Perpetual Injunction Under Section 38 of the Specific Relief Act, 1963: Concept, Scope, and Judicial Application

Perpetual Injunction Under Section 38 of the Specific Relief Act, 1963: Concept, Scope, and Judicial Application

A. The Specific Relief Act, 1963

Section 38. 

Perpetual injunction when granted.—(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, 

the court may grant a perpetual injunction in the following cases, namely:—

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, 

by the invasion;

(c) where the invasion is such that compensation in money would not afford adequate relief;

B. Introduction

In civil jurisprudence, the remedy of injunction plays a crucial role in protecting legal and equitable rights. Among various forms of injunctions, the perpetual (permanent) injunction stands as the most decisive preventive relief. Section 38 of the Specific Relief Act, 1963 codifies the circumstances under which a court may permanently restrain a party from infringing another’s legal rights.

A perpetual injunction is not merely interim protection, it is a final and binding restraint, granted after full adjudication of the dispute. Through this blog I provide an in-depth legal analysis of Section 38, its statutory interpretation, judicial principles, and practical applicability.

C. Statutory Framework: Section 38 Explained

a. Section 38(1): Injunction to Prevent Breach of Obligation:

“A perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.”

This provision lays the foundation of perpetual injunction. The essential elements are:

1. Existence of a legal obligation in favour of the plaintiff,

2. Actual or threatened breach by the defendant,

3. The obligation may arise expressly (by statute or contract) or impliedly (by conduct, equity, or relationship),

Thus, the court’s jurisdiction depends not merely on ownership or possession, but on the existence of enforceable legal duty.

b. Section 38(2): Injunction in Contractual Obligations

“When such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.”

Chapter II of the Act governs specific performance of contracts. Therefore, when an injunction is sought on a contractual foundation, the court examines:

i. Validity of the contract,

ii. Enforceability,

iii. Mutuality,

iv. Fairness and readiness & willingness of the plaintiff.

This ensures that injunction is not used to indirectly enforce an unenforceable contract.

c. Section 38(3): Property Rights and Invasion Thereof

This is the most frequently invoked clause in property disputes. The court may grant perpetual injunction where:

(a) Defendant is Trustee of Property

If the defendant holds property in a fiduciary capacity, any breach justifies permanent restraint. This applies to:

i. Trust property,

ii. Family settlement trustees,

iii. Developers holding land under development agreements.

(b) No Standard for Ascertaining Actual Damage

Where damage is:

i. Continuous,

ii. Incapable of precise monetary calculation

Examples:

Obstruction of right of way,

Light and air,

Encroachment on ancestral land.

(c) Monetary Compensation is Inadequate

This applies when:

i. Property has unique value

ii. Emotional, cultural, or constitutional rights are involved

iii. Repeated interference is anticipated

Courts consistently hold that immovable property is inherently unsuitable for mere monetary compensation.

D. Essential Conditions for Grant of Perpetual Injunction

Courts generally insist on proving:

1. Clear legal right of the plaintiff,

2. Actual or threatened infringement,

3. Absence of adequate alternate remedy,

4. Balance of convenience in favour of plaintiff,

5. Conduct of the plaintiff must be fair and clean (Doctrine of Clean Hands).

E. Perpetual vs Temporary Injunction

Temporary Injunction Perpetual Injunction

Interim relief Final relief

Granted under CPC Order 39 Granted under SRA Section 38

Operates during pendency of suit Operates permanently

Based on prima facie case Based on full evidence

F. Important Judicial Interpretations

1. Kashi Math Samsthan v. Shrimad Sudhindra Thirtha Swamy (2010)

The Supreme Court held that perpetual injunction requires proof of an enforceable legal right, not merely possessory advantage.

2. Anathula Sudhakar v. P. Buchi Reddy (2008)

Laid down the three-fold classification of suits for injunction:

i. Pure injunction,

ii. Declaration plus injunction,

iii. Possession plus injunction.

This judgment is the backbone for property injunction litigation.

3. Doraiswamy v. B. K. Dhanraj (Madras HC)

Held that when title is clouded, injunction alone is not sufficient; declaration must be sought.

G. When Perpetual Injunction Is Refused

Courts refuse injunction when:

i. Plaintiff lacks clear title,

ii. Dispute requires declaration first,

iii. Plaintiff suppresses material facts,

iv. Equally efficacious remedy exists (Section 41)

v. Injunction would restrain lawful public duty.

H. Practical Applications in Indian Courts

Perpetual injunction is routinely granted in:

i. Illegal construction cases,

ii. Encroachment disputes,

iii. Right of way obstruction,

iv. Land grabbing matters,

v. Developer-landowner disputes,

vi. Property partition matters,

vi. Family settlement enforcement.

I. Conclusion

Section 38 of the Specific Relief Act, 1963 serves as a powerful shield against civil wrongs involving property and legal obligations. A perpetual injunction is not a routine relief, it is a final declaration of lawful restraint, grounded in equity, justice, and enforceability of rights. The courts consistently balance: Legal certainty, Preventive justice, Protection of proprietary and contractual sanctity. For litigants and practitioners alike, proper pleading, precise relief framing, and documentary clarity remain the key to securing a decree of perpetual injunction.

12:05

18th Margashirsh 14234 

9th December 2025

Authored by: RG

+919823044282