tantamount to dismissal of the main petition itself (in spite of a prima facie case). Therefore, it was observed that if there was a very strong prima facie case, although the interim mandatory order amounted to granting final relief itself, considering the balance of convenience and irreparable injury, the Court could allow the interim relief. At the same time, the Court cautioned that this order should be passed in rare cases in compelling circumstances, alone. The Apex Court held as under:
It is pointed out in Samir Narain Bhojwani v. Aurora Properties and Investments, 2018-8 MLJ 227: 2018-10 Scale 33, that the principle expounded in Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867, has been consistently followed by the Apex Court in decisions including Metro Marins v. Bonus Watch Co. (P) Ltd, (2004) 7 SCC 478, Kishore Kumar Khaitan v. Praveen Kumar Singh, (2006) 3 SCC 312, and Purshottam Vishandas Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73).
In Dr Syed Afzal v. Rubina Syed Faizuddin, 2020-1 CivCC 412; 2020-1 RCR (Civ) 185, the Supreme Court has observed that though the court has power to grant interim mandatory injunctions, it did not mean that the same could be granted even without giving opportunity of hearing to the opposite side, especially when the main appeal was pending for the six years. The Supreme Court observed in Hammad Ahmed v. Abdul Majeed, 2019 – 14 SCC 1, that ad interim mandatory injunction is granted only ‘on strong circumstance so that to protect the rights and interest of the parties’.
Injunction is a possessory remedy.
Courts protect settled possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769). Injunction is a possessory remedy. (See: Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402. Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533. Referred to in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145. )
Courts grant injunction without seeking declaration when title is clear, simple and straight-forward; and when no serious denial or cloud on title (not any apparent defect): Anathula Sudhakar v. Buchi Reddi: AIR 2008 SC 2033.
But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.
Settled Possession and Established Possession
In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.
In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:
In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:
‘Possession is good against all but the True Owner’
This principle is declared in Parry v. Clissold, (1907) AC 73. Though the Supreme Court accepted this principle in Nair Service Society Ltd. vs. K.C. Alexander and others, AIR 1968 SC 1165, it was with a clarification. It reads as under:
When Declaration is Needed for grant of Injunction
Mandatory Injunction Sought For Instead One For Possession
If possession is lost, the plaintiff has to seek recovery; and mandatory injunction would not be sufficient. Court fee is also different for recovery. In Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857, our Apex Court observed as under:
When Injunction granted without declaration
1 | Title: clear,simple and straight-forward; or settled right (lawful possession)Well established possession No Substantial questions of fact and law exists (2017 -7 MLJ 627; 2005-4 MLJ 258): Unnikrishnan VS Ponnu Ammal: 1999 1 KLT 298: AIR 1999 Ker 405.No serious denial or cloud(not any apparent defect) on title (or right): Anathula: AIR 2008 SC 2033. (Such as settled or lawful possession: Anathula: AIR 2008 SC 2033; infringement of trade mark or copyright: 2004-3 SCC 90). Void acts:2000 SC 1099; 2009-4 KLT 840; (2002) 9 SCC 28; AIR 1977 SC 1718; 2013 SC 1226. Fraud on character of a document (not contents): Prem singh Vs. Birbal: (2006) 5 SCC 353 |
2 | Particular instances specified in Sec. 38 (2) & (3) of the Sp. Rlf. Act 1. Breach of Contractual obligations(including Bylaw provisions). 2. Trustee invades plaintiff’s right. 3. No standard for ascertaining damages. 4. Compensation in money would not be adequate relief. 5. Necessary to prevent multiplicity of judicial proceedings. |
3 | Fiduciary (attached to trust) obligation: 41(h). |
4 | No lis (no dispute for defendant): 2010-168 DLT 132 |
5 | Facts judicially noticeable: Evd. Act, S. 57 |
6 | Law confers a right; or, Right arises under an Act. (Eg. with expression “shall be void”):(2015)7 SCC 601; 2003 SC 4102 Sec. 74 Contract Act: while resisting a claim of return of advance or to support forfeiture of earnest money, the defendant can resist it without a counter claim. In Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136, it is held: “The Section applies whether a person is a plaintiff or a defendant in a suit.” |
7 | Established custom/customary-rights. Village pathway, Marumakkathayam |
8 | Constitutional right: Art. 19, 21, 300A etc. |
9 | Estoppel against defendant S. 115, 116 (tenant), 117 (licencee) Evd. Act |
10 | Acquiescence against defendant |
11 | Already declared (in earlier civil case). |
Cloud – Explained in Anathula – Para 12
A cloud is raised when some apparent defect in his title or some prima facie right of a third party. Not a cloud, if trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title. (It should be serious cloud: Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150: (q. in Muddasani Venkata Narsaiah v. Muddasani Sarojana: AIR 2016 SC 2250)
When declaration refused (S. 34 Proviso)
When declaration given without further relief:
No decree for recovery unless ‘present right to the possession’
While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) 2020-1 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’ . But it is pointed out that i n such situations, a worshipper must be permitted to sue as next friend of the deity , sue on behalf of the idol itself – directly exercising the deity’s right to sue.
Ayodhya Case – Proceeded on the principle: ‘The court is the protector of all charit ies’.
It is held in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) as under:
It is clear that the our Apex Court has rendered the above edicts adopting the view that ‘the court is the protector of all charities’.
Declaration on ‘Legal Character’ & Anathula Sudhakar
Sec. 34 refers to declaration of status (legal character) or right. Anathula Sudhakar refers to denial/cloud in property rights alone; and not status (legal character).
The same principle can be brought in ‘status’ (legal character)also. It is held in AIR 1995 Ori 59; Quoted in: 2013 3 ILR(Ker) 259; 2013 3 KLJ 411; 2013-3 KLT(SN) 60.
Declaration is given when cloud hovering the on (or denial of) ‘Legal Character’ also.
Declaration sought only as an ancillary relief – limitation
(Declaration under Sec. 34 is not exhaustive.)
A suit for declaration is governed by Article 58 of the Limitation Act and the period of limitation is three years. But it is not applicable for declaration sought only as an ancillary relief.
In S. Krishnamma v. TS Viswajith, 2009 (4) KLT 840, it is observed that when a declaration regarding the void character of a document is sought for, the period of limitation for the suit would not be the period provided for declaration. The consequential relief sought for is to be treated as main relief for governing the period of limitation. (See Mrs. Indira Bhalchandran Gokhale v. Union of India -AIR 1990 Bom 98). Therefore, declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.
Locus for Plaintiff in Infraction of a Municipal Building Regulation
A neighbour who is affected by an illegal construction, or a construction in infraction of a Municipal regulation, will have the locus and can maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely the look-out of the local authority. It was observed that unless, by express words or by necessary implication he is debarred (Sec. 9 CPC) from doing so, civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said: “If you have an infringement of a legal right there is a right of action without actual damage being proved…. Where you have an interference with a legal right, the law presumes damage.”
Relying on the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima w/o Caetano Joao v. Village Panchayat of Merces, AIR 2000 Bom 444, it was observed that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.
(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994 2 MahLR 869; 1994 1 MhLJ 256; D. Thomas v. N. Thomas1999 2 MLJ 260; Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das: 2015 1 GauLR 133.)
In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:
Andhra Pradesh High Court in Bhagwan Das v. Harish ChetwalIt held as under, as appears from the reported judgment, Sarada Bai v. Shakuntala Bai AIR 1993 AP 20 t:
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