Specific Relief Act, 1963 / Chapter VIII

Sections 38 to 42 of the Specific Relief Act, 1963: Injunctions and Damages

Chapter VIII of the Specific Relief Act, 1963 governs perpetual injunctions, mandatory injunctions, damages connected with injunctions, circumstances in which an injunction must be refused, and enforcement of negative contractual agreements.

Under Sections 36 and 37, injunctions are a form of preventive relief. A temporary injunction operates during a suit and is governed by the Code of Civil Procedure, 1908, while a perpetual injunction is granted by a final decree on the merits. Sections 38 to 42 set out additional substantive rules.

On this pageSection 38 Section 39 Section 40 Section 41 Section 42

Section 38. Perpetual injunction when granted

A perpetual injunction is a final decree restraining conduct that infringes an enforceable obligation or property right. Section 38(1) covers express and implied obligations; subsection (2) directs courts to the rules governing contractual specific performance. Under subsection (3), protection against an actual or threatened invasion of property rights is particularly relevant where the defendant is a trustee, monetary loss cannot be reliably measured, damages would be inadequate, or multiple lawsuits would otherwise arise. The plaintiff must establish the underlying right and a sufficient basis for final relief.

Statutory provisions

(1) Subject to the other provisions contained in or referred to by this Chapter, 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.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

(3) 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:-

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Section 39. Mandatory injunctions

A mandatory injunction requires a party to perform a positive act, rather than merely abstain from conduct. Section 39 permits this discretionary remedy where the act is necessary to prevent breach of an obligation and the court can effectively enforce compliance. Examples may include removing an unlawful obstruction or restoring access, depending on proven rights and facts.

Statutory provisions

When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Section 40. Damages in lieu of, or in addition to, injunction

Section 40 permits damages in addition to or instead of a perpetual or mandatory injunction. The claim must appear in the plaint; where omitted, the statute directs the court to permit amendment on just terms. Subsection (3) makes the result of an unsuccessful suit to prevent breach significant: dismissal bars a later suit for damages for that breach. Parties should therefore consider all appropriate reliefs when drafting the original plaint.

Statutory provisions

(1) 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.

(2) 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.

(3) 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.

Section 41. Injunction when refused

Section 41 lists statutory bars to injunctions, including specified restraints on judicial or criminal proceedings, legislative applications, unenforceable contracts, uncertain nuisance, acquiescence, adequate alternative remedies (subject to the breach-of-trust exception), disentitling conduct and absence of personal interest. Clause (ha), inserted by the Specific Relief (Amendment) Act, 2018, restricts injunctions that would impede or delay an infrastructure project or interfere with related facilities or services. Each restriction must be considered on its statutory terms.

Statutory provisions

An injunction cannot be granted- (a) 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;

(b) to restrain any person from instituting or prosecuting any proceeding in a court not sub-ordinate to that from which the injunction is sought;

(d) to restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) to prevent the breach of a contract the performance of which would not be specifically enforced;

(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;

(g) to prevent a continuing breach in which the plaintiff has acquiesced;

(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

[(ha) if it would impede or delay the progress or completion of any infrastructure project or interfere with the continued provision of relevant facility related thereto or services being the subject matter of such project.]

(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to be the assistance of the court;

(j) when the plaintiff has no personal interest in the matter.

Section 42. Injunction to perform negative agreement

Section 42 concerns a contract combining an affirmative promise with a negative covenant not to do something. Even where the positive promise cannot be specifically enforced, the negative undertaking may be restrained by injunction despite Section 41(e), provided the plaintiff has performed the contractual obligations binding on them. The wording and enforceability of the covenant remain important.

Statutory provisions

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:

Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.

Section 2, 3, 4 of Specific Relief Act

Section 5, 6, 7, 8 of Specific Relief Act

Section 9, 10, 11, 12 of Specific Relief Act Section 13 of Specific Relief Act Section 14, 14A, 15 and 16 of SR Act Section 17, 18, 19 of Specific Relief Act Section 20, 20A, 20B, 20C SR Act Section 21, 22, 23, 24, 25 SR Act Section 26 of Specific Relief Act Section 27, 28, 29, 30 of SR Act Section 31, 32, 33 of Specific Relief Act Section 34, 35 of Specific Relief Act Section 36, 37 of Specific Relief Act Section 38, 39, 40, 41, 42 SR Act Online Applications How to Register FIR online and get copy of FIR online How to file Income Tax Return online How to Apply for Passport online and Check Status How to Apply for PAN Card online and Check Status How to apply for Aadhar Card online and update data How to file RTI Application form online and make fee payment How to apply online Aadhaar Card, PAN Card, FIR, Income Tax Return etc. How to Check your Voter ID Card Status online How to Check consumer case status online NCDRC, State, District Forums Police Websites of Indian States and Other Countries. Government Website of Investigation agencies and forces Register Consumer Complaint online with National Consumer Helpline Website

Practical considerations in an injunction suit

Identify the enforceable legal or contractual right, the threatened or completed breach, and why the requested order is necessary. For a permanent injunction, the court evaluates the merits of the claimed right; for interim protection, the applicable procedural requirements and established interim-relief tests also matter. Where positive action is sought, specify the act that can be supervised and enforced.

Check Section 41 before seeking relief. In a suit under Sections 38 or 39, plead any claim for damages under Section 40, along with supporting facts. In infrastructure disputes, assess the statutory restrictions in Section 41(ha) and the special provisions in Sections 20A to 20C, where applicable.

Official statutory resources

Read the statute together with applicable amendments, rules and binding judicial decisions. The summaries above explain the provisions and do not replace the enacted text.