DECLARATORY DECREES &

INJUNCTIONS
 Declaratory Decree
• The General power vested in the courts in India under
the Civil Procedure Code is to entertain all the suits of a
civil nature, excepting suits of which cognizance is
barred by any enactment for the time being in force.
• However, courts do not have the general power of
making declarations except in so far as such power is
expressly conferred by statute.
• The utility and importance of the remedy of declaratory
suits are manifest, for its object is to prevent future
litigation by removing existing cause of controversy.
• It is certainly in the interest of the state that this jurisdiction of court
should be maintained, and the causes of apprehended litigation
should be removed.
• However, a declaratory decree confers no new right, it only clears up
the mist that has been gathering round the plaintiff's status or title.
• A person entitled to any legal character or any right as to any
property may seek a declaration from a court to that effect so that
there are no adverse attack which could weaken that legal character
of title
• Chapter VI of the Specific Relief Act 1963 provides for Declaratory
Decrees under Section 34 of the Act and is the present law which
governs declaratory reliefs in India.
• The declaratory relief under Section 34 of the
Specific Relief Act, 1963 is in the nature of
equitable relief for granting of an already
existing right which has been denied by the
other party.
• It does not seek anything to be paid or
performed additionally by the defendant.
 Sec 34: Discretion of Court as to declaration
of status or right
• Any person entitled to any legal character, or to any
right as to any property, may institute a suit against any
person denying, or interested to deny, his title to such
character or right, and the court may in its discretion
make therein a declaration that he is so entitled, and
the plaintiff need not in such suit ask for any further
relief:
• Provided that no court shall make any such declaration
where the plaintiff, being able to seek further relief
than a mere declaration of title, omits to do so.
 Illustrations
• A is lawfully in possession of certain land. The
inhabitants of a neighbouring village claim a
right of way across the land. A may sue for a
declaration that they are not entitled to the
right so claimed.
REQUISITES, SCOPE AND AMBIT OF RELIEF OF
DECLARATION :
• Section 34 of the Specific Relief Act, 1963 contemplates certain
conditions which are to be fulfilled by plaintiff. In order to
obtain the relief of declaration the plaintiff must establish that
• (i) the plaintiff was at the time of the suit entitled to any legal
character or any right to any property
• (ii) the defendant had denied or was interested in denying the
character or the title of the plaintiff
• (iii) the declaration asked for was a declaration that the plaintiff
was entitled to a legal character or to a right to property
• (iv) the plaintiff was not in a position to claim a further relief
than a bare declaration of his title.
 LEGAL CHARACTER:
• A man's status or legal status or 'legal character' is
constituted by attributes, which the law attaches to
him in his individual or personal capacity, the
distinctive mark or dress as it were, with which the
law clothes him.
• Legal character means a position recognized by law.
• According to Holland the chief variety of status among
natural persons may be referred to the following
causes: minority, mental defect, rank, caste, official
position, civil death, illegitimacy, profession, etc.
 PERSON ENTITLED TO A RIGHT TO ANY
PROPERTY:
• The second requirement is that the person who seeks the
remedy must have a right to any property.
• A right in Holland's proposition is a man's capacity of
influencing the acts of another, by means, not of his own
strength, but of the opinion or the force of society.
• Every interest of right which is recognised and protected by
the State is a legal right.
• The Courts have made a distinction between "right to
property" and "a right in property” and it has been held
that in order to claim a declaration the Plaintiff need not
show a right in property
 CONSEQUENTIAL RELIEF
• There may be real dispute as to the plaintiffs legal character or
right to property, and the parties to be arrayed, yet the Court will
refuse to make any declaration in favour of the plaintiff, where
able to seek further relief than a mere declaration, he omits to do
so.
• The object of the proviso is to avoid multiplicity of suits.
• What the legislature aims at is that, if the plaintiff at the date of
the suit is entitled to claim, as against the defendant to the cause
some relief other than and consequential upon a bare declaration
of right, he must not vex the defendant twice;
• he is bound to have the matter settled once and for all in one suit
 IT IS A DISCRETIONARY RELIEF:
• Even though if the essential elements are established, yet it is a
discretion of the Court to grant the relief.
• The relief of declaration cannot be claimed as a matter of right.
• In cases where the necessary parties are not joined the Court can
reject the suit for declaration.
• Under Section 34 of the Act, the discretion which the Court has to
exercise is a judicial discretion.
• That discretion has to be exercised on well-settled principles.
• The Court has to consider the nature of obligation in respect of which
performance is sought.
• No hard and fast rule can be laid down for determining whether this
discretionary relief should be granted or refused
 NEGATIVE DECLARATIONS:
• A suit for a negative declaration may be maintained in a proper case,
e.g., where it relates to a relationship.
• Thus, a suit for a declaration that a person was not, or is not, the
plaintiff's wife, and the defendant not her son through him, may be
maintainable.
• Similarly, a suit lies for obtaining a negative declaration that there is no
relationship of landlord and tenant between the plaintiff and
defendant.
• But where the rights of the plaintiff are not affected or likely to be
affected, suit simpliciter for a negative declaration is not maintainable.
• Such a suit would be regarding the status of the defendant which, in
no way, affects the civil rights of the plaintiff.
 Sec 35: EFFECT OF DECLARATION
• A declaration made under this Chapter is
binding only on the parties to the suit, persons
claiming through them respectively, and,
where any of the parties are trustees, on the
persons for whom, if in existence at the date
of declaration, such parties would be trustees.
• So, declaratory decree is “in personam” and not “in rem”.
• Thus a declaratory decree binds
• (a) the parties to the suit;
• (b) persons claiming through the parties;
• (c) where any of the parties are trustees, on the persons
for whom, if in existence at the date of the declaration,
such parties would be trustees.
• It is only the parties to the suit and the representatives in
interest, but not the strangers who are bound by the
decree.
 Illustration
• A a Hindu in a suit to which B, his alleged wife, and
her mother, are defendants, seeks a declaration
that his marriage was duly solemnized and an
order for the restitution of his conjugal rights.
• The Court makes the declaration and order.
• C, claiming that B is his wife, then sues A for the
recovery of B.
• The declaration made in the former suit is not
binding upon C.
 PREVENTIVE RELIEF- Injunctions
• An injunction is an order framed according to the
circumstances of the case commanding an act which
the court regards as essential to justice, or
restraining an act which it esteems contrary to
equity and good conscience
• An injunction is a judicial process whereby a party is
ordered to refrain from doing or directed to do a
particular act or thing. In the former case, it is called
a restrictive injunction and in the later, a mandatory
injunction.
• It may be either a final remedy obtained by a
suit or a preliminary or interlocutory relief
granted while the suit is pending.
• In the first case it is a decree and in the second
an order or writ.
• Whatever be its forms, decree or order, the
remedy of injunction is wholly preventive,
prohibitory or protective, though it may be in
the form of mandatory injunction.
 Equitable Principles
• The Specific Relief Act lays down some established
principles of equity upon which injunction are
founded.
• The principle that an injunction can not be granted
when the conduct of the applicant or his agent has
been such as to disentitle him to the assistance of
the Courts.
• This clause is based upon two well known principles
“he who seeks equity must do equity” and “he who
comes into equity must come with clean hands”
• Equitable remedy will not be granted unless
the conduct of applicant is fare and honest
and free from any taint or fraud or illegality.
• A party suppressing material fact does not
deserve the grant of any discretionary relief
 Some important equitable principles
• 1) Whenever there is right there is remedy.
• 2) One who seeks equity must come with clean
hands.
• 3) One who seeks equity must do equity.
• 4) Where equities are equal the law will prevail.
• 5) Equity follows the law.
• 6) Equity aids the vigilant, not those who slumber
on their rights.
• 7) Equity acts a personam.
 Preventive
Relief

Injunctions Perpetual
Generally (Sec Injunctions
36-37) (Sec 38-42)
 Sec 36: Preventive relief how granted

• Preventive relief is granted at the discretion of

the court by injunction, temporary or
perpetual.
Sec 37: Temporary and perpetual Injunctions

• (1) Temporary injunctions are such as are to continue

until a specific time, or until the further order of the
court, and they maybe granted at any stage of a suit,
and are regulated by the Code of Civil Procedure, 1908
• (2) A perpetual injunction can only be granted by the
decree made at the hearing and upon the merits of
the suit; the defendant is thereby perpetually
enjoined from the assertion of a right, or from the
commission of an act, which would be contrary to the
rights of the plaintiff.
 Types of Injunction
• Temporary: can be passed at any stage
• Permanent: can only be passed at the
conclusion of the proceedings
 Temporary Injunction
In the landmark case of Gujarat Bottling Co v. Coca
Cola Co AIR 1995 SC 2372, the Supreme Court has
laid down the three essential tests for granting the
temporary injunction, that is
1. Whether the plaintiff has a prima facie case;
2. Whether the balance of convenience is in favour
of the plaintiff; or
3. Whether the plaintiff would suffer an irreparable
injury if his prayer for injunction is not granted
 Cases in which temporary injunction may be
granted
• O39 R1 of Code of Civil Procedure 1908 contains the following provision
regarding the grant of temporary injunction:
• Where in any suit it is proved by affidavit or otherwise:
a. That any property in dispute in a suit is in danger of being wasted, damaged
or alienated by any party to the suit, or wrongfully sold in execution of a
decree, or
b. That the defendant threatens, or intends, to remove or dispose of his
property with a view to defrauding his creditors.
c. That the defendant threatens to dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in the suit.,
The court may by order grant a temporary injunction to restrain such act, or
make such order for the purpose of staying and preventing the wasting,
damaging , alienation, sale, removal or disposition of the property of
disposition of the plaintiff in relation to any property in dispute in the suit
as the court thinks fit until the disposal of the suit or until further orders.
 Perpetual Injunction
• perpetual injunction is one granted by the judgment
which finally disposes of the injunction suit.
• It forms a part of judgment upon a hearing on
merits and it can be properly ordered only upon the
final judgment.
• In order to grant relief on the merits of the case by
perpetual injunction it is not a prerequisite that the
temporary injunction should have been applied for
and granted.
 Sec 38: Perpetual injunction when granted
(Prohibitory Injunction)
• (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;
– (c) where the invasion is such that compensation in money would
not afford adequate relief;
– (d) where the injunction is necessary to prevent a multiplicity of
judicial proceedings.
 Illustrations
• A lets certain land to B, and B contracts not to
dig sand or gravel thereout. A may sue for an
injunction to restrain B from digging in
violation of his contract.
 Sec 39: Mandatory injunctions
• 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
Sec 40: Damages in lieu of, or in addition to,
injunction
• (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.
 Sec 41: Injunction when refused
• 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 subordinate to that from which the
injunction is sought;
• (c) to restrain any person from applying to any legislative body;
• (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.
 Sec 42: Injunction to perform negative
agreement
• 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.
Thank You