This article has been written by Shivani Kumari, a first-year law student of Lloyd law college. The article enunciates about the preventive relief under part 3 of the specific relief Act, 1963.
Specific Relief Act as the name suggests is an Act which deals with the recovery of damages for some specific purpose. Damages can be in monetary form or injunction. This is one of the branches of the Indian contract Act, 1872.
The Act came into force in 1963 intending to provide relief on the damages of the injured person. The injured person can approach this Act only when the other party withdraws himself from the performance of a particular promise causing damage to the plaintiff.
Specific Relief Act
Specific relief Act deals with something specific i.e. an exact, particular, or determined relief. It is a remedy which aims at the exact fulfilment of an obligation or specific performance of a contract. According to section4 of this Act, Specific relief can be granted only to enforce individual civil rights and not for the mere purpose of enforcing a penal law. This remedy is available for those whose contractual rights or civil rights have been hampered and the damages for the same cannot be measured in monetary value or the monetary compensation would not suffice.
Remedies under Specific Relief Act
- Recovery of possession of an immovable property
- Recovery of possession of the movable property
- Specific performance of the contract
- Rectification of contract
- Rescission of contract
- Cancellation of an instrument
- Declaratory decree
An Injunction is an order or decree by which a party to an action is required to do, or restrain from doing a particular thing. It is a judicial process and can only be passed by the judge of a hon’ble court.
Preventive relief is a specific relief from the court which prevents or restricts the party from performing certain specific acts, for which the relief shall be prescribed. Such reliefs can be mainly imposed in the form of injunctions. Preventive injunctions are mentioned under part3, section 36to44 of the specific relief Act, 1963. It may be divided into different types namely temporary, perpetual, and mandatory injunctions. All these injunctions are passed only by the discretion of judges of the hon’ble courts.
Section 37(1) of the Specific Relief Act, deals with the concept of temporary injunction. It is an injunction where the court orders a party to perform an action or to restrain from acting. It is interim by nature as it is issued for a specific period of time or until the further order of the court. A Temporary injunction can be granted at any period of the suit i.e. it can be granted on the very first day of the trial or maybe in the middle of the proceeding but can only be granted by the discretion of the judge. This happens because in such cases the objective of the court is to preserve the matter in the status quo until the case can be tried. It is governed by order 39 under code of civil procedure. A Temporary injunction can be prayed by the plaintiff by attaching an application for the same. There are some essential conditions of a temporary injunction. They are-
Prima facie case
It means by seeing the application for the very first time, the court wants to preserve the matter, a temporary injunction can be granted.
Irreparable loss if an injunction is not granted
The amount of loss is calculated and based on that it is determined that the loss suffered by the plaintiff is irreparable and cannot be fulfilled by monetary compensation only.
Balance of inconvenience if an injunction does not issue
It checks on the inconvenience suffered by the parties in terms of loss and according to the same it grants an injunction.
Section 37(2) of the specific relief Act, deals with the concept of the perpetual injunction. It is the final or permanent order of the court which is passed or granted by the decree i.e. after a full hearing of the suit or upon the merits of the suit. This injunction determines the final rights of the parties involved. It is governed by the provision of the Specific Relief Act. It is permanent by nature. Perpetual injunction is granted mainly by three provisions which are stated under section 38 of the Specific Relief Act. These provisions are as follows-
- 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.
This is granted by the court, only when, the court satisfies that the plaintiff has the right and the defendant is infringing that right by breaching his duties, enforceable by law. This is the last option left with the court, if the bench can take any other remedy then this remedy would not be granted.
- When any such obligation arises from a contract, the court shall be guided by the rules and provisions contained in Chapter 2.
Chapter 2 of the Specific Relief Act deals with the special performance of a contract. If there is an obligation arising out of a contract and one party is specifically not performing that obligation then the court will follow the rules and regulations of chapter2.
- 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:—
- Where the defendant is a trustee of the property for the plaintiff
- Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
- Where the invasion is such that compensation in money would not afford adequate relief
- Where the injunction is necessary to prevent a multiplicity of judicial proceedings.
This injunction is quite similar to the perpetual injunction but, as stated under section 39 of the Specific Relief Act, the court grants this injunction not to prevent any action by the defendant but to perform a certain specific action and to prevent a breach of contract by any such act of the defendant. It is a positive injunction. The action taken must create an effect on the object and it must eventually lead to the same object as it was before the breach.
For instance- X and Y are neighbours. Y builds a building adjacent to X’s building. The act stopped sunlight from entering X’s building. Here X can sue Y under specific Relief act and can claim for a perpetual injunction so that Y cannot do this act again and can claim for a mandatory injunction so that Y can break this building and ultimately come to the situation before this act.
To grant a mandatory injunction, the court sees that the plaintiff has claimed it at an early stage so that it can be stopped. If it is claimed at a very later stage then the defendant can also claim for damages.
Damages Instead of, or in addition to, Injunction
- The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to or in substitution for, such injunction and the court may, if it thinks fit, award such damages.
- No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint: Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.
- The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach
Injunction when Refused
There are certain conditions in which the injunctions cannot be granted. It can happen if it leads
- To restrain any person from prosecuting a judicial proceeding.
- To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;
- To restrain any person from applying to any legislative body;
- To restrain any person from instituting or prosecuting any proceeding in a criminal matter;
- To prevent the breach of a contract the performance of which would not be specifically enforced;
- To prevent, on the ground of nuisance
- To prevent a continuing breach in which the plaintiff has acquiesced;
- When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust
- When the conduct of the plaintiff or his agents has been such as to disentitle him to be the assistance of the court;
- When the plaintiff has no personal interest in the matter.
A small change can give immense relief. Specific Relief Act,1963 has a set of remedies and reliefs given to the parties of the suit. The act of Specific Relief aims to provide justice to all and not inequitable favouring a single party. This Act grants relief for the infringement of civil rights and not for any penal laws. You cannot go back and change the beginning, but with specific Relief Act, you can start now and change the ending.
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