DIFFERENCE BETWEEN PERMANENT AND MANDATORY INJUNCTION

ABSTRACT

Injunction one of the civil remedies is both a negative and a positive relief. It can either bar someone from doing or continuing to do something or force someone to perform a beneficial act. Injunction is a preventive relief and is of three types- temporary, perpetual and mandatory injunction. Temporary injunction is effective for a limited period. It ensures that the status quo of the subject matter in dispute remains intact while the case is being listened to and the decision is arrived at. Perpetual injunction is availed of at the time of decree issuance and permanently precludes the judgment-debtor from committing any act adversarial to the applicant. While both of these injunctions have a negative connotation, mandatory injunction forces the judgment-debtor to perform an enforceable order of the court. This article aims to explain two of these injunctions: permanent and mandatory injunctions in detail and also examines their differences.

Keywords

Injunction, Equity, Legal Remedy, Mandatory, Permanent.

INTRODUCTION

An injunction is a legal remedy ordained by the court to prevent someone from committing or continuing an act detrimental to another’s interest or on the positive side ordering the doer to initiate some positive action. Injunction had its roots from the Courts of Equity in England which further traces its origin to the Roman Law[1]. In India, Injunction can be pinpointed in Order XXXIX of Civil Procedure Court, 1908 (“CPC”) and Section 36-42 of the Specific Relief Act, 1963 (“SRA”). Injunction is a preventive relief that is it’s taken recourse to before some negative effect is spilled out on the applicant. This contrasts with punitive reliefs like monetary damages. Injunction is a civil remedy only and its issuance rests on the discretion of the court. For example, for breach of a contract, the aggrieved party has to recourse to monetary damages, specific performance of contract or injunction. Section 36 of the SRA lists two types of injunctions- temporary and perpetual. Although the SRA has in totality one additional injunction- mandatory injunction. Temporary injunction is available at any stage of the proceeding before the court and has a limited time frame to be effective. Considerations on which it’s granted are[2]–

Existence of prima facie case
The balance of convenience tilts more heavily to the side of the plaintiff such that the benefit aroused from granting injunction to the plaintiff is more than the detriment caused to the defendant
The circumstances should be such that if not for the injunction the loss would be irreparable by monetary compensation

Apart from these, the basic principles of equity have to be borne in mind while deciding on injunction- the plaintiff must come to the court with clean hands, etc.

Perpetual injunction is granted with the final decree of the court that is upon deciding on the merits of the case. It permanently restricts someone from committing any act which is detrimental to the title, enjoyment, or right of the other. The situations under which it can be invoked are enlisted in Section 38.

Mandatory injunction assumes a positive connotation as under it the court can force someone to perform a positive act to the benefit of the plaintiff, although the court should possess that capability to enforce it. An appropriate use of it can be in the specific performance of a contract.

To be eligible for injunction, the plaintiff must have possession of the land in dispute. Possession shouldn’t be unlawful like a trespasser and should be lawful, genuine title holder of the land as injunction can’t be used as a tool to evict lawful landowners[3]. An injunction is binding on the parties to the suit and their agents and incidentally be issued only against the parties to the suit[4].

PERMANENT INJUNCTION

Permanent or perpetual injunction permanently decrees the defendant from commission or continuance of any act violating the right, title or enjoyment of the plaintiff’s property[5]. The plaintiff must have the lawful possession of the land to be eligible to plead for injunction. In Zarif Ahamad (D) Thr. Lrs v. Mohd Farooq[6], the proof of the plaintiff paying house tax in the form of receipts and the same being recorded in a house tax register for several years was sufficient proof to execute a permanent injunction. The plaintiff must have some valid, cogent reason to plead for injunction as the issuance of the same impedes other’s otherwise lawful right[7]. The plaintiff must bear some personal interest in the matter that there exists a valid, legal right that requires protection from encroachment[8]. Once a permanent injunction has been issued against the judgment debtor and if he refuses to follow it, detention in civil prison is the next course of action[9]. Section 38 enlists the various situations under which permanent injunction could be issued-

A trustee’s “obligation”[10] or the legal duty is to act following the Indian Trust Act, 1882 and work for the welfare of the trust and the beneficiary. If the defendant being the trustee acts in a negative spirit or threatens to act such, then injunction is a remedy
When there’s no set parameter to calculate the damage caused or be caused. A factory emits toxic gases into the atmosphere, causing harm to public health and the environment. The extent of ecological damage and its long-term impact on human health cannot be precisely measured.
When compensation in monetary terms wouldn’t reverse the loss. A developer plans to demolish a historical building to construct a commercial complex. Money cannot compensate for the loss of historical and cultural heritage.
When injunction is necessary to uphold the principle of res judicata.

Here, are some of the important case laws, to better appreciate permanent injunction:

Hejian Solidkey Petroleum Machinery Co v. Indian Oil Corporation Ltd[11]– A contract incapable of being specifically enforced cannot be granted an injunction. This comes from reading Section 14(1) of SRA.
Ananthula Sudhakar Vs P.Buchi Reddy[12]– The Supreme Court emphasised that when the title of the property is in suspicion then mere filing a suit for perpetual injunction won’t suffice. First, a suit for declaration of title and possession with or without a consequential relief be filed. The court clarified that possession follows title, and in cases of vacant land, the person who establishes title is deemed to be in possession.
Sunil Kumar v. Ram Prakash[13]– A coparcener has the right to challenge an alienation but not to get an injunction issued. Section 38 of SRA bars injunction when an equally efficacious remedy is available.

MANDATORY INJUNCTION

Mandatory injunction induces a positive act on the part of the judgment-debtor to do something like prevent the breach of a contract which he is obligated to perform. It’s a rarity for courts to grant such injunction and mindful discretion needs to be exercised. The two types of mandatory injunctions are: enforcing and restorative[14]. Enforcing injunction compels the judgment-debtor to execute a positive obligation while restorative injunction commands the defendant to undo the consequences of his past action. Two essentials for a mandatory injunction are-

There must be an obligation resting on the defendant which when broken would cause harm to the plaintiff
The obligation should be such that the court has the power to enforce it. In cases requiring constant supervision like in construction contracts, the court can’t issue injunction

The types of situations where a mandatory injunction be issued are-

Trespass– It’s the direct unlawful interference in someone’s lawful possession of the law or constricts his ability to fully enjoy the benefit arising from such possession. For example, constructing a structure on someone’s land, though under a bona fide belief of having the title to it. Then, after the issue of title has been resolved by the court, the plaintiff can seek a mandatory injunction to demolish that structure.
Co-owners– The term means equal ownership of the land and hence any pertinent decision related to it needs to be taken by consensus. If one of the co-owners, decides to construct a building without confiding in it to the other, then that aggrieved co-owner can file a plaint for demolishing of the structure by mandatory injunction. In Chhedi lal Vs. Chhote lal[15], it was stated that the relief of demolition and injunction would be available to the plaintiff subject to the circumstances of the case. Like in Prabhoo v. Doodnath[16](“Prabhoo”), the order to issue a mandatory injunction was considered on two grounds-

The plaintiff approached the court at the earliest. Had he waited for the construction to be completed and then approached the court, the demand would have been rejected since his conduct can be inferred to show approval of the action
The building was half completed and was very low in monetary value. Had the defendant infused considerable money and resources, then demolition wouldn’t have been feasible

Overhanging of branches- When there is a reasonable apprehension of damage to the crops of the owner of a land due to the neighbour’s overhanging branches like its leaves casting its shade, falling of the leaves and water dripping from those leaves during rain, though there are no actual damages, then equity allows the grant of mandatory injunction to trim those branches[17].
Termination of license- Where a license period had expired and the defendant refuses to vacate the premises, the plaintiff as the lawful possessor of the land has the right to seek mandatory injunction to evict him[18].

Though mandatory injunction, if issued, is ordered at the end of the case after hearing both sides and deciding upon the merits of the case, there exists an Interlocutory Mandatory injunction which can be issued at the stage of proceedings continuing before the court if some special circumstances exit and if not issued would tinker with the plaintiff’s rights substantially. The guidelines to be adhered to in such injunction are[19]–

The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
The balance of convenience is in favour of the one seeking such relief

DIFFERENCE BETWEEN PERMANENT AND MANDATORY INJUNCTION

Permanent injunction is a measure of last resort due to its intense effect on the judgment-debtor. Under SRA, a plaintiff has to exhaust all other available reliefs or convince the court that the archetype remedy for his wrong is permanent injunction. In K. Venkata Rao v Sunkara Venkata Rao[20], the plaintiff paid an advance to gain possession of the land to the defendant and was put in possession by them. It was alleged that he held back the balance amount and at the time defendants re-entered the land and have since been claiming possession. Claim for permanent injunction was headed against as an alternative remedy available of specific performance of the agreement of sale was available. On the other hand, mandatory injunction can be availed of as a first measure like a court-enforceable contractual obligation is forced upon the judgment debtor if it is not barred by Section 41 in any manner.
Since a permanent injunction forbids the other to commit or continue any adversarial act for infinity, it’s only after listening to arguments from both sides and adjudicating upon merit that relief be obtained in a decree form[21] that is at the end. But an interlocutory mandatory injunction be availed of as an interim relief in rare scenarios “if the court is satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice.”[22] After assessing the circumstances of the case and the parties’ conduct, interlocutory mandatory injunction is achievable.
Permanent injunction is a negative relief as it restricts the other from certain acts. For example, a court can order the judgment debtor from further building a structure on the lawful grounds of the plaintiff. It’s a negative prohibition. Whereas mandatory injunction induces a positive act from the judgment debtor for the benefit of the plaintiff. Like in the Prabhoo case, the court ordered the co-owner to demolish the half-completed structure, constructed without the consent of another co-owner.
Permanent injunction is prospective in nature. It prohibits the other from indulging in the alleged acts in the future for perpetuity. Whereas, mandatory injunction has retrospective applicability as it aims to rectify the wrongs done in the past like enforcing a contract to induce specific performance to remedy the breach of contract.

CONCLUSION

Injunctions are vital remedies aimed at preventing harm and ensuring compliance with legal obligations. While permanent injunction poses a perpetual restriction on an individual’s actions, mandatory injunctions compel a party to perform specific act to restore the rights of the aggrieved party. Both remedies stem from equitable principles, ensuring that justice is served where monetary compensation is insufficient.

Permanent injunctions primarily act as prohibitive measure, preventing further violations of rights and maintaining the status quo. Their issuance depends on factors such as irreparable harm and the inadequacy of the other remedies. In contrast, mandatory injunctions enforce affirmative obligation, often requiring a high degree of judicial discretion due to their potential to significantly impact the judgment-debtor. Courts generally grant mandatory injunctions cautiously ensuring that the obligations imposed are enforceable and just.

The distinction between these injunctions lies in their function- while permanent injunctions focus on future restrictions, mandatory injunctions address past transgressions and seek corrective action. The principles governing these remedies highlight the judiciary’s role in balancing equitable relief with practical enforceability. As legal frameworks, the nuanced application of injunctions will continue to shape equitable jurisprudence, reinforcing the importance of judicial discretion in civil disputes.

REFERENCES

https://blog.ipleaders.in/perpetual-injunction/
THE PRINCIPLEs OF MANDATORY INJUNCTION By, Smt. Sk. Shireen, Principal Junior Civil Judge Cum Judicial Magistrate of First class, Sompeta
A critical study on Injunction of Principles and Procedure in India by Pathan Mohammad Naveed Zafar Ali khan.
DECLARATION AND INJUNCTION SUITS by Sri G.Shiva Prasad Yadav, Senior Civil Judge, Proddatur.
The Specific Relief Act, 1963, No. 47, Acts of Parliament, 1963 (India).

[1] DECLARATION AND INJUNCTION SUITS, https://cdnbbsr.s3waas.gov.in/s3ec03333cb763facc6ce398ff83845f22/uploads/2024/03/2024031477.pdf (last visited Jan 27, 2025).

[2] Id.

[3] Premji Ratansey Shah v. Union of India, AIR 1994 SC 376.

[4] DECLARATION AND INJUNCTION SUITS, supra note 1.

[5] The Specific Relief Act, 1963, § 38(3), No. 47, Acts of Parliament, 1963 (India).

[6] AIR 2015 SC 1236.

[7] Dhanya Kumar Jain v. Rajendra Prasad, AIR 1978 ALL 469.

[8] Narandas Morardas Gaziwala v. S. P. Am. Papammal, AIR 1967 SC 333.

[9]Jay Dayal v. Krishan Lal Garg, AIR 1997 SC 3765.

[10] The Specific Relief Act, 1963, § 2(a), No. 47, Acts of Parliament, 1963 (India).

[11] 2015 Latest Caselaw 5354 Del.

[12] AIR 2008 SUPREME COURT 2033.

[13] AIR 1988 SC 576.

[14] a critical study on injunction of principles and procedure in india.pdf, https://shodhgangotri.inflibnet.ac.in/bitstream/20.500.14146/11637/1/a%20critical%20study%20on%20injunction%20of%20%20principles%20and%20procedure%20in%20india.pdf (last visited Jan 27, 2025).

[15] AIR 1951 ALL 199.

[16] AIR 1978 ALL 178.

[17] Putrayar v. Krishna, AIR 1935 Madras 31.

[18] PM Aravindan v KP Udayakumar, 2021 SCC OnLine Ker 2886.

[19] Dorab Cawasji Warden v. Coomi Sorab Warden, 1990 (2) SCC 117.

[20] 1998(6) ALD 278.

[21] Gowardhandas Rathi v. Corporation of Calcutta, AIR 1970 CAL 539.

[22] Hammad Ahmed v. Abdul Majeed, AIR 2019 SC 650.

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