Specific Relief Act (SRA)
Preventive Relief and Injunctions: Sections 36 and 37
The reliefs studied so far look backward, at a contract to be performed or an instrument to be undone. Preventive relief looks forward: it stops a wrong before it happens, or before it continues. Section 36 tells us that preventive relief is granted by injunction, and Section 37 divides injunctions into two kinds, temporary and perpetual. This note introduces the scheme of Part III of the Act, the two kinds of injunction and the law that governs each, and the further division into prohibitory and mandatory injunctions that runs through the sections to come.
Figure: Sections 36 and 37: preventive relief by injunction, temporary versus perpetual, and prohibitory versus mandatory
1. Preventive Relief by Injunction: Section 36
The gateway to Part III ▪ The rule. Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual. ▪ What an injunction is. An order of the court directing a party to do, or more often to refrain from doing, a particular act. ▪ Discretionary. Like the other reliefs in the Act, an injunction is not granted as of right; the court weighs the equities, the conduct of the parties, and the adequacy of other remedies. |
2. The Two Kinds: Section 37
Feature | Temporary injunction, s. 37(1) | Perpetual injunction, s. 37(2) |
|---|---|---|
Duration | Continues until a specified time or until further order of the court | Lasts permanently |
When granted | At any stage of a suit | Only by the decree made at the hearing, on the merits |
Governing law | The Code of Civil Procedure, Order XXXIX, Rules 1 and 2 | Sections 38 to 42 of this Act |
Nature | Interim: it preserves the position pending the suit | Final: it conclusively restrains the defendant |
A temporary injunction holds the ring while the suit is fought; it decides nothing finally. A perpetual injunction is part of the final decree and permanently restrains the defendant from asserting a right, or committing an act, that would be contrary to the plaintiff's rights.
3. The Vocabulary of Temporary Injunctions
Terms the courts use ▪ Ad interim injunction. A temporary injunction granted for a short period, often before the other side is fully heard, until the application can be decided. ▪ Ex parte injunction. One granted in the absence of, and without notice to, the opposite party, in a case of urgency, subject to the safeguards of the Code. ▪ Status quo order. An order that the parties maintain the existing state of affairs pending the suit. ▪ Interim and interlocutory. Words for relief that operates during the pendency of the proceeding, as opposed to the final, permanent relief. |
4. Prohibitory and Mandatory Injunctions
The other great division ▪ Prohibitory injunction. The ordinary, negative form: it restrains the defendant from doing something, from committing or continuing a wrongful act. ▪ Mandatory injunction. The affirmative form: it compels the defendant to do a positive act, usually to undo the effect of a wrong already done. Section 39 governs mandatory injunctions. ▪ Example. Restraining a neighbour from building over a right of way is prohibitory; directing him to pull down a wall already built in breach of it is mandatory. |
5. The Scheme of Part III
- Section 36: preventive relief is by injunction, temporary or perpetual.
- Section 37: defines the two kinds and their governing law.
- Sections 38 to 42 (to follow): when a perpetual injunction is granted (s. 38), mandatory injunctions (s. 39), damages in lieu of or in addition (s. 40), when injunctions are refused (s. 41), and injunctions to perform a negative agreement (s. 42).
6. Frequently Asked Questions
Q. How is preventive relief granted?
A. Under Section 36, preventive relief is granted at the discretion of the court by injunction, which may be temporary or perpetual.
Q. What is the difference between a temporary and a perpetual injunction?
A. A temporary injunction, under Order XXXIX CPC, may be granted at any stage and lasts for a limited time or until further order; a perpetual injunction is granted by the final decree on the merits and lasts permanently, under Sections 38 to 42.
Q. What law governs a temporary injunction?
A. The Code of Civil Procedure, chiefly Order XXXIX, Rules 1 and 2, and not the substantive provisions of the Specific Relief Act, which govern perpetual injunctions.
Q. What is the difference between a prohibitory and a mandatory injunction?
A. A prohibitory injunction restrains the defendant from doing an act; a mandatory injunction compels him to do a positive act, usually to undo a wrong already done, and is governed by Section 39.
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