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PART III.

OF PREVENTIVE RELIEF,

CHAPTER IX.

OF INJUNCTIONS GENERALLY.

tions,

52. Preventive relief is granted at the discretion of the Preventive Court by injunction, temporary or perpetual.

relief how

granted. 53. Temporary injunctions are such as are to continue Temporary until a specified time, or until the further order of the Court. injuncThey may be granted at any period of a suit, and are regulated by the Code of Civil Procedure.

A perpetual injunction can only be granted by the decree Perpetual made at the hearing and upon the merits of the suit : the injuncdefendant 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 1.

CHAPTER X.

OF PERPETUAL INJUNCTIONS.

54. Subject to the other provisions contained in, or referred Perpetual to by, this chapter", a perpetual injunction may be granted when

injunctions to prevent the breach of an obligation existing in favour of granted. the applicant, whether expressly or by implication.

When such obligation arises from contract, the Court shall

17 Mad. H. C. 71.

? Also subject to the discretion of the Court, sec. 52. As to whether the Court will give relief by injunc

tion or by damages, see 8 Bom. 70, where the Court dealt with the caso by combining damages and injunction.

be guided by the rules and provisions contained in Chapter II of this Act 1

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 ;

() 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 pecuniary compensation would not afford adequate relief 3;

(d) where it is probable that pecuniary compensation cannot be got for the invasion ;

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

Explanation. For the purpose of this section a trademark is property.

Illustrations. (a) 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*.

(6) A trustee threatens a breach of trust. His co-trustees, if any, should, and the beneficial owners may, sue for an injunction to prevent the breach.

(c) The directors of a public company are about to pay a dividend out of capital or borrowed money. Any of the shareholders may sue for an injunction to restrain them 5.

(d) The directors of a fire and life-insurance company are about to engage in marine insurances. Any of the shareholders may sue for an injunction to restrain them

(e) A, an executor, through misconduct or insolvency, is bringing the property of the deceased into danger. The Court may grant an injunction to restrain him from getting in the assets.

(1) A, a trustee for B, is about to make an imprudent sale of a small part of the trust-property. B may sue for an injunction to restrain the sale, even though compensation in money would have afforded him adequate relief?.

1 For most of such cases an injunction is in effect a specific performance, Collett, 277

? Jackson v. Duke of Newcastle, 3 De G. J. & S. 275.

3 8 Bom. H. Č. 181: 2 Bom. 133.

City of London v. Pugh, 4 Bro. P. C. 395.

5 MoDougall v. Jersey Hotel Co., 2 H. & M. 528.

6 Natusch v. Irring, Coop. C. C.

358,

(9) A makes a settlement (not founded on marriage or other valuable consideration) of an estate on B and his children. A then contracts to sell the estate to C. B or any of his children may suo for an injunction to restrain the sale ?.

(1) In the course of A's employment as a vakil, certain papers belonging to his client, B, come into his possession. A threatens to make these papers public, or to communicate their contents to a stranger. B may sue for an injunction to restrain A from so doing.

(i) A is B's medical adviser. He demands money of B which B declines to pay. A then threatens to make known the effect of B's communications to him as a patient. This is contrary to A's duty, and B may sue for an injunction to restrain him from so doing

(1) A, the owner of two adjoining houses, lets one to B and afterwards lets the other to C. A and C begin to make such alterations in the house let to C as will prevent the comfortable enjoyment of the house let to B. B may sue for an injunction to restrain them from so doing.

(k) A lets certain arable lands to B for purposes of husbandry, but without any express contract as to the mode of cultivation. Contrary to the mode of cultivation customary in the district, B threatens to sow the lands with seed injurious thereto and requiring many years to eradicate. A may sue for an injunction to restrain B from sowing the lands in contravention of his implied contract to use them in a husbandlike manner 5.

(1) A, B and C are partners, the partnership being determinable at will. A threatens to do an act tending to the destruction of the partnership-property. B and C may, without seeking a dissolution of the partnership, sue for an injunction to restrain A from doing the acto.

(m) A, a Hindú widow in possession of her deceased husband's property, commits destruction of the property without any cause sufficient to justify her in so doing. The heir-expectant may sue for an injunction to restrain her.

(n) A, B and C are members of an undivided Hindú family. A cuts timber growing on the family-property, and threatens to destroy part of the family-house and to sell some of the familyutensils. B and C may sue for an injunction to restrain him?.

i Anon. 6 Maddock, 10. That an 3 See sec. 55, ill. (c). injunction will be granted to prevent Palmer v. Paul, 3 L. J., Ch. 154 a breach of trust even where damages (1874). would have been sufficient, see Atty. 5 Pratt v. Brett, 2 Maddock, 62. Gen. v. Aspinall, 2 My. & Cr. 613: 6 Miles v. Thomas, 9 Sim. 609. Wood v. Roucliffe, 2 Phill. 382, 383: And if A give notice to dissolve, this 3 Hare, 304.

will not affect the injunction. Compare sec. 24, cl. (d), and sec. 7 See Job v. Potton, L. R., 20 Eq. 25, cl. (e) and ill. (d).

2

84.

(0) A, the owner of certain houses in Calcutta, becomes insolvent. B buys them from the official assignee and enters into possession. A persists in trespassing on and damaging the houses, and B is thereby compelled, at considerable expense, to employ men to protect the possession. B may sue for an injunction to restrain further acts of trespass '.

(p) The inhabitants of a village claim a right of way over A's land. In a suit against several of them, A obtains a declaratory decree that his land is subject to no such right? Afterwards each of the other villagers sues A for obstructing his alleged right of way over the land. A may sue for an injunction to restrain them

(9) A, in an administration-suit to which a creditor, B, is not a party, obtains a decree for the administration of C's assets. B proceeds against C's estate for his debt. A may sue for an injunction to restrain B4

(v) A and B are in possession of contiguous lands and of the mines underneath them. A works his mine so as to extend under B's mine and threatens to remove certain pillars which help to support B's mine. B may sue for an injunction to restrain him from so doing

(8) A rings bells or makes some other unnecessary noise so near a house as to interfere materially and unreasonably with the physical comfort of the occupier, B. B may sue for an injunction restraining A from making the noise.

(c) A pollutes the air with smoke? so as to interfere materially with the physical comfort of B and C, who carry on business in a neighbouring house. B and C may sue for an injunction to restrain the pollution 8.

(u) A infringes B’s patent. If the Court is satisfied that the patent is valid and has been infringed ', B may obtain an injunction to restrain the infringement.

(v) A pirates B's copyright. B may obtain an injunction to restrain the piracy, unless the work of which copyright is claimed is libellous or obscene.

Hodgson v. Duce, 2 Jur., N. S. 1014 (where the defendant was a pauper); see Best v. Drake, 11 Hare, 369

The illustration assumes that the suit has been so brought, as, under sec. 43, to be binding upon all the inhabitants of the village as a body, Collett, 312–3.

3 Weale v. W. Middlesex Waterworks Co., 1 Jac. & W. 358, 369.

2 Dan. Ch. Pr., 5th ed., 1463. But now see ibid., 6th ed., 1944. This and illustration (p) show that multiplicity of suits may be restrained; see also sec. 56, cl. (a).

3 Lord Lonsdale v. Curwen, 3 Bligh, H. L. Ca. 168.

& Saltau v. De Held, 2 Sin. N.S. 133.

7 Dust and cotton fluffare analogous to smoke in the character of the annoyance which they cause, and are subject to much the same consider ations, 8 Bom. 55. So are all noxious or offensive odours and gases. & Sampson v. Smith, 8 Sim. 272.

and belongs to B. Where possession of a patent is supported by quiet and exclusive enjoyment of some duration, or where the title has been successfully asserted in litigation, with the result of which the Court has no reason to be dissatisfied, credit will be given to the title unless its invalidity, if it be invalid, is established ; see Kerr on Injunctions,

and ed., 272–3.

(w) A improperly uses the trademark of B. B may obtain an injunction to restrain the user, provided that B's use of the trademark is honest .

() A, a tradesman, holds out B as his partner against the wish and without the authority of B. B may sue for an injunction to restrain A from so doing".

(y) A, a very eminent man, writes letters on family-topics to B. After the death of A and B, C, who is B's residuary legatee, proposes to make money by publishing A's letters. D, who is A's executor, has a property in the letters, and may sue for an injunction to restrain C from publishing them.

(2) A carries on a manufactory and B is his assistant. In the course of his business, A imparts to B a secret process of value. B afterwards demands money of A, threatening, in case of refusal, to disclose the process to C, a rival-manufacturer. A may sue for an injunction to restrain B from disclosing the process .

55. When, to prevent the breach of an obligation, it is Mandatory necessary to compel the performance of certain acts which injuncthe 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 ?.

Illustrations. (a) A, by new buildings, obstructs lights to the access and use of which B has acquired a right under the Indian Limitation Act, Part IV. B may obtain an injunction, not only to restrain A from going on with the buildings, but also to pull down so much of them as obstructs B's lights

(6) A builds a house with eaves projecting over B's land. B may sue for an injunction to pull down so much of the eaves as so project.

or seditious ? Walcot v. Walker, 7 8 Bom. H. C, 181. This is called 7 Ves. 1: Southey v. Sherwood, 2 a mandatory injunction. See sec. 55, Mer. 435. See sec. 55, ill. (g). ill. (g). That such an injunction may

1

. See the Penal Code, sec. 478, be granted where the injury sought supra, p. 275.

to be restrained has been completed 3 i.e. the trademark must not con- before the institution of the suit, tain misstatements of any material see Durell v. Prichard, L. R., 1 Ch. fact calculated to deceive the public, App. 250. Kerr on Injunctions, 2nd ed., p. 368 :

Chaplin, 2 Jur., N. S. 3 Ben. App. 4: 3 Cal. 417.

931 : Smith v. Smith, 23 W. R. 771 : · Routh v. Webster, io Beav. 561 : 7 Cal. 453. In executing such decrees Dixon v. Holden, L. R., 7 Eq. 488. the Court should employ a professional s See sec. 55, ill. (d).

man agreed upon by the parties, if • Daniell, 1592. As to the principles they can agree, but if not, then one on which the Court will interfere by nominated by itself, to determine injunction to restrain acts of public what demolition is necessary to give functionaries in excess of their statu- effect to the decree in the way least tory powers, 8 Bom. H. C., 0. C. J. 85. injurious to the defendant, 2 Bom. 139.

* Jessel v.

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