Injunction when Refused – Section 41 | Specific Relief Act



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This consideration also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction.

2. Court immediately below—Meaning of:

The expression “Court im­mediately below” occurring in Article 133 (1) of the Constitution does not mean “Court subordinate”.

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3. Equitable principle:

Mow access to Court in search of justice ac­cording to law is the right of a person who complains of infringement of his legally protected interest and a fortiori therefore, no other Court can by its action impede access to justice. This principle is deducible from the Consti­tution which seeks to set up a society governed by rule of law’. As a corol­lary, it must yield to another principle that the superior Court can injunct a person by restraining him from instituting or prosecuting a proceeding be­fore a subordinate Court.

Save this specific carving out of the area where access to justice may be impeded by an injunction of the Court, the Legis­lature desired that the Courts ordinarily should not impede access to jus­tice through Court. This appears to be the equitable principle underlying Section 41 (b). Accordingly, it must receive such interpretation as would advance the intendment, and thwart the mischief it was enacted to sup­press and to keep the path of access to justice Court unobstructed.

Viewed from a slightly different angle, it would appear that the legal system in this country envisages obtaining of redressal of wrong or relief against unjust denial thereof by approaching the Court set up for the pur­pose and invested with power both substantive and p edural to do jus­tice that is to grant relief against invasion or violation of legally protected interests which are jurisprudentially called rights.

If a person complaining of invasion or violation of his rights is injuncted from approaching the Court set up to grant relief by an action brought by the opposite side against whom he has a claim and which he wanted to enforce through Court, he would have, first to defend the action establishing that he has a just claim and he cannot be restrained from approaching the Court to obtain relief.

A person having a legal right and complains of its violation or infringement, can approach the Court and seek relief. When such person is injuncted from approaching the court, he has to vindicate the right and then when injunction is vacated, he has to approach the Court for relief. In other words, he would have to go through the gamut over again: When defending against a claim of injunction the person vindicates the claim and right to enforce the same.

If successful he does not get relief but a door to Court which was bolted in his face is opened. Why should he be exposed to multiplicity of proceedings? In order to avoid such a situated the Legislature enacted Sec­tion 41 (b) and statutorily provided that an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. Ordinarily a preventive relief by way of prohibitory injunction cannot be granted by a Court with a view to restraining any person from instituting or prosecuting any proceeding and this is subject to one exception enacted in larger public interest, namely, a superior Court can injunct a person from instituting or prosecuting an action in a subordinate Court with a view to regulating the proceeding before the subordinate Courts. At any rate, the Court is pre­cluded by a statutory provision from granting an injunction restraining a person from instituting or prosecuting a proceeding in a Court of co-ordinate jurisdiction or superior jurisdiction.

4. Grant of injunction:

Grant of injunction is a personal right and not to be issued against legitimate owner. Injunction cannot be issued in favour of a trespasser.

5. Grant of restraint order:

The relief claimed was to restrain the de­fendants from proceedings to enforce an award passed by an American Court. The Supreme Court held that facts of that case are eminently suit­able for granting a restraint order under Order XXXIX, C.P.C. In that connec­tion, the Supreme ‘Court made the following observation:

“It is no doubt true that this Court sparingly exercises the jurisdic­tion to restrain a party from proceeding further with an action in a foreign Court. We have the utmost respect for the American Court. The question, however, is whether on the facts and circumstances of this case, it would not be unjust and unreasonable not to restrain the Western Company from proceeding further with the action in the American Court in the facts and circumstances outlined earlier. We would be extremely slow to grant such a restraint order but in the facts and circumstances of this matter, we are convinced that this is one of those rare cases where we could be failing in our duty if we hesitate in granting the restraint order, for, to oblige the O.n.G.C. to face the aforesaid proceedings in the American Court would be oppressive in the facts and circumstances discussed earlier. But before we pass an appropriate order in this behalf, we must deal with the plea that the High Court does not have the jurisdiction to grant such a restraint order even if the proceeding in the foreign Court is considered to be oppressive. Counsel for the respondent has placed reliance on Cotton Corporation of India Ltd. v. Unitea Industrial Bank Ltd., AIR 1983 SC 1272, in support of this plea. In Cotton Corporation’s case the question before the Court was whether in the context of Section 41 (b) of the Specific Relief Act, the Court was justified in granting the injunction….”

“This provision will be attracted only in a fact-situation where an injunction is sought to restrain a party from instituting or prosecut­ing any action in a Court in India which is either of coordinate juris­diction or is higher to the Court for which the injunction is sought in the hierarchy of Courts in India.”

It is viewed, this decision only lays down that Section 41 (b) may not be a bar to issue an injunction in prosecuting any action in a Court outside India. In holding so, their Lordships derived support from an earlier decision of the Supreme Court in Tractoroexport, Moscow v. Tarapore St Company, AIR 197 1 SC 1, where the Court restrained a party from proceeding with an arbitration proceedings in Moscow. In the circumstances, the learned Counsel for the respondent cannot call in aid the above decision to contend that the Court is competent to issue an injunction to restrain a Court in India by virtue of its inherent power or power under Order XXXIX, C.P.C. in a case which squarely falls under Section 41 (b) of the Specific Relief Act.

6. Inherent power of Court:

While exercising the inherent power, the Court should not overlook the statutory provision which clearly indicates that injunction to restrain initiation of proceeding cannot be granted. Sec­tion 41 (b) is one such provision. And it must be remembered that inherent power of the Court cannot be invoked to nullify a statutory provision.

The Court has got inherent power to grant injunction apart from the power conferred under Order XXXIX, C.P.C. It is no doubt true that in the case before them, as pointed by the learned Counsel the Supreme Court was concerned only with an injunction restraining a person from proceed­ing with another suit and was not concerned with a case of an injunction restraining a person from executing a decree lawfully obtained. But the principle enunciated by the Supreme Court is of universal application, viz., that while the provisions to issue temporary injunctions are to be found in Order XXXIX, Rules 1 and 2 C.P.C., temporary injunction may be issued by a Court, in cases which are not covered by the said provision under its inherent power under Section 151, C.P.C.

The inherent power of the Court under Section 141 of the Code of Civil Procedure could not be invoked to nullity Section 41 (b). The appeal was accordingly allowed by the Supreme Court.

7. Injunction:

Expression ‘injunction’ in Section 41 (b) is not quali­fied by an adjective and, therefore, it would comprehend both interim and perpetual injunction. It is, however, true that Section 37 specifically pro­vides that temporary injunctions which have to continue until a specified time or until further order of the Court are regulated by the Code of Civil Procedure. But if a dichotomy is introduced by continuing Section 41 to perpetual injunction only and Section 37 read with Order XXXIX of the Code of Civil Procedure being confined to temporary injunction, an unnec­essary grey area will develop.

Expression ‘injunction’ in Section 41 (b) is not qualified by an adjective and therefore, it would comprehend both interim and perpetual injunction. An interim relief can be granted only in aid of, and as ancillary to the main relief which may be available to the party on final determination of these rights in a suit or proceedings. If this be the purpose to achieve which power to grant interim relief is conferred, it is inconceivable that where final relief cannot be granted in the terms sought for because the status bars granting such relief ipso facto temporary relief of the same nature cannot be granted.

In an appropriate case, an order of injunction may be passed under inherent powers in Section 151, C.P.C. but even in exercising such power in granting injunction, the Court must take note Of the Salutary principle noted in Section 41 (b) of the Specific Relief Act.

I-n the matter of grant of injunction, the practice in England is that where a contract is negative in nature, or contains an express negative stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is equi­table and this in principle a discretionary one and a defendant cannot resist an injunction simply on the ground that observance of the contract is bur­densome to him and its breach would cause little or no prejudice to the plaintiff and that breach of an express negative stipulation can be restrained even though the plaintiff cannot show that the breach will cause him any loss.

In India Section 42 of the Specific Relief Act, 1963 prescribes that notwithstanding anything contained in clause (e) of Section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement express or implied not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement.

This is subject to the proviso that the plaintiff has not failed to perform the contract so far as it is binding on him. The Court is, however, not bound to grant an injunction in every case and an injunction to enforce a negative covenant would be refused if it would indirectly compel the employee either to idleness or to serve the employer.

Once it is held that no suit for permanent injunction would be compe­tent, then the Court would have no jurisdiction even to grant an ad interim injunction to restrain the defendant from executing the decree.

The injunction granting stay of proceeding was directed to the Court and the Court has to be the Court subordinate to the one granting the injunction. This is postulated on the well-recognised principle that the supe­rior Court can regulate proceedings in a Court subordinate to it. It is implicit in this assumption and the language used in Section 56 (b) that the Court could not grant injunction under Section 56 (b) of the repealed Act to stay proceeding in a Court superior in hierarchy to the Court from which injunc­tion is sought.

But by judicial interpretation, a consensus was reached that as injunction acts in personam while the Court by its injunction cannot stay proceedings in a Court of superior jurisdiction; it could certainly by an injunction restrain a party before it from further prosecuting the proceeding in other Courts may be superior or inferior in the hierarchy of Courts. To some extent this approach not only effectively circumvented the provision contained in Section 56 of the repealed Act but denuded it of its content.

The Legislature took notice of this judicial interpretation and materially al­tered the language of the succeeding provision enacted in Section 41 (b) replacing Section 56 (b) of the repealed Act while enacting the Specific Relief Act of 1963. The Legislature manifestly expressed its mind by enact­ing Section 41 (b) in such clear and unambiguous language that an injunc­tion cannot be granted to restrain any person, the language takes care of injunction acting in personam, from instituting or prosecuting any proceed­ing in a Court not subordinate to that from which injunction is sought. Section 41 (b) denies to the Court the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a Court which is not subordinate to the Court from which the injunction is sought. In other words, the Court can still grant an injunction restraining any person from instituting or prosecuting any proceeding in a Court which is subordinate to the Court from which the injunction is sought.

As a neces­sary corollary, it would follow that the Court is precluded from granting an injunction restraining any person from instituting or prosecuting any pro­ceeding in a Court of co-ordinate or superior jurisdiction. This change in language deliberately adopted by the Legislature after taking note of judi­cial vacillation has to be given full effect.

The Supreme Court on aspects of injunction granting stay of proceed­ing has observed in the following manner:

“A glance at the two provisions existing and the repealed would reveal the legislative response to judicial interpretation. Under Sec­tion 56 (b) of the repealed Act, the Court was precluded by its in­junction to grant stay of proceeding in a Court not subordinate to that from which the injunction was sought. In other words the Court would stay by its injunction a proceeding in a Court subordinate to the Court granting injunction. The injunction granting stay of pro­ceeding was directed to the Court and the Court has to be the Court subordinate to the one granting the injunction. This is postulated on the well recognised principle that the superior Court can regulate proceedings in a Court subordinate to it. It is implicit in this assump­tion and the language used in Section 56 (b) that the Court could not grant injunction under Section 56 (b) of the repealed Act to stay proceeding in a Court superior in hierarchy to the Court from which injunction is sought. But by judicial interpretation a consensus was reached that an injunction acts in personum while the Court by its injunction cannot stay proceedings in a Court of superior jurisdic­tion, it could certainly by an injunction restrain a party before it from further prosecuting the proceedings in other Courts may be superior or inferior in the hierarchy of Courts. To some extent this approach not only effectively circumvented the provision contained in Section 56 of the repealed Act but denuded it of its content. The Legislature took notice of this judicial interpretation and materially altered the language of the succeeding provision enacted in Section 41 (b) replacing Section 56 (b) of the repealed Act while enacting Specific Relief Act, 1963. The Legislature manifestly expressed its mind by enacting Section 41 (b) in such clear and unambiguous language that an injunction cannot be granted to restrain any person, the language takes care of injunction acting in personum from institut­ing or prosecuting any proceeding in a Court not subordinate to that from which injunction is sought. Section 41 (b) denies to the Court the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a Court which is not subordinate to the Court from which the injunction is sought. In other words the Court can still grant an injunction restraining a person from instituting or prosecuting any proceeding in a Court which is subordinate to the Court from which the injunction is sought. As a necessary corollary, it would follow that the Court is precluded from granting an injunction restraining any person from instituting or prose­cuting any proceeding in a Court of co-ordinate or superior jurisdic­tion. This change in language deliberately adopted by the legislature after taking note of judicial vacillation has to be given full effect.

In other words, the Bank seeks to restrain the corporation, by an injunction of the Court from instituting a proceeding for winding up. There is a clear bar in Section 41 (b) against granting this relief. The Court has no jurisdiction to grant a perpetual injunction restraining a person from instituting a proceeding in a Court not subordinate to it, as a relief, ipso facto temporary relief cannot be granted in the same terms.”

8. Legal proceedings:

The Court cannot grant injunction restraining a person from initiating legal proceedings.

9. Legal process:

This provision, in our opinion, will be attracted only in fact situation where an injunction is sought to restrain a party from insti­tution or prosecuting any action in a Court in India which is either of co­ordinate jurisdiction or higher to the Court from which the injunction is sought in the hierarchy of Courts in India. There is nothing in cotton

Corporation’s case, which supports the proposition that the High Court has no jurisdiction to grant an injunction or a restraint order in exercise of its inherent powers in a situation like the one in the present case.

10. Question of:

It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the Karta. It would be for the Karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to sub-serve the interests of the family.

A coparcener cannot interfere in these acts of management. Apart from that a father Karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his ante­cedent debt which is not tainted with immorality. If there is not such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation. These are two distinct rights.

One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener can­not claim the latter right and indeed, he is not entitled to it. Therefore, he cannot move the Court to grant relief by injunction restraining the Karta from alienating the coparcenary property…. The provisions of Section 38 (Specific Relief Act) have to be read along-with Section 41, Section 41 pro­vides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceedings (except in case of breach of trust). The coparcener has adequate remedy to impeach the alien­ation made by the Karta. He cannot, therefore, move the Court for an in­junction restraining the Karta from alienating the coparcenary property.

11. Right of owner:

No one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner.

The right given under Section 6 of the Act to a person dispossessed without his consent of immovable property otherwise than in due course of law to re­cover possession thereof, notwithstanding any other title that may be set up in such suit, is the statutory recognition of the same principle. If a suit for injunction restraining a person, who has been wrongfully dispossessed of, from executing the decree passed under section 6 for recovery of pos­session is held to be competent, it would obviously result in violation of the above principle and render the provisions of Section 6 of the Act nugatory.

Moreover, such a suit is expressly barred by the provision of Section 41 (a) of the Act which provides that an injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institu­tion of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings.

12. Temporary injunction:

It is indisputable that temporary injunc­tion is granted during the pendency of the proceeding so that while granting final relief the Court is not faced with a situation that the relief becomes infructuous or that during the pendency of the proceeding an unfair advan­tage is not taken by the party in default or against whom temporary injunc­tion is sought. But power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted.

If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted. In State of Orissa v. Madan Gopal Rungta, AIR I 952 SC 1 2, a Constitution Bench of this Court clearly spelt out the con­tours within which interim relief can be granted.

The Court said that “an interim relief can be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceedings. If this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for, because the stat­ute bars granting such a relief ipso facto, the temporary relief of the same nature can be granted. To illustrate this point, it is necessary to take the relief which the Banks seeks in its suit.

The prayer is that the Corporation be restrained by an injunction of the Court from presenting a winding-up petition under the Companies Act, 1956 or under the Banking Regulation act, 1949. In other words, the Bank seeks to restrain the Corporation by an injunction of the Court from instituting a proceeding for winding-up of the Bank. There is a clear bar in Section 41 (b) against granting this relief. The Court has no jurisdiction to grant a perpetual injunction restraining a per­son from institution a proceeding in a Court not subordinate to it, as a relief, ipso facto temporary relief cannot be granted in the same terms.

The Court has inherent power to issue temporary injunction in case which were not covered by the provisions of Order XXXIX of C.P.C. The Court, however, held that inherent powers are to be exercised by the Court on very exceptional circumstances and that the question of issuing an or­der to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great consideration and such an order is not to be made unless absolutely essential for the ends of justice. There is nothing in the judgment to show that inherent power can be exer­cised in a case where there is a total bar as contained in Section 41 (b) of the Specific Relief Act.

The Court has inherent power under Section 151, C.P.C., to pass or­ders of temporary injunction in the interests of justice.

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