Property Plus
Coimbatore
How to protect property
Various types of injunctions can be obtained by a person to protect his/her property. They are:
Permanent/perpetual injunction
This is granted to prevent a breach of an obligation. The term ‘obligation’ is defined in Section 2 (a) of the Specific Relief Act. It includes every duty enforceable by law. In obtaining such an injunction, the plaintiff has to prove a legal right and its violation. The injunction continues forever and is granted only by means of a decree. Perpetual injunctions are governed by Section 38 of the Specific Relief Act under Chapter VIII. The court while granting perpetual injunction would have to consider two aspects: lawful possession and lawful ownership.
Temporary Injunction
During the pendency of a suit for perpetual injunction a plaintiff would be entitled to seek temporary injunction under Order 39 Rule 1 and 2 of the Code of Civil Procedure.
Such an injunction is essentially guided by four factors:
Existence of a prima facie case; the balance of convenience of the parties; the conduct of the party approaching the court is not blameworthy; an irreparable loss is caused to the party approaching the court.
The temporary injunction can be either in respect of restraining the defendant from interfering with the plaintiff’s possession or it could be an order restraining the defendant from carrying out certain acts on the land.
Further, an injunction essentially is a judicial process by which one who has invaded or is threatening to invade the rights, legal or equitable, of another is restrained from continuing or commencing such wrongful acts.
Mandatory injunction
This injunction may be prohibitory or mandatory. Mandatory injunction is governed by Section 39 of the Specific Relief Act.
A prohibitory injunction forbids a person from doing an act which infringes or tends to infringe on a right of the plaintiff, legal or equitable.
A mandatory injunction either forbids a party to continue a wrongful state of things, or directs to abate a wrongful act.
Mandatory injunction is both positive and negative.Injunctions may also be refused if the injury complained of is capable of being compensated by money.
(N.C.S. Raghavan is a chartered accountant and Arvind Raghavan, an advocate)
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