Part III of the Specific Performance Act, 1963 bears the heading ‘Preventive Relief’ and fasciculus of sections therein included provide for injunctions generally.
Sec. 36 provides that preventive relief is granted at the discretion of the Court by injunction, temporary or perpetual.
Sec. 37 specifies the nature and character of temporary and perpetual injunctions. Temporary injunctions are such as are to continue until a specified time, or until the further order of the Court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908.
Permanent injunctions can only be granted by the decree made at the hearing and upon merits of the suit and thereby defendant in the suit is perpetually enjoined from assertion of a right or from commission of an act, which would be contrary to the rights of the plaintiffs.
Section 38 sets out situations in which the court can grant a perpetual injunction to the plaintiff to prevent the breach of an obligation existing in its favour, whether expressly or by implication. Sec. 38 is thus an enabling section which confers power on the court to grant perpetual injunction in situations and circumstances therein enumerated.
Sec. 41 caters to the opposite situation. It provides that an injunction cannot be granted in the situation and circumstances therein set out. Sec. 41 (b) reads as under:
“41. An injunction cannot be granted:-
(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought; …………………..”
The predecessor of Sec. 41 (b), Sec. 56 (b) of the Specific Relief Act of 1887 repealed by 1963 Act read as under:
“56. Injunction cannot be granted:-
(b) to stay proceeding in a Court not subordinate to that from which the injunction is sought,”
A glance at the two provisions, the existing and the repealed would reveal the legislative response to judicial interpretation. Under Sec. 56 (b) of the repealed Act, the Court was precluded by its injunction to grant stay of proceeding in a court not subordinate to that from which the injunction was sought.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 could 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 Sec. 56 (b) that the court could not grant injunction under Sec. 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 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 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 Sec. 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 Sec. 41 (b) replacing Sec. 56 (b) of the repealed Act while enacting Specific Relief Act of 1963. The Legislature manifestly expressed its mind by enacting Sec. 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.
Sec. 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.
Sec. 37 of Code of Civil Procedure
It is, therefore, necessary to unravel the underlying intendment of the provision contained in Sec. 41 (b). It must at once be conceded that Sec. 41 deals with perpetual injunction and it may as well be conceded that it has nothing to do with interim or temporary injunction which as provided by Sec. 37 are dealt with by the Code of Civil Procedure.
To begin with, it can be said without fear of contradiction that anyone having a right that is a legally protected interest complains of its infringement and seeks relief through court must have an unhindered, uninterrupted access to law courts. The expression ‘court’ here is used in its widest amplitude comprehending every forum where relief can be obtained in accordance with law. Access to justice must not be hampered even at the hands of judiciary. Power to grant injunction vests in the court unless the Legislature confers specifically such power on some other forum.
Now 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 therefor, 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 sec. 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 through court unobstructed.
Viewed from a slightly different angle, it would appear that the legal system in our 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 procedural 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 situation the Legislature enacted sec. 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 coordinate jurisdiction or superior jurisdiction. There is an unresolved controversy whether a court can grant an injunction against a person from instituting or prosecuting a proceeding before itself but that is not relevant in the present circumstances and we do not propose to enlarge the area of controversy.
Expression ‘injunction’ in sec. 41 (b) is not qualified by an adjective and therefore, it would comprehend both interim and perpetual injunction. It is, however, true that Sec. 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 confining Sec. 41 to perpetual injunction only and Sec. 37 read with O. 39 of the Code of Civil Procedure being confined to temporary injunction, an unnecessary grey area will develop.
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. It the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted.
In The State of Orissa v. Madan Gopal Rungta (1952 AIR 12), a Constitution Bench of Supreme 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 cannot be granted.
As held by Supreme Court in Cotton Corporation of India v. United Industrial Bank (1983)