CHAPTER V
JUDICIAL DISCRETION IN AWARD OF INJUNCTIONS
Abuse of discretion is a phrase which sounds worse than it really is. All it need
mean is that, when judicial action is taken in a discretionary matter, such action
cannot be set aside by a reviewing court unless it has a definite and firm
conviction that the court below committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors.
-Magruder J., The New York Law Journal, March 1, 1962, P.4, col. 2.
5.1 INTRODUCTION
The grant or refusal of injunction is largely dependent on the manner in which the
Court exercises its discretion. The exercise of judicial discretion may substantially
vary with the peculiar circumstances of each case. The discretion has to be
exercised in accordance with certain well-established principles. Though a
number of directives have issued by higher courts in the nature of authoritative
pronouncements, the extent of discretion has remained wide, though not totally
unregulated and unfettered. Attempts to statutorily control or dictate the exercise
of powers by delineating circumstances have proved abortive.
It has been observed by writers and judges that there can be no straitjacket formula
provided by the legislature for exercise of discretion as every possible situation
cannot be anticipated. The vast powers of Courts are therefore left to be guided by
the overarching goal of serving the interest of justice, with broad parameters being
laid down by superior Courts themselves.
In light of the seeming inconsistencies, critics need to be reassured that the
discretion of the Court is not “an arbitrary or capricious discretion, dependent on
the mere pleasure of the Judge.”1 The discretion is judicial, and is exercised so as
to prevent the defendant from doing a wrongful act thinking that he could pay
damages for it.2 It is sound and reasonable3 and has regard to all the circumstances
of the case.4 It is capable of correction by a court of appeal, for where the trial
1
2
3
4
Story, Equity Jurisprudence, 12th Edn., Sec. 742.
Per Jessel. M.R., in Smith v. Smith, L.R. 20 Eq. 500 at p. 505.
Aynsley v. Glover L.R. Eq. 544 at p. 555.
Per Bacon, V.C. in Greenwood v. Horney, L.R. 33 Ch. Div. 471 and Kekewich, J., in Martine
v. Prince, L.R. (1894) ch. 276 at p. 280: 63 L.J. Ch. 209.
304
judge has discretionary powers, the Appellate Court has discretion and duty to
exercise it.5
5.2 GENERAL CONCEPT OF DISCRETION
Discretion essentially refers to choice.6 It arises when a person is empowered to
exercise authority and is afforded scope to decide how that authority should be
exercised in the given circumstances. Discretion is the centre of debates and
demands to preserve, enhance or restrict discretion.7
The dictionary definition of discretion is the power or right to decide, according to
one's own judgement. It is often seen as the "freedom to choose" as opposed to
constraints imposed by rules. The expression "arbitrary" is shown to be associated
with discretion, which implies one which is subject only to individual will or
judgment, without restriction; contingent only on discretion, or one which is
uncontrolled or unrestricted by law. In other words, it is seen as despotic and
tyrannical.
Ronald Dworkin said, "Discretion, like the hole in a doughnut, does not exist
except as an area left open by a surrounding belt of restriction."8 This statement
represents the conventional view of discretion. Three main assumptions are
embedded in this view: that law is the primary instrument of social regulation, that
discretion is a residual category of law, and that this discretion is exercised by
individuals who, though influenced in a wide variety of ways, are essentially
autonomous.
Conventionally, it was believed that discretion starts only where law ends. It was
felt that while the rule of law is intimately connected to notions of justice,
discretion is more open-ended. The idea of discretion is inflected with liberal
assumptions and ideals relating to the power of law, autonomy, and freedom of
5
6
7
8
Davy v. Garrett, L.R. 7 ch. Div. 473: Jarmain v. Chatterton, L.R. 20 Ch. Div. 494 at P. 499:
Crowther v. Elgood, L.R. 34 Ch. Div. 691 at p. 697; Knowles v. Roberts, L.R. 38 Ch. Div. 263
at p. 271.
George C. Christie, An Essay on Discretion, 1986 Duke L.J. 747 ("It is universally accepted
that discretion has something to do with choice; beyond this, the consensus breaks down.");
Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse
L. Rev. 635 ("If the word discretion conveys to legal minds any solid core of meaning, one
central idea, above all others, it is the idea of choice.").
Maurice Rosenburg, Judicial Discretion of the Trial Court viewed from Above, Syracuse Law
Review, 22 syracuse l. Rev. 635 (1970-1971).
Ronald Dworkin, Taking Rights Seriously (1978), p. 31.
305
choice. This proposition assumes that law and discretion are discrete and distinct
entities that are negatively correlated: more law means less discretion, and less
discretion means more law. Whether this assumption is correct, in the context of
injunctions, will be studied in this chapter.
5.3 DISCRETION OF COURTS
The task of judging has been described as the art or science of making discrete
choices among competing courses of action.9 Charged with the mandate to
administer justice fairly and equitably, judges are said to have discretion to pursue
any lawful course.10 The exercise of discretion is a core judicial function regarding
all matters - profound or trivial.11 The exercise of discretion is often characterized
by vivid metaphors: judges confront a frame of possibilities,12 a zone,13 a range,14
two paths or a fork in the road,15 a fenced pasture.16
The antagonistic procedure urges disputants to take extreme positions,17 and judges
may be influenced by an advocate's contentions in support of a party, yet incline
towards some middle path or compromise position.18 By presenting discretionary
9
10
11
12
13
14
15
16
17
18
Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921) (analogizing judicial
decisions to free scientific research); H.L.A. Hart, The Concept of Law 123-24 (1961)
(explaining judge's discretion to choose how closely, and in what manner, to follow
authoritative precedent); Joseph Raz, The Authority of Law: Essays on Law and Morality 182
(1979) (describing judicial process of filling gaps in law).
Aharon Barak, Judicial Discretion 10 (Yadin Kaufmann trans., 1989) ("The legal question to
which discretion is applied does not have one lawful solution, but rather several lawful
solutions."); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the
Making and Application of Law 144 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994)
("Discretion means the power to chose between two or more courses of action each of which is
thought of as permissible."
D. J. Galligan, Discretionary Powers: A Legal Study of Official Discretion 1 (Max Knight
trans., 1967) (claiming that judicial discretion rivals in significance "the core of settled rules in
terms of which legal order is characterized").
Hans Kelsen, Pure Theory of Law 351 (1989).
A. Barak, Judicial Discretion, (1989).
George C. Christie, An Essay on Discretion, 1986 Duke L.J. 747, 747-48 (1986).
Benjamin N. Cardozo, The Growth of the Law, 60-61 (1924).
Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse
L. Rev. 635, 650 (1971) (describing discretion of trial court judge as a pasture the appellate
judge may fence off).
Stephan Landsman, The Decline of the Adversary System: How the Rhetoric of Swift and
Certain Justice Has Affected Adjudication in American Courts, 29 Buff. L. Rev. 487, 529
(1980) ("Adversary procedure may exacerbate rather than resolve tensions and may not foster
the kind of compromise essential to the restoration of harmony."); Roger J. Patterson, Dispute
Resolution in a World of Alternatives, 37 Cath. U. L. Rev. 591, 600 (1988) (noting propensity
of adversary system to drive parties to extreme positions); Lawrence Susskind & Alan
Weinstein, Towards a Theory of Environmental Dispute Resolution, 9 B.C. Envtl. Aff. L. Rev.
311, 320 (1980) ("The adversary system introduces an unfortunate "gaming' aspect to the
judicial process that discourages the search for "win-win' solutions to a dispute.").
The obvious advantages find parallels in the justifications favouring alternative dispute
306
powers, the legal framework endows judges with the capacity to make reasoned
judgments about the relative benefits of all the different legitimate blueprints that
fall inside of the casing of possibilities.19 The award of power is commenced, to
start with, on the idea that the trial judge is in a better position to and assess the
circumstances with firsthand knowledge.20 A second avocation perceives that
productivity and conclusion in settling may be more essential than exactness in
each instance.21 Judges are assumed to practice their attentiveness in a reasonable
and impartial way, and in this manner, the "abuse of discretion" standard of survey
protects certain activities of watchfulness from thorough reevaluation on appeal.22
The discretion exercised by courts or, in other words, judicial discretion, is thus
defined as “the power the law gives the judge to choose among several
alternatives, each of them being lawful.”23 This includes judicial discretion in
making (i) findings of fact or (ii) rulings on law, which is restricted to (iii) (after
the findings of facts and rulings on law are made) “the individual judge's
assessment of what it is fair and just to do in the particular case”.24
19
20
21
22
23
24
resolution. Frank E. A. Sander, Varieties of Dispute Processing, in The Pound Conference:
Perspectives on Justice in the Future 65, 84 (A. Leo Levin & Russell R. Wheeler eds., 1979)
(extolling benefits of dispute resolution process), voluntary cooperation and private
settlements.
The obvious advantages find parallels in the justifications favouring alternative dispute
resolution. Frank E. A. Sander, Varieties of Dispute Processing, in The Pound Conference:
Perspectives on Justice in the Future 65, 84 (A. Leo Levin & Russell R. Wheeler eds., 1979).
Eric F. Spade, A Mandatory Disclosure and Civil Justice Reform Proposal Based on the Civil
Justice Reform Act Experiments, 43 Clev. St. L. Rev. 147, 180 (1995) (citing Ben F. Overton,
The Meaning of Judicial Discretion, in Judicial Discretion 8 (National Judicial College, ABA
1991)).
See Ronald Dworkin, Principle, Policy, Procedure, in A Matter of Principle 72, 73 (1985)
(recognizing that right to greater accuracy is trade-off with cost while arguing that matters of
principle should trump considerations of policy in adjudication); Joseph Raz, Dworkin: A New
Link in the Chain, 74 Cal. L. Rev. 1103, 1103 (1986) (reviewing Dworkin) (stating that
Dworkin's essay "seems to undermine Dworkin's apparent view that in adjudication, rights
should take precedence over issues of public policy, such as administrative expedience"); See
generally Larry Alexander, Are Procedural Rights Derivative Substantive Rights?, 17 Law &
Phil. 19, 23-26 (1998) (stating that same considerations governing private actions should
govern procedural rights); Thomas C. Grey, Procedural Fairness and Substantive Rights, in
Nomos XVIII: Due Process 182, 184 (J. Roland Pennock & John W. Chapman eds., 1977)
(stating that procedural fairness favors correct resolution of disputes, but only "at a cost
commensurate with what is at stake in the dispute"); Louis Kaplow & Steven Shavell, Fairness
Versus Welfare, 114 Harv. L. Rev. 961 (2001) (comparing benefits of welfare economics with
notions of fairness).
Ruggero J. Aldisert, The Judicial Process 716-19 (2d ed. 1996). Judicial discretion has many
meanings that extend beyond those invoking the abuse of discretion standard of review. See
Marisa Iglesias Vila, Facing Judicial Discretion: Legal Knowledge and Right Answers
Revisited 4-7 (2001) (defining four "senses" of judicial discretion).
A Barak, Judicial Discretion, (1989) 7.
Rt Hon Lord Justice Bingham, “The discretion of the judge” [1990] Denning Law Journal 27
at 28.
307
Carl Schneider25 distinguishes four types of judicial discretion, classified by the
reason for establishing it: “khadi-discretion” (complete discretion, foreign to
modern legal systems); “rule-failure discretion” (where satisfactory rules cannot be
enacted); “rule-building discretion” (where judges develop rules as they go along);
and “rule-compromise discretion” (where members of the legislature cannot agree
on rules or guide-lines and therefore delegate the function of rule-making to the
judges).26
5.4 NATURE OF JUDICIAL DISCRETION
A matter is expressed to be judge's discretion if, being represented by no guideline
of law, its determination relies on upon the individual judge's evaluation (inside
such limits as have been set down) of what it is reasonable and just to do in the
specific case. When having made any important finding of certainty and any vital
decision of law, he needs to pick between distinctive strategies, prayers or
remedies, he practices discretion. It is just when he achieves the phase of asking
himself what is the reasonable that he sets out on the course of discretion.27
The judge's part in settling on a decision is not obviously curious to him.
Historians, auditors, agents and specialists are among the individuals who perform
a comparable function. Be that as it may, there are three components of the
judge's part which won't all apply to these different examinations. To begin with,
he is constantly given clashing renditions of the events being referred to: if there
is not a powerful debate there is nothing for him to choose. Furthermore, his
determination essentially happens subject to the convention and restrictions
(evidential and generally) attendant upon procedures in court. Thirdly, his
determination has a direct impact upon individuals' lives regarding their
budgetary condition, exercises or notorieties.
Benjamin Cardozo28 emphasized the restraints under which Judges should act, but
also compared the task of judge with that of the legislator:
25
26
27
28
C. E. Schneider, “Discretion and rules: a lawyer's view”, in K Hawkins (ed), The Uses of
Discretion (1992) 47 at 63-66.
Niall R. Whitty. From rules to discretion: changes in the fabric of Scots private law, Edinburgh
Law Review, 2003.
The Discretion of the Judges, Royal Bank of Scotland Lecture, Oxford (17 May 1990), (1990)
Denning law Journal 27.
In his famous lecture on The Nature of the Judicial Process, on the theme of “The Judge as an
Legislator,” delivered in 1921.
308
“The choice of methods, the appraisement of values, must in the end be guided by
like consideration for the one as for the other. Each indeed is legislating within
the limits of his competence. No doubt the limits for the judge are narrower. He
legislates only between gaps. He fills the open spaces in law. Nonetheless, within
the confines of these open spaces and those of precedent and tradition, choice
moves with a freedom which stamps its action as creative. The law which is the
resulting product is not found, but made. The process, being legislative, demand
the legislator's wisdom.”
Cardozo went on to say that “in countless litigations, the law is so clear that
judges have no discretion. They have the right to legislate within gaps, but often
there are no gaps.”
In his jurisprudential perspective, Cardozo was moderate and diverse. His
typically smooth plan of the perspective that judges "legislate" mirrors its across
the board acknowledgment among jurisprudential authors of his time and this
perspective has been looked upon as a conspicuous trust..29
5.5 DISCRETION IN AWARD OF INJUNCTIONS- A DERIVATIVE OF
EQUITY
The most obvious upshot of equity is individualized justice. Equity can facilitate
creative outcomes tailored to the unique circumstances of the case presented.
Components of fairness profoundly installed in the remedy can lessen bias, ensure
protection of gullible parties, and convey just results in every use of a uniform
principle. Equity additionally adds to proficiency that can help guarantee that
justice in a specific case is without any delay. Whether the adaptability and
customizing is utilized usefully or ruinously, equity does empower judges to adjust
to the circumstances introduced and to modify their request.30
29
30
Kent Greenawalt, Discretion and Judicial Decision: The Elusive Quest for the fetters that bind
Judges, Columbia Law Review, Vol. 75, No. 2 (Mar., 1975), pp. 359-399.
Toledo, Ann Arbor & N. Mich. Ry. Co. v. Pa. Co., 54 F. 746, 751 (C.C.N.D. Ohio 1893)
wherein it was held, "The powers of a court of equity are as vast, and its processes and
procedure as elastic, as all the changing emergencies of increasingly complex relations and the
protection of rights can demand." (quoting Chi., Rock Island & Pac. Ry. Co. v. Union Pac. Ry.
Co., 47 F. 15, 26 -C.C.D. Neb. 1891).
309
A coherent framework must accommodate its dedication to equity or fairness,
which is the most vital guideline of jurisprudence31 with the countervailing
sympathy toward conviction or consistency, which may be the most essential
standard of jurisprudence.32 The engineers of the merger of law and value did not
explain unequivocally how a unified framework could guarantee consistency yet
additionally withdraw from inflexible principles to guarantee fairness in every
situation.
Discretion is the declaration of equity in our blended system,33 and obviously, this
is completely predictable with equity's protocol.34 Yet, there is a huge distinction
in the middle of equity and prudence: typically if not likewise for all intents and
purposes, circumspection is practiced from inside of a framework of conceivable
outcomes. A judge with circumspection may have numerous alternatives inside of
that casing, however the activity of the legal power is in a far-reaching way a
decision. Equity is not comparably constrained.35 Indeed, the very motivation
behind a different arrangement of equity was to offer alleviation from laws that
did not - or couldn't - envision the circumstance introduced. Equity assumed that
laws were the result of human estimations that were not generally exact and of
speculations that were not generally broad. equity offered a getaway from
inflexible guidelines and enabled the legal imagination.36 But this part of equity's
convention has blurred in the bound together framework. In structure, then, that
part of equity's convention spoke to by legal caution has been grasped and
approved, while the part of equity's convention that empowered and supported
activities of the legal creative energy has been abridged or rejected.
31
32
33
34
35
36
Roscoe Pound, Law and Morals 65 (Rothman Reprints 1969) (1924) ("Cases are seldom
exactly alike."); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35
Colum. L. Rev. 809, 840 (1935) ("Every case presents a moral question to the court.").
Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 758 (1982).
F.W. Maitland, The Origin of Equity, in Equity and the Forms of Action at Common Law 1, 47 (A.H. Chaytor & W.J. Whittaker eds., 4th prtg. 1916) (providing examples of judicial
discretion in fourteenth century); Sidney Post Simpson, Fifty Years of American Equity, 50
Harv. L. Rev. 171, 247-48 (1936) (concluding that equity has expanded immensely in relation
to American government and that it acts as an aid to "securing individual rights").
John Freeman Mitford, A Treatise on the Pleadings in Suits in the Court of Chancery by
English Bill 110 (Samuel Tyler ed., Baker, Boorhis & Co. 1880) (noting that administration of
justice is goal of equity courts); 1 Richard Wooddeson, A Systematical View of the Laws of
England 203-06 (Thomas Payne 1792) (explaining differences in nature of equity courts and
courts of law).
Roger L. Severns, Nineteenth Century Equity: A Study in Law Reform (pt. 1), 12 Chi.-Kent L.
Rev. 81, 89 (1934) (discussing ability of equity jurists to ignore precedent).
James Fosdick Baldwin, The King's Council in England During the Middle Ages 64 (photo.
Reprint 1969) (1913); John Salmond, Jurisprudence 1-5 (12th ed. 1966).
310
By portraying the limits of the power in exercise of discretion, or by systematizing
adaptability, the tenet not just limits legal power to those specific reference
focuses, however far more terrible, limits legal power in different settings where
the carefulness or adaptability is not point by point. Administrative endeavours
usurp the more strong part that inalienable power would somehow perform.
The better approach, then, is not more guidelines, but rather less standards. More
and more guidelines will never foresee the greater part of the whimsies that destiny
or human inventiveness are "virile enough to devise"37 What is required is a
promise and come back to more adaptable standards of methodology that mirror
the talk and normal recognition that the procedural tenets are equitable.38 That
cycle must be broken with more extensive principles that encourage power,
practical judgement skills, productivity and fairness in their application.
5.6 DISCRETION IN INJUNCTION CASES: ROLE OF JUDGE
The judge's job at a civil trial is first of all to ascertain the facts, then identify the
relevant rules or principles of law, and finally to apply the law to the facts.
Sometimes there is no dispute about the facts and the only argument is about the
law; and sometimes there is little or no argument about the law and the real
argument between the parties is about the facts; and sometimes after the judge has
decided what happened and what the applicable law provides, the real problem is
what order the judge should make, how he should exercise his discretion. This
discretion is a vital factor and may skew the final determination of the case. The
judicial discretion conferred on courts consists in the power to delay, restrict or
refuse enforcement of a right, even though its existence, strictly speaking, is
established. These are designed to protect the vulnerable from undue hardship and
few object to them. It is not only the strict letter of the law but legal doctrines that
hue the decision making process. Judicial opinions are founded on application of
constitutional provisions, statutes, and judicial precedents through accepted
methods of statutory interpretation and case analysis. Arguments are made
37
38
Colin P. Campbell, The Court of Equity - A Theory of its Jurisdiction, 15 Green Bag 108, 113
(1903).
Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil
Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 970-82 (1987) (writing how equity
was primary influence when drafting Federal Rules of Civil Procedure).
311
logically as step-by-step to a conclusion. Lord Justice Bingham39 described the
discretion of the courts in the form of a questionnaire put by a martian. It is worthy
of extraction and is therefore quoted here:
“So, the Martian persists, where unlawful conduct in the public law sphere is
shown to have occurred or to be threatened, according to clear rules publicly
stated, relief must follow as a matter of right and not of the judge's discretion?
“Well, no, not exactly,” we reply, perhaps with a little less confidence,
acknowledging that public law remedies are for the most part discretionary.
Understandably puzzled, the Martian puts his final question, which I take as the
title of this lecture: Should public law remedies be discretionary? To this I would
answer: “Well, yes, probably, in some cases, up to a point, provided the discretion
is strictly limited and the rules for its exercise clearly understood.” Disgusted with
this tortuous and heavily qualified answer, the Martian stumps off, and we may all
share a sense of relief that he will not reappear.”
Lord Justice Bingham further noted the contours of discretion in various
jurisdictions.40 He stated that the judge in a civil law country would not claim such
discretion. The French administrative judge can annul for vice de forme if an
essential procedural requirement has been broken, as can the European Court under
Article 173 of the EEC Treaty, and this involves a judgment whether the
procedural requirement broken is in truth essential. Similarly, in evaluating the
legality of mesures de police the French judge must make a judgment on
proportionality, and the doctrine of erreur manifeste d'appréciation requires him to
assess whether the erreur is manifeste. Possibly, a civilian judge will exercise a
discretion without acknowledging it as such. However, a continental lawyer would
raise an eyebrow at the notion that a remedy for a proven abuse of power should be
discretionary.
5.7 IMPORTANCE OF DISCRETION IN INJUNCTION
Changing social, economic, political and cultural circumstances place the judge in
novel situations with no express legislative provision to guide his response. How
those circumstances can be faced and whether the civil law is adequately equipped
to meet that challenge, is the dilemma. One of the most effective ways by which a
39
40
Lord Justice Bingham, Should public law remedies be discretionary?, 1991.
William Pitt. See K. C. Davis, Discretionary Justice: A Preliminary Inquiry (1969).
312
legal system can do this is through the discretionary powers given to its judges.41
This area is dominated by the rhetoric of ethical and moral relativism. Richard
Weisberg has pointed out that “leading legal practitioners and judges talk of
'values'. They put forth a strong moralistic outlook under the guise of value
'neutrality'. Over the years, our legal vocabulary has progressively lost its ethical
flavour. Absolutes or near absolutes have been reduced to balancing acts. We have
lost faith in our native or trained intuition about justice. The most interesting aspect
of a legal situation is no longer its potential role as a new chapter in the continuing
story of a just society; rather, each such case is judged in terms of market forces,
balancing tests, or seemingly dispassionate modes of statutory or constitutional
interpretation.”42
The theory of law and its impact on justice is criticized to be ‘intellectually empty
or ideologically suspect’. This seems to create an impression that the decision
making process is ‘intellectually incoherent and morally bankrupt’. This is a matter
of concern since it undermines the pride of the legal system. It is judicial discretion
that remedies this and infuses morality in the judgment process. Thus, the greatest
utility of judicial discretion is the advancement of justice. A law, if mechanically
applied to facts, may lead to injustice. While framing the law, the legislature may
not have conceived of all kinds of situations that may arise in the future. However
the rapid changes in society fuelled by march of technology have created
relationships, contractual and otherwise, that were not contemplated at the time
when laws were drafted. A law that was drafted decades and sometimes centuries
ago may continue to remain relevant and may be fruitfully pressed into service if
only the court uses its discretion wisely in its fair application.
5.8
SUBJECTIVITY OF DECISION MAKING PROCESS AFFECTING
INJUNCTIONS
To fathom the manner in which judges exercise their discretion, one needs to
understand how judges perceive the issues involved in lawsuits, how they see
competing priorities and available choices, and how they make their decisions.
That something beyond legal doctrine influences judicial decision making is not a
41
42
Mac Lean, Roberto G., Judicial Discretion in the Civil Law, 43 La. L. Rev. 45 (1982-1983).
Richard Weisberg, Judicial Discretion, or the Self on the Shelf, keynote speech at the
Conference of New York Civil Court Judges in Ellenville, N.Y., October 1987.
313
secret. In his classic article, The Path of the Law, published over a century ago,
Oliver Wendell Holmes emphasized the unconscious factors that influence a judge:
The language of judicial decision is mainly the language of logic. And the logical
method and form flatter that longing for certainty and for repose which is in every
human mind. But certainty generally is illusion, and repose is not the destiny of
man. Behind the logical form lies a judgment as to the relative worth and
importance of competing legislative grounds, often an inarticulate and unconscious
judgment it is true, and yet the very root and nerve of the whole proceeding.43 The
Legal Realists attempted to move past lawful formalism in clarifying the result of
cases, stressing the indeterminacy of legitimate teaching and strategy and the
subsequent significance of the judges' preferences.44 They trusted that lawful
guidelines and philosophy did not prompt a certain answer as a rule and in this way
left the result to the inclinations of the judge. Some were even incredulous that the
reasons given in conclusions for the result of cases really clarified why the judges
came to their decisions.45 Although the realists' feedback of legal choice making
was very much created, they experienced issues moving past criticism.46 One
branch of Legal Realism bolstered more consideration regarding mental
components. Case in point, Jerome Frank affirmed that judges ought to experience
Freudian therapy to better comprehend their own biases and, accordingly, turn out
to be better judges.47 Over time, to numerous analysts, Legal Realism turned into a
personification recollected singularly for the case that the result of cases was just a
matter of "what the judge had for breakfast."48 Without an uncertainty, be that as it
may, the Legal Realists made a significant commitment to law by their
accentuation on the significance of the shrouded variables in legal choice making.
Judges are people and as people from diverse foundations they translate the same
statute contrastingly and in outcome settle on distinctive decisions. People have
diverse frameworks of convictions that make distinctive channels through which
they see the world and its issues furthermore make distinctive hypotheses to clarify
the world and devise answers for the issues. These conviction frameworks create
43
44
45
46
47
48
Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 465–66 (1897).
Roscoe Pound, The Call for a Realist Jurisprudence, 44 Harv. L. Rev. 697, 707 (1931).
Benjamin N. Cardozo, The Nature of The Judicial Process 9 (1921); Joseph C. Hutcheson, Jr.,
The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision, 14 Cornell L.Q.
274, 279 (1929); John Dewey, Logical Method and Law, 10 Cornell L.Q. 17, 24 (1924).
Richard A. Posner, Frontiers of Legal Theory 3 (2001).
Jerome Frank, Courts on Trial 248 (1949).
Ronald Dworkin, Law’s Empire 36 (1986).
314
from backgrounds with a horde of impacts—from folks and family, peers,
instructors, religious powers, government pioneers, open reporters, etc. Judges,
obviously, have their own particular conviction frameworks, much the same as
other people. Also, it is contrasting conviction frameworks that make for judges
with varying legal methods of insight and for judges to be named either liberal or
traditionalist or either activist or limited. It is clear that the conviction frameworks
of judges are a piece of the concealed parts of judging. Numerous judges
straightforwardly concede the effect their conviction frameworks have on their
choices, frequently in an oblivious and unexplainable way. As Holmes explained:
“The very considerations which judges most rarely mention, and always with
apology, are the secret root from which the law draws all the juices of life. I mean,
of course, considerations of what is expedient for the community concerned. Every
important principle which is developed by litigation is in fact and at the bottom the
result of more or less definitely understood views or public policy; most generally,
to be sure, under our practice and traditions, the unconscious result of instinctive
preferences and inarticulated convictions.”49
The indeterminacy of the legal procedure portrayed above leaves an opening for
conviction frameworks to influence results. What's more, a percentage of the
routines used to choose specific sorts of cases welcome judges to follow up on
their own conviction frameworks. An "adjusting" test, regular in sacred law, as
often as possible obliges judges to adjust unique contemplations. For instance, in
regulatory takings cases, a judge must focus the result by adjusting the damage to
the abused party against the advantage to society, more often than not when
mischief and advantage can't be quantified.50 Another regular methodology
obliges judges to take a gander at various elements and settle on a choice taking
into account the totality of the circumstances.51 Some judges will see one element
as essential; different judges will dismiss that component and focus on another.
Disagreeing assessments are a demonstration of the varying conviction
frameworks of the different judges. There must be various cases that would have
turned out contrastingly if distinctive individuals had ruled for the situation. One
can distinguish the conviction frameworks of judges as having a noteworthy
49
50
51
Oliver Wendell Holmes, The Common Law 31 (1881).
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415–16 (1922).
Penn. Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1977).
315
impact on the result of cases, however this subjectivity is unequipped for exact
definition, but to be named circumspection.
Moral models and self-regulation are critical viewpoints that shape the legal
choice. Judges are additionally obliged by the general public in which they live;
they are liable to contemporary culture, values, and standards. Criticism from
court choices, their reporting in diaries and additionally in media, and their
obvious consequences for monetary and parties likewise makes some motivation
for distinctive results in ensuing cases. Training likewise fortifies the sound
doctrinal technique for choice making. From the time judges were law
understudies and all through their vocations as legal advisors and judges, they are
told more than once in foundations and preparing establishments that lawful
choices turn on acknowledged routines for doctrinal examination. These
imperatives may assume another essential part by making the ambience in which
judges settle on their choices.
These requirements examined above are an intense impact constraining the
impacts of prudence and non-doctrinal components in the larger part of claims.
Thus, non-doctrinal elements are likely most persuasive in cases including
disputable social issues. Subsequently, those working with the law must keep on
focusing on the noticeable piece of judging. The impacts of conviction
frameworks and other non-doctrinal elements assume a part in every single legal
framework, yet to shifting degrees. It is attractive for attorneys and judges to
slight the obscure and to partake in a reasonable and doctrinal lawful procedure.
5.9
COMPARISON
BETWEEN
LEGAL
RULES
AND
JUDICIAL
DISCRETION
In judicial decisions, the distinction between rules and discretion is not absolute
but a matter of degree.52 Rule-based decision-making involves discretion, and
discretionary decision-making also involves rules in the nature of doctrines. The
comparative advantages and disadvantages of rule-based and discretionary judicial
decision-making have often been discussed. Rules have the advantages of certainty
52
S Gardner, “The element of discretion”, in P Birks (ed), The Frontiers of Liability (1994) vol 2,
186 at 193-196.
316
and predictability but may be either under-inclusive or over-inclusive.53 Judicial
discretion may always be able to nearly have just or fair results, whereas fixed
rules, because of their rigidity, may not be able to avoid unjust outcomes on certain
occasions. This is only a singular dimension and may be considered to be a myopic
view since it presupposes that there is always court action. If there is litigation,
however, one of the main advantages of legislation by rules is lost, for the great
advantage of rules is that in many areas of private law they can and do operate
silently and usefully, with certainty and predictability, to guide human conduct
without the expense, trouble, anxiety and uncertain outcome of litigation.
5.10 CRITICISM OF JUDICIAL DISCRETION AND ITS RESPONSES
John Locke stated, “Wherever law ends, tyranny begins”.54 This historic statement
was made to underline the importance of being governed by law with no room for
other doctrines.
When the law leaves room for discretion, it is often denounced on the ground that
discretion is the rule of tyranny and must be limited. Discretion is viewed as the
very opposite of rules. To examine this criticism, one may refer to the true
character of judicial discretion. There is always some discretionary space in which
the judge enjoys freedom of movement, freedom to decide the case before him.
Cases cannot be mechanically determined by applicable rules of law.
Judicial discretion in the grant of injunctions has been viewed as a problem by
Holmes's characterization of adjudication as a form of legislation. In "The Path of
the Law," Holmes asserts that a judge deciding cases must, of necessity, act as a
legislator since the applicable legal rules cannot conceivably constrain him as
suggested by the Langdellian conception. This is however not valid since there is
an irreducible element of free creativity, of interpretative freedom, in the
adjudicative process which is left over after one has taken account of all the rules
that may have a bearing on the facts.
53
54
Critique of rules in F Schauer, Playing by the Rules: A Philosophical Examination of Rulebased Decision-making in Law and in Life (1991) which attacks all or most of the commonly
alleged advantages of rule-based decision-making, e.g. (1) fairness (treating like cases alike; or
suppressing relevant differences); (2) reliance, certainty and predictability; and (3) efficiency.
Section 202 of Chap. XVIII "Of Tyranny" in Book II of the Two Treatises of Government.
317
Critics argue that judges, in exercising wide discretion, tend to frame 'judge-made
law” and doing so, they are acting as legislators and overstepping their limits. It is
urged that such encroachment has no constitutional sanctity and hence discretion is
devoid of legitimacy.55
The said view is however not valid since it presents an extremely narrow
characterization of what the law is, of what must be included in it. The law does
not comprise solely of straightforward propositions or unambiguous rules. It
includes more than “crisply decisive normative standards” and includes what
Ronald Dworkin called policies and principles. These principles influence the
decision and discretion based on them cannot be said to be unguided by law. Also,
these principles and policies guide interpretation of rules where there are different
and conflicting interpretations. Also, after the rules have been followed, there may
be left some grey areas, which have to be decided by discretion of the court. These
doctrines, principles and policies work in tandem and are open-textured. If
however no positive values compete, or if two rules militate against each other in
decision of the case, it is discretion that resolves the deadlock.
Judicial discretion is criticized also because it is associated with uncertainty and
contributes to unpredictability of the law. However, this view ignores that equity is
as uncertain as applicability of statutory or common law rules and equity does not
imply whims of the judge. The principles of equity lay down guidelines as to how
the discretion has to be exercised by judges. In dealing with the said criticism, it is
apt to refer to an article written by a New Zealand jurist, who remarks:56
“Those of us who favour return to a more predictable rule-based system of civil
liability must recognise that appeals to tradition, certainty, and the associated
benefits of administrative efficiency and reduced costs, do not have the same
emotive force and attraction as a general appeal to fairness and substantive justice.
So if the traditional formal categories of civil liability and their associated remedial
regimes are to be preserved and defended, we must be able to demonstrate that
they reflect and serve quite distinct social purposes which remain worthy of
promotion so that something of real value will be lost if the rules associated with
55
56
Kronman, Anthony Townsend, "The Problem of Judicial Discretion" (1986). Faculty
Scholarship Series. Paper 1063.
J Smillie, “Certainty and obligation” (2000) 9 Otago Law Review 633 at 638. See section D.(7)
below.
318
those formal categories are abandoned or eroded.”
5.11 REINING IN JUDICIAL DISCRETION - PLACING CONSTRAINTS
Since judicial discretion is perceived as contributing to uncertainty, there have
been several attempts to limit discretion and to make judicial outcomes more
predictable. For example, the great civil codes of eighteenth century Europe were
designed to provide answers for all contingencies. As Roscoe Pound explained, the
court would function as “a sort of judicial slot machine. The necessary machinery
had been provided in advance by legislation or by received legal principles and one
had but to put in the facts above and take out the decision below.”57 Similar
concerns about unpredictability led to the creation of the Federal Trade
Commission in the early twentieth century. Unhappy with the discretion accorded
to judges by the “rule of reason” in Sherman Act cases, a coalition of business
leaders and progressive reformers wanted a commission that would write a “Code
of Good Business Practices” establishing in advance precise rules of what was and
what was not illegal anticompetitive conduct. Even the Trade Commission could
not create this kind of code. Drafting a code that covered every possible act in
inconceivable. Legal doctrines are bound to influence the outcome of court cases.
The terms of statutes, and the principles enunciated in decisions limit the discretion
of judges and direct the outcome of the case. The unpredictability of the decision in
some cases stems from the dynamic nature of events and things. With new
products, processes, financial instruments, and advancement of technology, the
legal system must continually adapt to unanticipated disputes. The world is too
complex and dynamic to enable comprehensive statutory guidelines to provide
answers for all the problems that may arise. Also, the imprecision of language
makes the law ambiguous. Decision-making relies heavily on analogy drawn from
past decisions. Statutes and precedents thus narrow down the range of potential
outcomes but may not point to the only possible answer.58 The judge must choose
from the narrow range of justifiable outcomes.
57
58
Roscoe Pound, The Spirit of the Common Law 170 (1921).
Richard A. Posner, The Problems of Jurisprudence 131 (1990); Dan Simon, A Psychological
Model of Judicial Decision Making, 30 Rutgers L.J. 1, 14 (1998).
319
5.12
CONDITIONAL
ORDERS
OF
INJUNCTIONS:
DISTINCT
DIMENSION OF JUDICIAL DISCRETION
Under a given set of conditions a judge hearing an application for injunction trial
may possess the discretion to issue an injunction or to deny the same. There can be
several situations where a judge has multiple choices. Since a judge has discretion
to deny relief altogether, in the same spectrum lies his discretion to grant it in part,
or to rephrase it, subject to conditions. In other words, the lesser is included in the
greater.
5.12.1. Germane Conditions
Factors that determine the discretion of a court often call for the consideration of
the court when making the decision to grant or to deny a contested application. If
one or more of those determinants to be perused can be culled, the judge may use
conditions to modify the order as suited to the circumstances at hand. Obstacles
can be removed by conditions that are germane to the parameters that affect a
decision in turn make the relief simpler to decide.
Germane conditions can involve conditional grants. In a regular dispute of civil
litigation, a party may be seeking leave from the court to exceed certain limits on
discovery. When such an application is put forth, a court with appropriate
discretion to grant or deny the application has the choice to grant the application on
the condition that the party seeking it limit the ambit of further questioning . The
conditional order therefore instead choosing two extreme positions, took the
middle path.
5.12.2. Fairness Conditions
Speaking of conditions it is imperative to mention that fairness is an explicit
parameter in exercise of judicial power. Conditions can therefore be imposed in
pursuit of fairness. Judges may place the grant or denial of an application on the
condition of some assurance of reciprocity from the prevailing party.59 Fairness
also involves conditions that can be used to bring to a party's notice of a court's
59
Cynthia Day Wallace, "Extraterritorial' Discovery and U.S. Judicial Assistance: Promoting
Reciprocity or Exacerbating Judiciary Overload?, 37 Int'l Law. 1055, 1057 (2003) (discussing
reciprocal discovery orders between domestic and foreign litigants).
320
intent to take some particular action and at the same time provide for that party an
opportunity to contend that impending action is wrong or unlawful. These
conditions share there affiliation with notions of fairness because the court is
offering the recipient of the notice the opportunity to cure some defect that might
have seeped in. At the same time conditions can also be imposed by judges for
leveling the playing field and remove mitigating disparities.
5.12.3. Efficiency Conditions
Another set of conditions used by the judges to guarantee effective handling of
cases are the efficiency conditions. These are considered essential for imparting
justice quickly.60 And delay can be said to be an inherent structural issue that can
be taken care of by judges who are open to efficient processing of cases.61
Efficiency conditions are one such mechanism.
5.12.4. Source of Power to Issue Conditional Injunctions
The derivation of the power to impose conditions has to be from one of three
fundamnetal sources: legislative authorization, consent, or the inherent authority of
courts.62 First of all such power can be traced from legislature if either (1) the
condition is within the original frame of possibilities, or (2) some other legislative
enactment authorizes the condition. Many contemporary conditions can be sourced
to properly conferred legislative authority which though is restricted in kind and
scope. Secondly, the condition could be sourced via consent of the contending
parties. This is suggestive of the fact that the court in absence of both the
legislative and inherent authority for imposition of the condition, use the parties
consent to the terms of the conditional order. But consent can at times be coerced
60
61
62
The old adage advises that "justice delayed is justice denied." The comment is variously
attributed to William Gladstone or Roscoe Pound. See Martel v. County of L.A., 56 F.3d 993,
1003 (9th Cir. 1995) (en banc) (Kleinfeld, J., dissenting) ("Roscoe Pound said "justice delayed
is justice denied' ... ."); George Walter Brewing Co. v. Henseleit, 132 N.W. 631, 632 (Wis.
1911) ("Gladstone has truly said: "When the case is proved, and the hour is come, justice
delayed is justice denied.'"); Laurence J. Peter, Peter's Quotations: Ideas For Our Time 276
(1977) (crediting Gladstone).
See Thomas Church, Jr. et al., Justice Delayed: The Pace of Litigation in Urban Trial Courts 5
(1978) (reporting findings taken by National Center for State Courts and National Conference
of Metropolitan Courts spanning over eighteen months, which concluded that most essential
element to reduce pretrial delay is court's concern with delay as institutional and social
problem).
See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural
Constitution, 86 Iowa L. Rev. 735, 738-45 (2001) (noting that federal courts' powers come
from inherent authority, positive legislative grant, and legislative consent).
321
therefore it is not the most trustworthy source of such powers. Lastly, the inherent
authority of courts can be the source of certain conditions. The US Supreme Court
has long defined "inherent powers" as those which "cannot be dispensed with
because they are necessary to the exercise of all others."63
5.12.5. Incongruity Between Form And Practice
The form and practice of conditional orders bear testimony to the incongruities that
bring to the fore the contemporary compromise.
In form, it can be stated that there are a growing number of situations where judges
are authorized through legislations to impose conditions. In practice the case may
not be the same. However, if this non-concurrence between form and practice
cannot be ignored, then how should it be dealt with? It is both undesirable and
unworkable to tailor the practice to match the existing form. Conditional orders are
an extremely useful technique for finding intermediate and compromise solutions;
doing away with these options would be unfortunate.
Therefore, if the practice will not or cannot be modified, then presumably the
mismatch can only be rectified by modifying the form to authorize the practice. In
other words, the form must give judges the authority to impose useful conditions.64
5.13 REFUSAL TO GRANT INJUNCTION IN EXERCISE OF DISCRETION
Whenever a right exists or is created by contract, by the ownership of property or
otherwise cognizable by law, a violation of that right will be prohibited, unless
there are other considerations of policy or expediency which forbid a resort to this
remedy.65 Injunction is a discretionary form of specific relief and under Section 41
of Specific Relief Act, 1963, the Court may refuse to grant an injunction if the
plaintiff has disentitled himself to such relief.66 The restraining power of equity
extends through the whole range of rights which are recognized by law and would
be applied to every case of intended violation, except when there are certain
63
64
65
66
Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (citing United States v. Hudson &
Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812)).
Thomas O. Main, Judicial Discretion to Condition, 79 Temp. L. Rev. 1075.
Chandi Ram v. Secretary of State 40 PLR 160.
Human Chand v. Maharaja Bahadur Singh ILR 12 Pat. 631 (PC).
322
exceptional reasons which control and limit its exercise.67 The Court in dealing
with suits for injunction has to consider in each case not merely whether the
plaintiff's legal right has been infringed but also whether under all the
circumstances of the case, the plaintiff ought to be granted an injunction as the
proper and appropriate remedy for such infringement.68
Injunction may be refused either owing to the facts and circumstances of the case
or due to a legal impediment.69 In cases where it is difficult to comprehend whether
the act complained of will cause substantial injury until the injury has actually
happened and in all cases of doubt, the Court should be cautious before granting an
injunction. The Court should not act upon vague apprehensions, though it will
interfere where the defendant claims a right to do the thing threatened which the
plaintiff alleges to be a wrong. The Court will not grant injunction where it appears
that any injunction which may be granted would inflict far more injury on the
defendant than any advantage which the plaintiff would derive from it. Section 41
of the Specific Relief Act, 1963 provides the statutorily recognized grounds on
which injunction can be refused.70 It provides that an injunction cannot be granted
in the cases falling under Clauses (a) to (j). Section 41 is quoted as follows:
“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;
67
68
69
70
Jai Narain v. Municipal Committee Delhi 157 IC 966.
Trivedi, J.T. and Trivedi, Himanshu J. “Abuse of the process of injunction”, Gujarat Law
Herald, Feb-Mar 1994, Vol. 14 p.11.
Masjid Shadhidgani v. Shiromani Gurdwar Parbandhak Committee, Amritsar AIR 1938 Lah.
396.
Sunil Kumar v. Ram Prakash 1988 (1) Sim. LC 262.
323
(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 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;
(i) when the conduct of the plaintiff or his agent has been such as to disentitle
him to the assistance of the Court;
(j) when the plaintiff has no personal interest in the matter.”
This provision specifies the cases in which perpetual injunction cannot be granted.
It lays down exceptions which override the general rule contained in Section 38.
This is evident from the use of the expression, “subject to the other provisions
contained in, or referred to by this chapter” in Section 38. It delineates the defences
that may be set up in a suit for perpetual injunction.71 The mere fact that a case
does not fall under this section does not lead to the conclusion that the suit must be
decreed.72 Even where a case does not fall under Section 41, the Court may refuse
injunction on the ground of delay, acquiescence, abandonment, waiver, hardship or
inconvenience.73
Section 41 of the Specific Relief Act, 1963 corresponds to Section 56 of the
Specific Relief Act, 1877. The modification has been inspired by the report of Law
Commission.74 While formulating Section 41, the legislature omitted clause (d) of
Section 56 on the ground that the first part of the clause referring to any
Government Department in India is inconsistent with the principle embodied in the
second proviso to Article 361(1) of the Constitution. The second part was
considered unnecessary because the immunity of a foreign sovereign in respect of
71
72
73
74
A.B. Hasan v. Sundri 2002 (3) CTC 27.
Uncodified equitable grounds have already been dealt in the former chapter and are therefore
not repeated here.
Galstaun v. Doonia Lall ILR 32 Cal 697.
Ninth Report of Law Commission of India on Specific Relief Act, 1887 p. 53.
324
his sovereign acts is well accepted. No alteration has been carried out in the
remaining clauses of old Section 56 except semantic changes.75
Clauses (a), (b) and (d) of Section 41 of Specific Relief Act relate to stay of
judicial proceedings and find analogy in clauses (a), (b) and (e) of Section 56 of
the Specific Relief Act, 1877. The Specific Relief Act, 1877 faced the controversy
as to whether an injunction can be directed to the Court itself before which the
proceeding is pending.76 The Law Commission supported by the view taken by the
Patna High Court77 opined that an injunction is a remedy in personam which is
directed against the litigant and not against the Court. It was recommended that
suitable changes be carried out in Clauses (a), (b) and (e) of old Section 56 to
remove doubts on this point and changes to this effect have been introduced by the
Specific Relief Act, 1963. The clauses (a) to (d) of Section 41 use the expression
“to restrain any person” which indicates that the injunction is directed to the
litigant and not the court.78 The provisions of Section 41 of Specific Relief Act,
1963 are separately discussed hereinafter.
5.13.1 Clause (a) – Stay of pending judicial proceedings
Section 41(a) of the Specific Relief Act, 1963, provides that perpetual injunction
cannot be granted to stay judicial proceedings pending in other Courts at the time
of institution of the suit in which relief for injunction is sought.79 For instance,
when there were proceedings before a Court for the demolition of a structure, it
was held that the Civil Court could grant interim injunction regarding the
demolition but not concerning the proceedings.80 The exception to this rule is
where the object of injunction is to prevent unnecessary litigation and to suppress
multiplicity of suits.81 When, by granting the injunction, a great number of suits
pending in Courts other than the Court in which the suit for injunction is brought
can be suppressed, such an injunction can be granted. Before this clause can be
relied upon as a ground of defence in a suit for perpetual injunction, it must be
shown that at the time of institution of the suit in which injunction is sought, a
75
76
77
78
79
80
81
Gupta, Nirvikar, “Refurbishing judicial powers and updating legal tools”, Allahabad Law
Journal, June 2003, Vol. 101 p. 57.
Jawala v. Ram Dutta AIR 1964 All 437.
Mahant Ramkeshwar Das v. Baldev Singh AIR 1938 Pat. 606.
Lakhami Chand v. Sarla Devi (1987) (2) PLR 292.
Dakhilal Kushwaha v. Additional District Judge 1986 All CJ 376.
Eastern Tea Estate v. Silchar Municipality AIR 1967 Assam 1.
Municipal Board, Meerut v. Bir Singh AIR 1965 All 527.
325
judicial proceeding is pending in another Court and is not merely contemplated,
and that the object of the relief by way of injunction is to prevent multiplicity of
suits.82 Courts of Equity will not grant an injunction to stay proceedings at law,
merely on account of any defect of jurisdiction of the Court where such
proceedings are pending.83 For instance, an injunction restraining a decree-holder
from executing a decree against the person applying for the injunction was granted
on the ground that the proceedings in which the decree was obtained against him
were altogether illegal.84
5.13.2 Clause (b) – Stay of proceedings in a superior or co-ordinate Court
As per Section 41(b) of the Specific Relief Act, 1963, 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.85 Injunctions to stay
proceedings can only be granted in cases where the Court in which the proceedings
are to be stayed is subordinate to that Court in which the injunction is sought.86
This provision can be applied to cases where there is no dispute in regard to
material facts barring the jurisdiction of the Court in regard to the granting of
injunction and by implication prohibiting the entertaining of the injunction suit.87
The expression “any proceeding” is used by the Legislature in a generic sense. It
denotes the form and manner of conducting judicial business before a Court or a
judicial office. The word “proceeding” is preceded by the word “any” which
clearly means “each, and every or all” lending an expensive connotation to the
term.
Section 41(b) is not a provision which renders an injunction order useless or
prevents the Court from passing an injunction order. This provision has nothing to
do with the question as to whether the acts of the party can be legally restrained or
not. It only lays down that a party cannot be prevented from approaching such a
Court.88 When a party approaches the Court, it will naturally have to decide,
82
83
84
85
86
87
88
Karnadhar v. Hari Prasad ILR 37 Cal 711.
Story, Equity Jurisprudence, 12th Edn., Secs. 896 and 898.
Dhonidhur v. Agra Bank ILR 5 Cal 86.
Ram Gopal Banarsi Dass v. Satish Kumar AIR 1986 P&H 52.
Municipal Board, Meerut v. Bir Singh AIR 1965 All 527.
M. Holkar v. A.P. Srihan AIR 1985 Punj. 24.
Hussain Khan v. Saikh Ahmed 1988 (1) CLJ 416.
326
whether the party has a right on merits or whether his right is legally protected.89 If
a person whose right has been legally restrained files a proceeding in the Court, it
will be dismissed not on the ground that he cannot approach the Court, but on the
ground that his right has been legally restrained and as such he has no case on
merits.90
In an execution proceeding pending before the District Judge, certain immovable
properties having been ordered to be sold, a third party preferred an objection
which was disallowed. He thereupon brought a suit in the Court of a Sub-Judge for
a declaration of his right to the property and also applied for an injunction to stay
the sale of that property. His prayer for temporary injunction was granted and the
District Judge, in accordance with the injunction, postponed the sale. It was held,
on appeal that Section 41 applied only to perpetual injunctions, temporary
injunctions being left by Section 37 to be regulated by the Code of Civil Procedure
and Section 41 was not intended to affect injunctions applied for under Order 39
Rule 1 of Code of Civil Procedure. The temporary injunction, therefore, granted by
the Sub-Judge was not ultra vires and the District Judge was bound to postpone the
sale as he did, and he did not act irregularly in doing so.91
A defendant had obtained a decree for recovery of possession, but before he had
taken any steps to execute, a suit was filed for injunction to restrain the defendant
from taking possession by execution of the decree. It was held that the plaintiff was
not entitled to an injunction.92 In another case, after a decree on a benami mortgage
by a benamadar, a suit was instituted by the real mortgagee for a declaration that
he was entitled to the benefit of the decree and had the right to execute it for an
injunction restraining the defendant from recovering the amount payable under the
decree. It was held that the injunction prayed for could not be granted under
Section 41 (b), but that he was entitled to the declaration.93 It was held in another
case that a suit to restrain the defendant from executing a decree obtained by him
in the same Court, not a subordinate one, against others, contravenes Section 41(b).
Such a suit is not tenable under Section 41(a) also unless it is necessary to prevent
89
90
91
92
93
Sethurayar v. Shanmugum ILR 21 Mad 353.
Trishla Jain v. Oswal Agro Mills Ltd. (1989) 39 DLT 403.
Amir Dulhin @ Mahomedijan v. Administrator General of Bengal ILR 23 Cal 351.
Karnodhar v. Hari Prosad ILR 37 Cal 731.
Sethurayar v. Shanmugan Pillai ILR 21 Mad 353.
327
multiplicity of proceedings.94
Pollock has opined that the expression “proceedings” in this clause should not be
confined to proceedings pending in a Court and apply to proceedings intended or
threatened to be taken by a party.95 As to proceedings before the same Court it was
held that no injunction can be granted in view of Section 41(b). Justice Mukherji
has observed that the prohibition operates only in respect of Courts which are not
subordinate in the sense that they are co-ordinate or superior, and not in respect of
the Court itself which must always be taken as competent to regulate its own
proceedings.96 Thus, the bar enacted by Section 41 (b) cannot be applied where a
Court grants injunction in respect of the proceedings before itself.97 When the
Court constituted under the Rent Control Act is conferred upon special jurisdiction
to deal with the matters arising out of the Act, it cannot be considered as a court
subordinate to the ordinary civil court. Hence, the ordinary civil court ought not to
pass an injunction, which would tantamount to an order without jurisdiction.98
An Indian Court cannot issue an injunction restraining proceedings in a foreign
Court.99 It has been held that Courts in India have no power to restrain a person
from prosecuting proceedings in Courts at London.100 To obtain an injunction
restraining a defendant in a suit pending in India from prosecuting a suit on the
same cause of action in a foreign Court, it was held that the application for
injunction could not be entertained unless made at the threshold of the
proceedings.101 In a case before the Supreme Court, there was a petition for setting
aside an award coupled with a prayer for restraining the respondent from
proceeding further in an American Court. The Court found the circumstances to be
such that a refusal to grant relief would have been unfair to the petitioner. The
relief of restraint was granted by an interim order.102
Subordination of tribunals under Article 227 of the Constitution does not make
Debt Recovery Tribunals subordinate to High Court within the meaning of Section
94
95
96
97
98
99
100
101
102
Venkatesa v. Ramaswami ILR 18 Mad 338.
Pollock and Mulla, Specific Relief Act, 8th Ed. p. 910.
Ramsadan v. Mathura AIR 1925 Cal 233.
Raghavan v. Sankaran Ezhuthassan AIR 1993 Ker 178.
Mohammed Ameer v. Hafeez Khan AIR 1990 Kant. 32.
Mt. Magbul v. Amir Hasan 20 CWN 1213PC.
Pari Hingorani v. Shakuntala AIR 1987 Del 307.
Tihans Chand v. Santosh 24 CWN 1213 PC.
ONGC v. Western Company of North America AIR 1987 SC 674.
328
41(b). The High Court has no power to stay proceedings pending before the Debt
Recovery Tribunals in exercise of power under Section 9 of Code of Civil
Procedure, 1908 or Clause 12 of Letters Patent, as Debt Recovery Tribunals cannot
be equated with a Court.103
When injunction is to be issued in respect of the proceeding in the same Court, the
interdict contained in Section 41(b) is not applicable.104 Proceedings pending in
superior courts and courts of equal grade or co-ordinate courts cannot be regulated
or controlled by other courts as a matter of public policy. This is the clear message
which can be discerned from the provision. However, this does not imply that a
Court is prevented from regulating its own proceedings. If the court becomes
helpless in controlling its own proceedings the consequence may be harsh and the
proceedings may be transformed to a rigid set of rules mechanically applied. The
interdict contained in Section 41(b) must not therefore be stretched to the extent of
rendering a court helpless in preventing abuse of its own proceedings.
Clauses (a) and (b) of Section 41 operate in different areas. Clause (a) is applicable
only when a judicial proceeding is actually pending in another Court. It has no
application to proceedings which are not pending but are threatened. Clause (b) has
no application where an individual institutes or prosecutes any proceeding in the
same Court from which injunction is sought. Clauses (a) and (b) taken together lay
down that no injunction can be granted to restrain any person from instituting or
prosecuting any proceedings in a Court of superior or co-ordinate jurisdiction.
5.13.3 Clause (c) - Restraining a person from applying to a legislative body
Section 41(c) of Specific Relief Act, 1963 lays down the rule that an injunction
cannot be granted to restrain persons from applying to any legislative body. The
principle is based upon considerations of public policy and owes its origin to
English Law. English Courts have recognized such power but have not frequently
exercised it.105 Section 41(c) refers to any legislative body whether in India or
outside India.106
103
104
105
106
Malik Sohara Khan v. Ahmad Khan 57 PR 1899.
Santha v. Vasu AIR 1996 Ker. 188.
Steele v. N. Material Ry. Co. (1867) LR 2 Ch. 237.
Dr. Banerjee, Tagore Law Lectures, 2nd Edn., p. 164.
329
5.13.4 Clause (d) – Restraint of criminal proceedings
Under Section 41(d) of Specific Relief Act, 1963, a Court has no jurisdiction to
restrain institution or prosecution of proceedings in any criminal matter.107 This is
notwithstanding that criminal proceedings and civil action both may be based on
the same wrongful act.108 The court will not interfere by injunction to prevent
criminal proceedings being taken against a person who is a defendant to pending
action109 notwithstanding that criminal proceedings and the action are based on the
same wrongful acts and the Court will not, unless in very exceptional
circumstances, interfere by declaration of right or injunction in case where the
Legislature has pointed out a mode of procedure before a Magistrate.110 The
weight of authority is however for the proposition that the criminal proceedings
should not go on during the pendency of civil litigation.111 The High Court has
power to direct that criminal proceedings in the court of a magistrate should be
stayed, until the disposal of a civil suit, in which the question at issue in the
criminal proceedings is a subject of adjudication.112 Where in a proceeding under
Section 145 of Criminal Procedure Code, final order is passed, in a suit by the
plaintiff for declaration of title and consequential relief, temporary injunction
cannot be granted for that would amount to restraining the defendant from
prosecuting proceedings in the criminal court.113
Though it cannot be asserted that there is absolutely no jurisdiction in the Court to
restrain proceedings before a magistrate, the Court will not interfere unless in
exceptional circumstances by way of injunction or declaration of right.114
Preponderance of judicial opinion is in favour of stay of criminal proceedings
when a civil suit arising out of the same transaction is pending.115 When a
complainant is injuncted not to proceed with a criminal proceeding, it does not
imply that the Magistrate cannot proceed with the trial. It only means that the
complainant himself cannot take any active step though he can give evidence, if so
107
108
109
110
111
112
113
114
115
In re Essappa Chettiar AIR 1942 Mad 756.
Kerr, Injunction, 6th Ed. p.8
In re Devji Valada Bhavani ILR 18 Bom 581.
Rajkumari v. Bamsundari ILR 23 Cal 610.
In re Sharan Maharaj ILR 16 Bom 729.
Rajkumari v. Bamasundari 23 Cal 610.
Kaliprasad v. Gadadhar AIR 1978 Ori 8.
Corporation of Calcutta v. Bejoy ILR 50 Cal 813.
Waverly Borough Council v. Hilden (1988) 1 WLR 246.
330
ordered by the Magistrate.116 An injunction to restrain criminal acts may be
obtained where something more than just infringement of the criminal law justifies
involving the assistance of civil proceedings.117
5.13.5 Clause (e) – Preventing Breach of Contract incapable of Specific
Performance
According to Section 41(e) of Specific Relief Act, 1963, a Court will not grant an
injunction to prevent the breach of a contract if the contract is such as cannot be
specifically enforced under the provisions of Chapter II of this Act.118 The grant of
injunctions, therefore, is always guided by the same principles as the grant of
specific performance of contracts.119 This clause naturally follows from the rule in
Section 38 (2) which provides that when the obligation arises from contract, the
Court in granting or refusing an injunction, shall be guided by the rules regarding
the grant of specific performance of a contract in Chapter II.120 Hence, if the
contract is such as is not capable of being specifically enforced, no injunction can
be granted to prevent its breach.121
A contract appointing the petitioner as a sole stockist for a period of six months for
sale of watches was not capable of specific performance and therefore injunction
was not granted to prevent breach of such a contract.122 The defences available in a
suit for specific performance of a contract would also be available in respect of an
injunction, for instance, uncertainty of the terms of the agreement. An injunction
will be refused where damages afford adequate relief or when the contract is
determinable.123 A company cannot be restrained by injunction from dispensing
with the services of Managing Agents even when the contract of service provides
that the Managing Agents are only to be removed in a specified manner and after a
specified period. Nor can the shareholders be restrained by injunction from
considering the question of such removal at an extraordinary general meeting. The
remedy of the Managing Agents for dismissal, if wrongful, lies in a suit for
116
117
118
119
120
121
122
123
In re Essappa Chetiar AIR 1942 Mad 756.
Portsmouth City Council v. Richards (1989) 87 LGR 757 CA.
Rani Mohanraj v. P. Rajarathinam AIR 1999 Mad 448.
Suresh D Sanghvi v. Mohasinali H. Merchant 1891 Mah LJ 276.
State Bank of India v. Madhumita Construction Pvt. Ltd. AIR 2003 Cal 7.
Santha v. Vasu AIR 1996 Ker. 188.
S.K. Gupta v. Hyderabad Allwyn Ltd. AIR 1988 Del 324.
Ramchandra v. Ram AIR 1971 Raj 392.
331
damages.124 Where there was an agreement between the plaintiff and defendants
that the former should function as manager of a Tea Co., and the directors
appointed a new manager in breach of the agreement, it was held that an injunction
restraining the defendants from appointing a new manager could not be granted as
the duties were in the nature of personal service.125 Where more than twenty
artisans signed an agreement whereby they constituted themselves into an
association for the purpose of enhancing the price of their work by bringing all
their business of the trade into one shop and dividing the prices or the work done
amongst the members according to their skill, it was held that the Court could not
grant an injunction to restrain the breach of such agreement.126
5.13.6 Clause (f) – Preventing nuisance
Under Section 41(f) of Specific Relief Act, 1963, the Court will refuse to grant an
injunction to prevent an act, with respect to which, it is not reasonably clear that it
amounts to nuisance. An injunction ought not to be granted to prevent a contingent
nuisance, that is, to prevent an act which may or may not be nuisance according to
circumstances.127 The injury must be substantial and such that it cannot be
adequately compensated in damages.128 A person is entitled to enjoy his own
property in any way he likes, provided he does not create a nuisance or interfere
with the rights of others.129 The law does not regard trifling and small
inconveniences but takes note of considerable inconveniences, injuries which
substantially diminish the comfort, enjoyment or value of the property.130
Nuisance is of two kinds namely public and private. Public nuisances are indictable
nuisances and are a species of criminal offence being punishable under Chapter
XIV of the Indian Penal Code, 1860. A private nuisance is some unauthorized use
of a man's own property causing damage to the property of another, or some
unauthorized interference with another's enjoyment of his property, causing
damages.131 Private nuisances are of two kinds viz. (a) any wrongful disturbance of
an easement or other servitude appurtenant to land, and (b) the act of wrongfully
124
125
126
127
128
129
130
131
N.C. Sircar & Son v. Braborni Coal Concern Ltd. 16 CWN 289.
Mair v. Himalayan Tea Co. 1865 LR 1 Eq 411.
Bhikaji Sabaji v. Bapu ILR 1 Bom 550.
Anil Mishra v. State of MP 1992 (1) EFR 340.
Umapati Choudhuri v. Subodh Chandra Choudhuri AIR Cal 377.
Kerr, Injunctions, 6th Ed. p. 137.
Syed Pitchai v. Devaji AIR 1937 Mad 21.
Underhill, Torts, 8th Ed. p. 128
332
causing or allowing the escape of deleterious things into another person's land, for
eg. water, smoke, smell, furness, gas, noise, heat, vibrations, electricity, disease
,germs, animals and vegetation.132
In order to obtain an injunction, the plaintiff must show a strong probability that
the apprehended mischief will, in fact, arise in order to induce the Court to
interfere.133 There are at least two necessary ingredients for quia timet action.
There must, if no actual damage is proved, be proof of imminent danger, and there
must also be proof that the apprehended damage will be very substantial.134 In
estimating as to whether a certain act amounts to a nuisance or not, due regard
should be paid to the standard of life of the plaintiff and nature of nuisance itself.
In an action for nuisance, it is no answer to say that the defendant has done
everything in his power to prevent its existence.135 What amounts to a nuisance
must largely be a question of fact to be determined by reference to the
circumstances of each case, the test being that there shall be a considerable
abridgment of the plaintiff's right resulting in loss to him.136
The foundation of the jurisdiction of the Court by injunction in the case of
nuisance to dwelling-houses or business premises is such a degree of injury to
property as interferes materially with its comfort and enjoyment either for domestic
purposes or business.137 If the house is a dwelling-house, the standard of the
amount of damage that calls for grant preventive relief is the comfort and
enjoyment in their abode to which the occupiers are reasonably entitled, and this
must be estimated according to the plain and simple notions entertained by persons
in ordinary life, and not according to those held by persons accustomed to elegant
and dainty habits of living.138 If the premises are a factory or a place of business,
the rule or standard is damage to such extent as would render it less suitable for the
purposes of business.139 In deciding whether a defendant's acts have materially
interfered with the use and enjoyment of the plaintiff's dwelling-house or place of
business according to the ordinary requirements of reasonable men, the Court will
132
133
134
135
136
137
138
139
Parma Nand v. Smt. Chimmavati AIR 1955 All 64.
Azizan v. Mulak ILR 21 Cal. 437.
Amarendra v. Baranagore Jute F. Co. Ltd. 49 Cal. 1059.
Bai Bhicaji v. Perojshaw 40 Bom 401.
Paul v. Robson ILR 39 Cal 59.
Kunhamed v. Kutti ILR 14 Mad 167.
Mahadei Kunwar v. Babni 50 IC 18.
Appolinario Euclides De Sourza v. Rudilfo Fransicquinho De Souza AIR 1975 Goa 6.
333
consider not merely the acts of the defendant, but also the nature of the trades
usually carried on in the locality, and the noises and disturbances existing there
prior to the acts of the defendant which are complained of.140 If, after taking all
these circumstances into consideration, the Court finds that there is a substantial
interference with the comfortable use and enjoyment of the plaintiff's property
according to the ordinary requirements of mankind the Court will grant relief.141
5.13.7 Clause (g) – Acquiescence in a continuing breach
Under Section 41(g) of Specific Relief Act, 1963, the Court will refuse to grant an
injunction to prevent a continuing breach in which the applicant has acquiesced. It
is noteworthy that the acquiescence is of no avail unless the breach is a continuing
one and extends over a long period with the knowledge or consent of the person
interested to prevent it.142 But where each act, though similar in kind, is separate
and complete in itself, there is no continuing breach.143
As soon as man with full knowledge, or at least with sufficient notice or means of
knowledge, of his rights,144 and of all the material circumstances of the case,145
freely and advisely,
146
does anything which amounts to the recognition of a
transaction,147 or acts in a manner inconsistent with its reputation, or lies by for a
considerable time,148 and knowingly and deliberately permits another to deal with
the property, or incur expenses,149 under the belief that the transaction has been
recognized, or freely or advisely abstains for considerable lapse of time from
impeaching it, there is acquiescence.150 If a person with a full knowledge of his
legal right stands by and allows another person to build on his property or to deal
with it in any other way, so as to induce a reasonable belief that he assented to it,
equity stands in the way of his making any complaint afterwards. This is known as
140
141
142
143
144
145
146
147
148
149
150
Ladli Prasad Jaiswal v. Karnal Distillery Ltd. AIR 1963 SC 1279.
Kerr, Injunction, 6th Ed. p. 158.
United Commercial Bank v. M/s New Model Industries P. Ltd. 1987 (2) PLR 86.
Durga Prasad v. Banara Bank Ltd. AIR 1963 SC 1322.
De Bussche v. Alt. (1878) 8 Ch. 313.
Kerr. Injunctions, 6th Edn., 43 at p. 44.
William v. Earl of Jersey, C. & Ph. 97.
Gerrad v. O'Reilly, 3 Dr. & War. 414 at p. 433; Bankart v. Houghton, 27 Beav 431; Hogg v.
Scott, L.R. 18 Eq. 444 at p. 454; Smith v. Smith, L.R. 20 Eq. 500 at p. 503; Wilmott v. Barber,
L.R. 15 Ch. Div. 96 at p. 105; Proctor v. Benniss, L.R.R. 36 Ch. Div. 740.
Sardar Mull v. Anarchand 23 CWN 811.
Price v. Bala Rly., 50 L.T. 797.
Kerr, Fraud and Mistake, 7th Edn. p. 597.
334
the equitable doctrine of acquiescence.151 There can be no acquiescence if an act is
permitted under an erroneous belief. On the defendant's part, it must be shown that
he acted in good faith believing that he was entitled to do the act. The rule is based
on the well known case of Ramsden v. Dyson152, which has been followed in
various cases in India.
The plea of acquiescence is applicable to suits for which a fixed term of limitation
is prescribed by law, but merely delay in enforcing a right does not constitute
acquiescence. In a case, the plaintiff abstained from suing for ejection for two
years knowing that the defendants were building on the land. It was held that under
the circumstances of the case delay in the institution of the suit was not sufficient
to deprive the plaintiff of her right to relief.153 But the equitable doctrines of laches
and acquiescence do not apply to suits for which a specific period is provided in
the Limitation Act, 1963.154
A man cannot be precluded from asserting his own rights by acquiescence in acts
of other parties inconsistent with them unless he has actual knowledge as
distinguished from the means of knowledge of is rights.155 He must have
knowledge that the persons acting inconsistently with them are doing so under the
mistaken belief that they are exercising rights of their own and ought to have
encouraged the parties so acting to spend money or do other acts either directly or
by abstaining from asserting his legal rights.156 In order that acquiescence should
operate as a bar to redress, it must amount to fraud. Vindication of right after
having acquiesced in the breach would be perpetuate a fraud on the defendant.157
Fraud is the real basis of the whole doctrine.158 There is no acquiescence if the
party is not aware of the violation of his legal rights or if there is no injury to
acquiesce in or if he acted in ignorance of consequence.159 Acquiescence though it
bars an injunction does not necessarily bar compensation.160A lessor is not
restrained by any rule of equity from bringing a suit to evict a tenant, the term of
151
152
153
154
155
156
157
158
159
160
Fatehyab Khan v. Muhammed Yusuf 9 All 434.
LR 1 HL App 129.
Uda Begum v. Imamuddin 1 All 82.
Rau v. Raja Rau 2 Mad HC 114.
Kun Muhammad v. Narayan ILR 21 Mad 320.
Jugmohan Das v. Pallanjee Eduljee 22 Bom 1.
Yaru v. Sanaullah ILR 19 All 259.
Amulya Chandra v. Kashinath Missir AIR 1927 Pat. 297.
Wood v. Sutcliffe (1851) 2 Sim NS 163.
Lindsay Petroleum Co. v. Hude LR (1873) 5 PC 239.
335
whose lease has expired, merely by reason of that tenant's having erected
permanent structures on the land leased, such building having been within the
knowledge of the lessor, and there not having been any interference on his part to
prevent it.161 To raise an equitable estoppel against the lessor precluding him from
suing on the determination of the tenancy, for possession, the tenant should show
facts sufficient to justify legal inference that the lessor has contracted that the right
of tenancy should be changed into a right of permanent occupancy. Acquiescence
by the lessor in this case was a legal inference to be drawn as the onus of
establishing sufficient cause for an equitable estoppel had not been discharged by
the tenant.162
5.13.8 Clause (h) – Availability of Equally Efficacious Relief
Under Section 41(h) of Specific Relief Act, 1963, injunction cannot be granted
when equally efficacious relief can be obtained by any other usual mode of
proceeding except in a case of breach of trust. The words “equally efficacious
relief” are significant. The condition of equally efficacious relief is not restricted to
damages, but extends to other remedies such as recovery of possession, statutory
remedies and the like, which are in the circumstances of the case 'equally
efficacious'.163 It cannot be said that a relief before tribunals like those provided in
the Income Tax Act is as efficacious as a relief which can be granted by the civil
court.164 The clause provides that the existence of an alternative relief will be a bar
to injunction, if three conditions are satisfied:
(a)
The alternative remedy must be equally efficacious;165
(b)
There must be a certainty of obtaining such remedy;166
(c)
Such remedy must be available by a usual mode of proceeding.167
If remedy by way of damages is found to be efficacious, ordinarily the equitable
161
162
163
164
165
166
167
Kerr, Injunctions, 6th Edn. p. 357.
Beni Ram v. Kundan Lal ILR 21 All 496 PC.
Fakir Chand v. Nagar Palika, Murad Nagar 2003 AIHC 2328.
Raja Bahadur Kamakhya Narain Singh v. Union of India AIR 1966 Pat 305.
Baijnath v. Mansukh Rai 23 CWN 258.
Rajkumari v. Bamsundari ILR 23 Cal 610.
In re Sharan Maharaj ILR 16 Bom 729.
336
remedy of injunction would be refused.168 It was observed169 that when the injury
is small, is capable of being estimated in money, can be adequately compensated
by a small monetary payment, and it would be oppressive to grant an injunction,
then damages should be awarded. However, even if these requisites do exist in
favour of the defendant, he may by his conduct have disentitled himself to
damages.170 Where the defendant had entered into an agreement with the plaintiff
to sell land, injunction restraining the defendant from transferring land to any other
person except plaintiff cannot be granted as he was entitled to equally efficacious
relief by filing a suit for specific performance.171 The question whether the
alternative remedy is equally efficacious is a question of fact to be determined in
each case and no hard and fast rule can be laid down.172 Where a remedy is given
by a statute creating certain rights and liabilities, the procedure of such a remedy
would be the usual mode of proceeding whereby an equally efficacious relief can
be obtained.173 An injunction would be refused when the plaintiff had a remedy by
way of appeal from an order of assessment.174
Where the claim was confined only to protection of possessory rights of the
property in accordance with terms of the agreement, that being a distinct relief not
relatable to monetary liabilities under the agreement, the suit for injunction was not
hit by the provisions of Sections 41(h) and 14.175 A suit for injunction simplicitor
will not lie where an equally efficacious remedy of possession can be obtained. But
in a case where because of some jural relationship between the parties, possession
in the eyes of law has to be deemed to be that of the plaintiff, the requirement of
first obtaining decree of possession will not apply.176 As against a trespasser a
plaintiff is entitled to enforce his right of taking back possession and the Court has
no discretion to refuse such a relief.177 Where the prospective purchaser had a live
cause of action for instituting a suit for specific performance and filed a suit for
perpetual injunction for protection of his possession, it was for the court to
168
169
170
171
172
173
174
175
176
177
S.K. Gupta Prop. M/s Roshini Times v. Hyderabad Allwyn Ltd. (1988) 23 DLT 27.
Shelfer v. City of London Electric Lighting Co. L.R. (1895) 2 ch. 287: 64 L.J. Ch. 216.
Daniel v. Ferguson, L. R. (1891) 2 Ch. 27 and Vol Joel v. Hornesy, L. R. (1895), 2 Ch. 774:
65 L. J. Ch. 102.
Satish v. Hansraj AIR 1980 P&H 351.
Municipal Committee v. Sant Singh AIR 1940 Lah 377.
Municipality, Akola v. Shantaram AIR 1946 Nag 78.
Delhi Municipality v. Suresh Chandra Jaipuria AIR 1976 SC 2621.
Rocklines Constructions v. Truptik Patel AIR 2003 Kant 73.
Geetanjali Nursing Home v. Dileep Makhija AIR 2004 Del 53.
Dakhilal Kushwaha v. Additional District Judge 1986 All CJ 376.
337
consider whether to grant a decree of perpetual injunction or not.178
5.13.9 Clause (i) – Conduct of the Plaintiff
Section 41(i) of Specific Relief Act, 1963 rests on the maxim, “He who seeks
equity, must do equity.”179 The grant of equitable relief is discretionary and the
court might very well refuse it, if a party has by its conduct forfeited its claim to it,
or there exists circumstances which make it inequitable to grant it.180 Being an
equitable remedy, injunction cannot be granted to a plaintiff who has not “come
with clean hands”181 and is guilty of some unfair or improper conduct which is
discountenanced in equity. Hence, even though a plaintiff may otherwise establish
a case for injunction, it will be refused where the plaintiff or his agent is guilty of
fraud, malpractices, dishonesty182 or his conduct is not fair or honest.183 This
principle may be illustrated with the aid of celebrated examples. However
improper or unfair the conduct of B had been, A by his own conduct debarred
himself from the equitable relief sought.184 If a trademark represents an article as
protected by a patent, when in fact it is not so protected, such a statement amounts
prima facie to a misrepresentation of an important fact, which would disentitle the
owner of the mark to relief against any person who pirated it.185 A trader who
falsely leads purchasers to believe that they are buying something different from
that which in fact he is selling, or is guilty of any misrepresentation with respect to
his goods so as to amount to a fraud upon the public, disentitles himself as against
a rival trader to that relief which he would have otherwise obtained.186 Want of
diligence or lack of prompt action would be fatal to the relief of injunction.187 A
person claims to have been taking water to his land from a well in the defendant's
land. The defendant filled it with earth. Since, the plaintiff did not take any steps to
open the well, he was disentitled from claiming an injunction.188 Similarly, laches
178
179
180
181
182
183
184
185
186
187
188
Sadashiv Chander Bhamgore v. E.P. Nangude AIR 2004 Bom 378.
Seeni v. Santhannathan Chettiar ILR (1897) 20 Mad.
Haji Mohd. Sayeed v. Abdul Ghafoor AIR 1955 All 688.
Kazim Hassan v. Ramswarup AIR 1929 All 877.
Bisheswar v. Muirhead 14 All 362.
Hyderabad Stock Exchange v. R.R. & Co. AIR 1958 AP 43.
Littlewood v. Coldwell 11 Prince 97.
Morgan v. Mac. Adam (1867) 36 LJ Ch 228.
Perry v. Truefitt 6 Beav 76.
Jai Narain v. Municipal Committee AIR 1935 Lah 157.
Chheddu Singh v. Kewal AIR 1963 All 122.
338
disentitle a person to the discretionary relief of an injunction.189
5.13.10 Clause (j) : Where Plaintiff has no personal interest
Under Section 41(j) of Specific Relief Act, 1963, the Court will refuse to grant an
injunction if the plaintiff has no personal interest in the matter, that is, if he is
merely a nominal plaintiff.190 When only a charge is created over a property for
payment of maintenance, the maintenance holder has no personal interest in the
property and she cannot ask for injunction restraining the tenants from paying the
rent to the husband.191 Thus, in suits against municipality, it has been held that
even where the act of the municipality is ultra vires, a person can obtain an
injunction to restrain the municipality only if the plaintiff proves some special
damage or injury caused or likely to be caused to him by such act, for eg. an injury
to the plaintiff's property192 or an infringement of his right of easement or
nuisance.193 A similar question would arise as regards an individual's right to get an
injunction against his neighbour who has acted in contravention of municipal
regulations. The private individual has to prove special damage to obtain locus
standi. It will not do merely to argue that building restrictions are there to protect
neighbours and therefore they always have locus standi to apply for an
injunction.194 The plaintiff has to establish actionable measure.195 The extent or
quantum of interest is immaterial. Any interest, however small, will enable the
plaintiff to sue for injunction to protect that interest.196 Thus, any person who
contributes to a public fund is interested in the due application of that fund and is
entitled to restrain the misapplication thereof.197
It is clear from the foregoing that injunction has been consistently maintained and
applied as an equitable and discretionary relief.198 Cardinal principles of equity
finding expression in the maxims “He who seeks equity must do equity”,199 “He
189
190
191
192
193
194
195
196
197
198
199
Yusuf Alim v. Mahomed Din 104 IC 563.
N.W. Ry. Administration v. N.W. Ry Union AIR 1933 Lah 208.
Anil Kumar v. Bhagirath Lal AIR 1962 Punj 514.
Nandalal v. Provodayal AIR 1952 Cal 74.
Parakh v. Rudra ILR (1941) Nag 266.
Kanuga v. Joshi ILR 1968 Bom 325.
Lalit Mohan Mitra v. Samarendra Kr. Ghosh AIR 1977 Cal 174.
Vaman Tatyoji v. Municipality of Sholapur (1989) 22 Bom 646.
Ushaben v. Bhagyalaxmi Chitra Mandir AIR 1978 Guj 13.
Snell, Equity, 27th Edn. p. 40
Shelfter v. City of London Electric Lighting Co., L.R. (1895) 1 Ch. 287 at p. 333; 64 L.J. Ch.
216.
339
who comes Court must come with clean hands”200 and “Equity aids the vigilant,
not the indolent”201 have been recognized as the guiding factors.202
5.14 REASONS FOR INCLINATION TOWARDS JUDICIAL DISCRETION
There is a strong undercurrent in favour of judicial discretion. There are several
factors contributing to this.
The first reason is the apparent change in public opinion and the judges attitudes
from principles to pragmatism. Judges were no longer content to apply rules with
unjust effects and to wash their hands off the result.203 In England Lord Goff in his
influential paper of 1983 on “The search for principle”204 rejected what he called
“the dogmatic fallacy--seeing law in terms of rules rather than in terms of
principles”. Mr Justice Finn of the Australian High Court spoke of an “emphasis
on standards (and not on rules)” resulting in “a far more instance-specific
evaluation of conduct”.205 This collapse of confidence in rules has been relatively
new and striking.
The second reason is the enactment of statutes that are conferring discretions to
courts albeit subject to guidelines. Statutory discretions relieve the legislature of
the difficult and sometimes impossible task of formulating a general rule which
would operate justly in virtually all circumstances, foreseen and unforeseen.
Statutory guidelines referring to justice, fairness, or other open norms can be
added. These have advantages in the legislature, though they may give the illusion
rather than the substance of certainty and predictability and may in practice be of
little use to the judges and the parties or their advisers.
The third factor that gave impetus to judicial discretion is the increased influence
of English law bringing with it remedy-based legislation; a tendency to think in
terms of remedies instead of rights; and a hankering after “equitable” discretions.
200
201
202
203
204
205
Smith v. Smith L.R. 20 Eq. 500 at p. 505.
Greenwood v. Hornsey, L.R. 33 Ch. Div 471.
In re Devji Valada Bhavani ILR 18 Bom 581.
Justice Maclachlin, “Fairness and the Common Law: using equity to achieve justice”, in C
Saunders (ed), Courts of Final Jurisdiction: the Mason Court in Australia (1996) 137.
Lord Goff of Chieveley, “The search for principle” (1983) 49 Proceedings of the British
Academy 169, reprinted in W Swadling and G Jones (eds), The Search for Principle: Essays in
Honour of Lord Goff of Chieveley (1999) Appendix 313.
P D Finn, “Equitable doctrine and discretion in remedies”, in W Cornish et al (eds),
Restitution: Past, Present and Future; Essays in Honour of Gareth Jones (1998), 251 at 260.
340
The fourth cause of leaning in favour of judicial discretion is that framing of rules
are being perceived to be failing to produce desired results. Some of the most
important examples are the rules on the consequences of divorce; the principle of
freedom of contract when applied to consumers or to other weak or vulnerable
persons; and the consequences of illegality in the law of property and obligations.
Increasingly legislation in private law seeks to protect persons perceived to be
vulnerable and since judicial discretion produces morally sensitive decisions it is
often a useful technique for that purpose. The classical contract theory abjured
judicial discretion and emphasised instead the values of certainty and predictability
so as to enable contracting parties to rely on the binding effects of contracts.206 The
courts were reluctant to re-make contracts, considered that public policy required
their strict enforcement, and affirmed contracting parties' autonomy, thereby
marginalizing such notions as inequality of exchange, contractual unfairness and
good faith. In England Professor Treitel argued that the trend from doctrine to
judicial discretion raised special problems in contract law.207 Since contract law is
pre-eminently concerned with planned relationships, it must provide a legal
framework within which planning can take place. For effective planning “the high
degree of legal certainty which contract doctrine is intended to create is essential;
so that the uncertainty resulting from a move to discretion endangers one of the
central purposes of contract law”. Rather than condemning the trend to discretion
outright, however, Treitel argued for keeping it within proper limits.
The fifth ground is the tendency of courts to rise above the strict letter of the law
and to endeavour to administer substantial justice. The rules and principles of law
sometimes lead to the intuitively “wrong” result in a particular case. That is not
accepted as an inevitable consequence of rule-based adjudication. Increasingly,
judges avoid such “wrong” results, especially in “hard” cases, by modifying or
ignoring the rules, or appealing to policy dressed up as a higher “principle”of
distributive justice, proportionality, fairness, or practical justice.
The last reason for stimulating the regime of discretion is the absence of a practical
alternative to it. As part of the most important change in the modern law, namely
that from form to substance, it is likely to be, and ought to be, irreversible in many
respects. The moral justification for discretion in decision-making has an attraction
206
207
W W McBryde, The Law of Contract in Scotland, 2nd edn (2001).
G H Treitel, Doctrine and Discretion in the Law of Contract (1981).
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of which there is no substitute.
5.15 EPILOGUE
The concept of judicial discretion is pervasive and variable, with trappings of both
power and responsibility. In every adjudication, the judge finds himself
considering and deliberating about choices presented and their implications.
It is through judicial discretion that equitable considerations enter the domain of
administration of injunctions. It surfaces in the form of conditional orders, which
empower courts to impose conditions aimed at furthering the ends of justice, for
making the main relief wholesome, and for strengthening the efficiency of the
injunction issued. The power to issue such orders stems from spectrum containing
the power to grant and deny relief.
By virtue of the exercise of discretion, it is open to courts to refuse injunction even
though the right has been found to be existing in favour of the plaintiff. Certain
discretionary grounds for refusal, have been statutorily recognized by Section 41
of the Specific Relief Act, 1963, while many remain uncodified, which have been
explained in Chapter 4 (Equitable Maxims).
Discretion of Courts is often made to appear as unnecessary and capricious and
attempts have been made to limit it. Discretion is criticized as amounting to
legislation by courts. However, on the basis of above research, it is concluded that
such apprehensions are misplaced. Discretion does not mean absence of certainty
or uniformity. Discretion is guided by well-established principles laid down by
courts and can therefore not be said to unfettered. In addition, discretion enables
the court to individualize its approach with flexibility to cases as per their peculiar
needs. It helps judges mould relief. Also, since social events may give rise to
myriad, inconceivable and unprecedented problems and disputes, it is not only
inevitable but also advisable that the power of courts remains flexible to adjust to
each set of facts for the ends of justice. It is necessary for Courts to approach the
modern problem with some amount of flexibility as is being faced in the modern
business trend. Courts can no longer remain content with the disposal of the case
and adjudicating the dispute. Whether that adjudication in fact rendered substantial
justice is also within the purview of the judge. Thus application of laws cannot
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remain mechanical and must give way to pragmatism. The dynamic approach of
the courts is embraced by global change of outlook in trade and commerce. Such is
the extent of faith reposed in the discretion of courts, that legislature itself, through
many laws, has left certain matters to the discretion of courts. This enables fair
application of the law to unforeseen circumstances, and avoids unjust results which
are likely from apathetic invocation of the law.
The legal system of India is replete with laws. There are regulations and guidelines
to inform every activity. While the guideline regime continues to disfavour
discretion and favour uniformity by encouraging conformity, both discretion and
uniformity are valuable and even necessary parts of a rational system. The best
outcome would be to create a equity system that honours both discretion and
uniformity, since both are positive attributes.
In emphasizing the above, one must be conscious that laws cannot properly be
implemented without seeing the effect that they have on the lives of the people.
Application of sterile doctrines and pedantic approach by courts is bound to result
in injustice. Legal abstractions and fictions which grew and developed in a land
different in socio-economic milieus cannot be applied with indifference of courts.
I.P. Massey, in his article titled Men as Human Beings and not Abstract Symbols:
Need for a Fresh Jurisprudential Approach, (1978) 2 SCC (Jour) 6 noted that a
jurisprudential dilettantism may be a fine art but without any relevance to the
needs and emotions of the society, it becomes jejune jurisprudence. Litigation
therefore should not be considered a battle to be won by either party. Disputes
must be resolved by understanding practical problems and not by mere invocation
of doctrinal absolutes away from societal realities. The overemphasis on technical
procedures has the potential to destroy the dynamism of our judicial process. I. P.
Massey has illustrated this by referring to legal debates on whether grain sold by a
businessman was 'insect infested' or 'insect damaged'. Such hypertechnical
approach ignores the fact that in both cases the grain affected the health of the
consumer which the law purports to protect. A similar example has been cited in
the argument over whether a tea stall owner was selling “adulterated sugar” or “tea
in which adulterated sugar was used”. Such a jurisprudence is sterile since it
ignores the primary question of public health. Highly legalistic juristic techniques
must give way to simplification of the law.
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The laws are framed for the ordinary man with no specialized legal education.
However the technicalities of interpretation make the laws so complex, that they
go beyond the comprehension of the common man. Framers of the law try to make
the law as comprehensive as possible to cover every possible situation and to
curtail judicial discretion. The result is that the very persons for whose benefit the
law is framed are unable to understand it and therefore fail to comply with it. The
remedy becomes worse than the disease. It needs to be realized that some element
of discretion is inevitable and the vast sea of human conduct cannot be contained
and reduced to a few pages of the statute book. Laws must leave sufficient margin
for discretion of courts for development of a meaningful jurisprudence in which
'man' is treated as human being and not abstract symbol. The discretion in the grant
of injunctions is driven by equity. It imbues the application of law with humane
considerations of fairness and morality. It is this discretion that gives life to the
dead letter of the law. On the scope of exercising discretion, it would be apt to
refer to the statement of Justice Thomas of the New Zealand Court of Appeal in
the article An endorsement of a more flexible law of civil remedies” (1999) 7
Waikato Law Review 23, who said:
“Having found the defendant in breach of a common law or equitable obligation,
the judge should be able to select the most appropriate remedy to redress that
breach. With liability out of the way, the judge is envisaged, partly obscured by
the bench, humped over a large hamper-like basket busily fossicking around for a
likely remedy. So once the plaintiff establishes the cause of action, the court may
in its discretion select the most appropriate remedy from “a basket of remedies”.”
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