Code of Civil Procedure, 1908 (CPC)
Temporary and Permanent Injunction Distinguished
Both restrain a party, and they come from different statutes and answer different questions. A temporary injunction is granted under Section 94(c) and Order XXXIX of the Code of Civil Procedure, 1908, on affidavits, to hold the position while the suit runs. A permanent or perpetual injunction is granted under Sections 37 and 38 of the Specific Relief Act, 1963, by the decree, after a trial on evidence, and it binds the defendant for good. These notes compare them and explain why the first says nothing about the merits.
How long each lasts, and what each is founded on
1. The Two Provisions
§ Section 37, Specific Relief Act, 1963 (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. (2) 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. |
Section 37 is the hinge of this topic, because it does two things at once. It tells us that a temporary injunction is regulated by the Code, which sends us to Order XXXIX; and it tells us that a perpetual injunction can be granted only by the decree made at the hearing and upon the merits, which explains everything that follows about timing, evidence and effect.
2. Temporary Injunction: Order XXXIX
§ What it requires • The occasions in Rule 1: property in dispute in danger of being wasted, damaged, alienated or wrongfully sold in execution; the defendant threatening to remove or dispose of property to defraud creditors; or threatening to dispossess the plaintiff or otherwise injure him. • And Rule 2: restraining the breach of a contract or other injury of any kind. • The triple test, which the case law supplies: a prima facie case, the balance of convenience, and irreparable injury not compensable in money. • Rules 3 and 3A: notice is the rule, an ex parte order requires recorded reasons and immediate service, and the application is to be disposed of within thirty days. • Rule 4: the injunction may be discharged, varied or set aside, and must be vacated where it was obtained on a false or misleading statement in a material particular. |
3. Permanent Injunction: Sections 38 to 42, Specific Relief Act
§ What it requires • Section 38(1): 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. • Section 38(3): where 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 cases there set out, including where there exists no standard for ascertaining the actual damage, or where compensation in money would not afford adequate relief. • Section 41: the situations in which an injunction cannot be granted, including to restrain a person from prosecuting a pending proceeding, to restrain proceedings in a court not subordinate to that from which the injunction is sought, and where equally efficacious relief can be obtained by any other usual mode of proceeding. • Section 42: an injunction to perform a negative agreement, granted in certain cases even where specific performance of the affirmative part cannot be enforced. |
4. The Two Compared
Basis | Temporary injunction | Perpetual or permanent injunction |
|---|---|---|
Source | Section 94(c) and Order XXXIX, CPC; regulated by the Code under Section 37(1) of the Specific Relief Act | Sections 37(2) and 38 to 42 of the Specific Relief Act, 1963 |
Nature | A PROCEDURAL relief, ancillary to the suit | A SUBSTANTIVE relief, and the very thing the suit claims |
When granted | At any stage of the suit, before judgment | Only by the decree made at the hearing and upon the merits |
On what material | AFFIDAVITS, without a trial | EVIDENCE, after a full trial |
The test | Prima facie case, balance of convenience, irreparable injury | A finding on the merits that the plaintiff is entitled to the right asserted |
Duration | Until the disposal of the suit or until further orders | Perpetual: the defendant is enjoined for good |
Breach | Order XXXIX Rule 2A: attachment of property and detention up to three months | Order XXI Rule 32: execution by attachment of property or detention in civil prison |
Appeal | Order XLIII Rule 1(r): an appeal lies from the order | Section 96: an appeal lies from the decree |
Effect on the merits | None. It decides nothing, and observations do not bind at the trial | It is the decision on the merits |
5. Two Points That Follow
§ A temporary injunction decides nothing It is granted on a prima facie view, on untested affidavits, often at very short notice. A party who obtains one has shown that there is a case fit to be tried, not a case proved. Observations made while granting or refusing it do not bind the court at the trial, and it is the usual practice for courts to say so expressly in the order. The converse is equally true. A party refused a temporary injunction has not lost his suit, and may succeed at the trial and obtain a perpetual injunction. |
§ The mandatory injunction, in both forms A mandatory injunction requires a party to do something rather than to refrain. As a final relief, it is granted under Section 39 of the Specific Relief Act, where it is necessary to prevent the breach of an obligation and the court is capable of enforcing the required acts. As an interim relief, a mandatory interim injunction is granted under Order XXXIX sparingly, because it alters the position before trial rather than preserving it, and the courts require a high degree of assurance that the applicant will succeed. |
6. Landmark Points
- Section 37, Specific Relief Act, 1963. Temporary injunctions are regulated by the Code; a perpetual injunction can be granted only by the decree made at the hearing and upon the merits.
- Order XXXIX Rules 1 and 2. The occasions on which a temporary injunction may be granted, with the triple test supplied by the case law.
- Section 38, Specific Relief Act. The grounds for a perpetual injunction, including where there is no standard for ascertaining damage or money would not afford adequate relief.
- Section 41, Specific Relief Act. The situations in which an injunction cannot be granted at all.
- Breach. Order XXXIX Rule 2A for a temporary injunction; Order XXI Rule 32 for a perpetual one granted by decree.
- A temporary injunction decides nothing on the merits, and observations on it do not bind the court at the trial.
7. Frequently Asked Questions
What is the difference between a temporary and a permanent injunction?
A temporary injunction is granted during the suit under Order XXXIX, on affidavits, to hold the position until the suit is decided. A permanent injunction is granted by the decree under the Specific Relief Act, after a trial on evidence, and binds the defendant perpetually.
Which statute governs each?
Section 37(1) of the Specific Relief Act, 1963 provides that temporary injunctions are regulated by the Code of Civil Procedure, so Section 94(c) and Order XXXIX apply. Sections 37(2) and 38 to 42 of the Specific Relief Act govern perpetual injunctions.
Can a permanent injunction be granted before the trial?
No. Section 37(2) provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit. Anything granted earlier is by definition temporary.
Does a temporary injunction mean the plaintiff has a good case?
It means he has a case fit to be tried. The order is made on a prima facie view, on untested affidavits, and observations made while granting or refusing it do not bind the court at the trial.
How is a breach of each enforced?
Breach of a temporary injunction is met under Order XXXIX Rule 2A, by attachment of property and detention in civil prison for up to three months. Breach of a perpetual injunction granted by decree is enforced in execution under Order XXI Rule 32.
What is a mandatory injunction?
One requiring a party to do an act rather than to refrain. As a final relief it is granted under Section 39 of the Specific Relief Act; as an interim relief it is granted under Order XXXIX sparingly, because it alters the position before trial rather than preserving it.
8. Related Topics in This CPC Series
- Order XXXIX: Temporary Injunctions and Interlocutory Orders
- Temporary Injunction and Stay Order Distinguished
- Execution of an Injunction Decree
- Supplemental Proceedings: Sections 94 and 95