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sale deed
October 21, 2013


(Part- II)


During 14th century, England had two distinct court systems. These are well known as ‘ Law Courts’ and ‘Equity Courts’. America’s court system drew heavily on its English origins. The law of injunction in our country is having its origin in the Equity Jurisprudence of England from which we have inherited the present administration of law. England too in its turn borrowed it from the Roman Law wherein it was known as Interdict. The Roman Interdicts were categorized in three parts such as prohibitory, restitutory and exhibitory. Law courts were divided by their development of the common law. Equity courts had a more flexible approach to cases and provided for broad remedies. In our country, the Specific Relief Act, 1963 provides a large number of remedial aspects of Law. This Act came in force in the replacement of earlier Act of 1877. 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 particular act or thing.

• An injunction is an equitable remedy; the party , who seeks relief, must come with clean hands.
• Judicial process operating in personam,and requiring the person to whom it is directed to do or refrain from doing a particular thing.”
• Interdicts were “certain forms of words, by which the Praetor (the chief judicial magistrate of Rome) either commanded or prohibited something to be done;
• Chancery became a court of law (which occurred c. 1380-1400 A.D.).
• Chancery and its development into a court is another aspect to understand the history of injunctions.
• Injunctions appeared in Chancery as early as the 1390’s. Injunction cases in Chancery’s early period (from the 1390’s to about 1500) were quite diverse, involving such disparate areas of law as real property, personal property, tort, and Contract.

Case-Law- 1439 – Injunction Suit- At Common Law.
Defendant told the plaintiff that he desired to marry her, and asked her for a sum of gold and currency for wedding costs and business investments (to make him a more profitable husband). She gave him the gold and currency without demanding a formal contract of marriage; he then married another, and refused to return the gold and currency. Plaintiff sought an order from the Chancellor to compel him to do so. Here, an injunction was sought because there was no suitable common law form of relief.”( See Baildon, Introduction to SELECT CASES iN CHANCERY A.D. 1364 TO 1471 xix (Selden Society Vol. 10))

Kum R.Preksha Vs Prasad G.N, Writ petition no. 6523/2013(GM FC), Firstly, wife filed a MC 3749/12 for restitution of conjugal rights and temporary injunction restrain her husband to marry anthor girl during pendency of the suit. Lower court granted injunction. High Court set asides it.

An injunction was sought against waste in Petetson v. Shelley, 73 where the plaintiff, who had a reversionary interest in land, wanted to prevent the present tenant from committing waste of the timber.( Choyce Cases 117, 21 Eng. Rep. 72 (Ch. 1577))
Contempt of court: 1576-1577
Injunctions could extend beyond the parties to include their attorneys and counsellors. The latter could be enjoined from proceeding at law or enforcinga judgment, 95 and they could be held in contempt of Chancery if they violated the injunction. (Allen v. Dingley, Choyce Cases 113, 21 Eng. Rep. 70 (Ch. 1576-1577))

Cardinal Wolsey was accused of certain improprieties by articles of impeachment that were drawn up against him after he lost the royal favor
and was dismissed from office by Henry VIII:
No complaint was made against him of bribery or corruption, and the charges were only that he had examined many matters in Chancery after judgment had been given at common law; – that he had unduly granted injunctions; – that when his injunctions were disregarded by the Judges, he had sent for those venerable magistrates and sharply reprimanded them for their obstinancy.
(E. COKE, INsTrruTEs 88-95 (1628 & photo reprint 1979), for a
list of all 44 articles of impeachment against Wolsey.)
It is thus known that Wolsey not only issued injunctions too freely, but was also high-handed in his dealings with the judges. That there was friction between the courts of law and Chancery during his Chancellorship is understandable. In 1616, the tension between common law and Chancery flared into sharp and open conflict. In our country, the Specific Relief Act, 1963 provides a large number of remedial aspects of Law. This Act came in force in the replacement of earlier Act of 1877. Injunction is a judicial process by which one who has invaded or is is threatening t invade the rights, legal or equitable, of another, is ordered to refrain from doing, or to do a particular act or thing.

Section. 38. Perpetual injunction when granted.-
1. Subject to the other provisions contained in or referred to by this Chapter,
2. to prevent the breach of an obligation existing in his favour of plaintiff, whether expressly or by implication.
3. If such obligation arises from contract, follow the provisions contained in Chapter II.
4. (3) If defendant invades or threatens to invade the plaintiff’ s right to, or enjoyment of, property,
grant a perpetual injunction in the following cases, namely:-
1. where the defendant is trustee
2. if there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
3. if invasion – that compensation in money would not afford adequate relief;
4. to prevent a multiplicity of judicial proceedings.

Section 41. Injunction when refused.- An injunction cannot be granted
Any person from prosecuting a judicial proceeding pending (Exception:- to prevent a multiplicity of proceedings)
1. from instituting or prosecuting civil or criminal
2. from applying to any legislative body;
3. to prevent the breach of a contract the performance of which would not be specifically enforced;
4. to prevent, on the ground of nuisance, when such act is not reasonably clear that it will be a nuisance;
5. to prevent a continuing breach in which the plaintiff has acquiesced;
6. when efficacious relief is available
7. to disentitle any person to the assistance of the court;
8. when the plaintiff has no personal interest in the matter.
39. Mandatory injunctions.-
 To prevent the breach of an obligation,
 Necessity to compel the performance of certain acts
 The court is capable of enforcing,
 It is a discretionary relief.
40. Damages in lieu of, or in addition to, injunction.-
 The plaintiff may claim damages under section 38, or under section 39
 The plaintiff shall claim damages in his plaint: plaint can be amended at any stage of the suit.
 The dismissal of a suit is bar to claim damages.

1) An injunction is an equitable remedy;
2) The party , who seeks equitable relief, must come with clean hands
3) A perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation in his favour.
4) Injunction is an equitable remedy.(AIR 1966 Guj.189)
5) There must be breach of an obligation or infringement of a legal right. (1981 ALL.WC 68)
6) The possession must be lawful possession (AIR 1977 Orissa 152)
7) In the absence of irreparable loss, damages is the remedy. (AIR 1979 ALL 184)
8) Where there is an efficacious relief, no injunction should be granted. ( AIR 1980 P&H 351)
9) Juridical possession is also a valid ground to grant injunction. (AIR 1986 Kar 194)
10) Question of title may be incidentally gone into, while granting an injunction (AIR 1981 SC 1183)
11) Injunction cannot be granted in case of illegal agreement (ILR 1 Bom 550, Bhikaji vs Bapu Saju)
12) No injunction shall be granted in case of an agreement with minor. (See secs. 11 and 12 of Indian Contract Act.)
13) Some time symbolic delivery is sufficient to sustain an action for injunction (AIR 1977 Orissa 152)
14) Injunction by a person in possession without title. (AIR 1986 Kar 224)
15) Injunction in case of co-owners (AIR 1969 Goa 90), and (AIR 1982 All 80)
16) Injunction and sec.53A of T.P.Act. (Different views) (see AIR 1976 AP 395)
17) Injunction in case of nuisance (AIR 1937 Madras 21, Syed Pitchai vs Devaji Rao)
18) Injunction in case of easementary right (AIR 1974 Orissa 89, Dhannala vs Chittar Singh)
19) Injunction against trustee (ILR 30 Mad, Krishna swamy vs Samram)
20) Injunction to prevent waste (1714) 2 Atk 182, Bigson vs Smith
21) Injunction against trade marks (AIR 1965 Madras 250 at 251, T.M.Abdul Rahim and co vs Ahmed Basha)
22) No injunction in case of caste questions. (AIR 1932 Bom.122, Nagindas vs Somnath)
23) Injunction against Trade Unions (AIR 1963 Patna 170)
24) Injunction by insolvency court (AIR 1954 Mad 12)
25) Injunction against Government. (AIR 1969 Pat.72 Sabodh Gopal vs State of Bihar)
26) Injunction in case of Companies (AIR 1936 All 568, British India Corp. vs Robert Menzies)
27) Mandatory injunctions (AIR 1929 Lah. 73, Bhagawan Singh Vs Hari Singh)
28) Principles and conditions to grant mandatory injunction. (AIR 1929 Bom. 94, Ardeshir Jiwanji vs Aimai Kuvarji)
29) To grant damages in injunction suits, (AIR 1954 Sau.139; 9th Report of Law Commission; AIR 1975 Mad 189)
30) To refuse injunction. (AIR 1931 Cal. 279); AIR 1949 All 301; AIR 1978 Mad. 374)

Also see IMPORTANT recent rulings:
1. When injunctions cannot be granted (2011) 6 SCC 617, AC Muthiah’s case
2. Counter claim iin injunction suit, 2011(9) sc 332. Held. After framing issues, cannot be allowed.
3.Injunctions – Joint family properties. AIR 1988 SC 576
4.It is well settled that the purchaser of a coparcener’s undivided interest in joint family property is not entitled to possession what he has purchased. (1966 (1) SCR 628) It is observed in AIR 2008 SC 2489.
5.Part of joint family properties – agreement of sale – 5 judges bench – AIR 1953 SC 443.
6. Revenue record is document of title. AIR 2008 SC 901
7. Pendent lite transaction in injunction suit, (2009) 12 SC 2003
8. Continous possession – termination of agency – Injunction -2011 (4) SCALE 209
9. Scope of injunctions –Anathula Sudhakar vs P.Butchi Reddy, AIR 2008 SC 2003

To sum up succinctly, injunction means ‘It is an ordr of Court by which an individual is required to perform, or is restrained from performing, a particular act. It is judicial process. The courts exercise their power to issue injunctions judiciously, and only when necessity exists. An injunction is generally issued only in cases where irreparable injury to the rights of an individual would result otherwise. It should be readily apparent to the court that some act has been performed, or is threatened, that will produce irreparable injury to the party seeking the injunction. An injury is generally considered irreparable when it cannot be adequately compensated by an award of damages. The pecuniary damage that would be incurred from the threatened action need not be great, however. If a loss can be calculated in terms of money, there is no irreparable injury. The consequent refusal by a court to grant an injunction is, therefore, proper. Loss of profits alone is insufficient to establish irreparable injury. The potential destruction of property is sufficient. Injunctive relief is not a matter of right, but its denial is within the discretion of the court. Whether or not an injunction will be granted varies with the facts of each case.


  • http://a%20href=#!%20class=url%20rel=ugc%20external%20nofollowmohamediqbal/a

    I read the law of injunction it is very useful article.likewise other subject articles are welcome.thanks.

  • http://a%20href=#!%20class=url%20rel=ugc%20external%20nofollowSandeepreddy/a

    Grand father gave gift deed and cancelled without court permission and sale the property lokadalat award mentioned in the property valid or not

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