Preventive Relief under Specific Relief Act

Preventive relief is among the most important remedies in Indian civil law, ensuring that parties can approach the court to stop a threatened or continuing wrong before actual harm is done. 

The Specific Relief Act, 1963, devotes an entire part to this concept, recognising that simply awarding monetary compensation may not always provide adequate justice. Instead, the law provides a framework for granting injunctions—orders that either restrain or compel certain actions—to protect legal rights effectively and promptly.

Why Preventive Relief?

Legal disputes often involve situations where waiting until a full trial or final judgement could render any remedy meaningless. For example, if a builder threatens to demolish a heritage building or a party is about to encroach upon your land, monetary damages later may not restore your loss or prevent irreparable harm.

Preventive relief steps in precisely at such moments. It works as a shield to prevent an anticipated or ongoing injury, instead of merely compensating for it after the damage is done. In this way, it helps maintain the status quo and ensure justice is not rendered nugatory by the mere passage of time or continued wrongful actions.

Legislative Background of Preventive Relief

The Specific Relief Act, 1963, replaced the earlier Act of 1877 and was inspired by the recommendations of the Ninth Law Commission. Its purpose was to make civil remedies more effective and fair, especially where the Indian Contract Act fell short. Part III of the Specific Relief Act, 1963, spanning Sections 36 to 44, is dedicated exclusively to preventive relief.

Preventive relief under the Specific Relief Act, 1963 is mainly granted by way of injunctions, which the Act divides into different types—temporary, perpetual, and mandatory.

Overview of Statutory Provisions on Preventive Relief

The key provisions relating to preventive relief under the SRA are:

• Section 36 – How preventive relief is granted
• Section 37 – Temporary and perpetual injunctions
• Section 38 – Circumstances for granting perpetual injunctions
• Section 39 – Mandatory injunctions
• Section 40 – Damages in lieu of, or in addition to, injunctions
• Section 41 – When injunctions are refused
• Section 42 – Injunctions to perform negative agreements

Types of Injunctions under the Specific Relief Act, 1963

Temporary Injunctions

A temporary injunction is an order granted by the court to maintain the status quo until a certain time or further order, generally during the pendency of a suit. The idea is to prevent irreparable harm or injustice before the final disposal of the case.

Legal Basis: Section 37(1) of the Specific Relief Act, 1963 read with Order XXXIX of the Code of Civil Procedure, 1908 (CPC).

Key Features:

• Can be granted at any stage of the suit.
• Remains in force for a specific period or until further order.
• Governed by the CPC, not just the Specific Relief Act, 1963.
• Aim is to prevent “fait accompli” situations where a wrong once done cannot be undone.

Prerequisites: Courts generally look for the following before granting a temporary injunction:

• Prima Facie Case: The plaintiff must show a reasonable case in their favour.
• Irreparable Injury: The harm cannot be compensated by monetary damages.
• Balance of Convenience: The inconvenience to the plaintiff if injunction is not granted must outweigh the inconvenience to the defendant if it is granted.
• No Adequate Remedy: If another equally effective remedy exists, injunction may not be granted.

Example: A landowner files a suit to stop a neighbour from building on a disputed piece of land until the court decides the matter. The court may grant a temporary injunction, maintaining status quo.

Perpetual (Permanent) Injunctions

A perpetual or permanent injunction is a final order by the court, granted only after a full trial on merits, which restrains a party from committing or continuing a wrongful act permanently.

Legal Basis: Section 37(2) and Section 38 of the Specific Relief Act, 1963.

Key Characteristics:

• It is granted by a decree, not just an order.
• It is in personam (against a particular person), not in rem (against the world).
• It can bind the legal representatives of the parties.
• It may be inherited in cases involving heritable and partible rights.

When Granted: Section 38 specifies the circumstances:

• To prevent breach of an obligation (express or implied) in the plaintiff’s favour.
• If the obligation arises from a contract, the court must also consider rules in Chapter II of the Specific Relief Act, 1963.
• Where a defendant invades or threatens the plaintiff’s right to property, and:
  • The defendant is a trustee,
  • There is no standard for ascertaining actual damages,
  • Monetary compensation is inadequate, or
  • To prevent multiplicity of proceedings.

Mandatory Injunctions

A mandatory injunction is an order compelling a party to do a specific act to prevent a breach of obligation.

Legal Basis: Section 39 of the Specific Relief Act, 1963.

Key Points:

• Not just negative restraint but a positive compulsion.
• Used where simply restraining the defendant is insufficient to protect the plaintiff’s right.
• The court exercises heightened discretion before granting such “majestic” relief.

Example: If a builder has partially blocked a common passage, the court can order removal of the obstruction through a mandatory injunction.

Procedure for Obtaining an Injunction

• Application: Usually initiated by an application (with affidavit) during or before the main suit. Application must state grounds, evidence, and, where required, urgency.
• Notice: Normally, notice of the application is given to the opposite party. In urgent cases, ex parte injunctions may be granted, but court must record reasons and dispose of the main application within 30 days.
• Security: Courts may require the applicant to furnish security to compensate the other side if the injunction is later found to be wrongly granted.
• Enforcement: Disobedience can lead to civil imprisonment or attachment and sale of property (Order XXI, Rule 32 CPC).

Damages in Addition to or in Lieu of Injunction (Section 40)

• Plaintiff may claim damages along with or instead of an injunction.
• The court cannot grant damages on its own unless claimed.
• The plaint can be amended to include damages if not claimed initially.
• If a suit for injunction is dismissed, the plaintiff is barred from later suing for damages for the same breach.

Situations Where Injunctions are Refused (Section 41)

The Specific Relief Act, 1963 sets out specific circumstances where injunctions will not be granted, such as:

• To restrain someone from prosecuting a pending judicial proceeding, unless needed to prevent multiple proceedings.
• To restrain someone from initiating a case in a court not subordinate to the one granting the injunction.
• To restrain criminal proceedings or applications to legislative bodies.
• Where the contract involved is not specifically enforceable.
• To prevent acts where it is not clear they will amount to nuisance.
• Where the plaintiff has acquiesced to the breach.
• Where equally efficacious relief is available by other means, except in cases of breach of trust.
• If it would impede or delay public infrastructure projects.
• If the plaintiff has acted inequitably or lacks a genuine interest.

This ensures that injunctions are not used to abuse process or obstruct the course of justice unnecessarily.

Injunctions for Negative Agreements (Section 42)

• In contracts involving a positive and a negative agreement, the court can still grant an injunction to enforce the negative part even if the positive part is not specifically enforceable, provided the plaintiff has performed their obligations.
• For example, in a contract of employment, even if specific performance is not possible, a court may restrain an employee from joining a competitor, enforcing the negative covenant.

Principles and Judicial Discretion

Courts in India rely on certain maxims of equity and guiding principles when deciding whether to grant preventive relief:

• He who seeks equity must do equity: The plaintiff must show fair conduct.
• He who comes to equity must come with clean hands: Any wrongdoing by the plaintiff may bar relief.
• Ubi jus ibi remedium: Where there is a right, there must be a remedy.

The grant of an injunction is always at the court’s discretion, exercised judicially and not arbitrarily.

Conclusion

Preventive relief under the Specific Relief Act, 1963 is a powerful remedy that protects parties from anticipated or continuing harm by restraining or compelling certain actions. It is not a remedy granted as of right, but rather at the discretion of the court, based on well-settled legal and equitable principles. 

The balance between the rights of the plaintiff and the convenience of the defendant, the urgency of the situation, and the inadequacy of other remedies all play a key role in deciding whether an injunction should be granted.