Sections 39-40 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 39 allows a court, to prevent the breach of an obligation, to grant an injunction that also compels performance of certain acts, where the court is capable of enforcing them. Section 40 allows the plaintiff in a suit for a perpetual or mandatory injunction to claim damages in addition to, or in substitution for, the injunction, requires the claim to be made in the plaint, and bars a later suit for damages if the suit is dismissed.
This article follows the consolidated text of the Act consulted (amendments shown up to Act 18 of 2018). Later amendments should be checked before you rely on any provision.
Section 39: when it is necessary to compel performance of certain acts which the court is capable of enforcing in order to prevent the breach of an obligation, the court may in its discretion grant an injunction to prevent the breach and also compel the acts. Section 40: the plaintiff in a suit under section 38 or section 39 may claim damages in addition to, or in substitution for, the injunction; damages need to be claimed in the plaint (amendment allowed at any stage on just terms); and dismissal of the suit bars a later suit for damages for that breach.
Section 39: mandatory injunctions
"When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
A prohibitory injunction tells a person to stop doing something. A mandatory injunction, in addition, tells him to do something. The section sets four conditions:
- There is an obligation, and the aim is to prevent its breach.
- It is necessary to compel performance of certain acts to prevent that breach.
- The acts are ones the court is capable of enforcing.
- The court acts in its discretion.
The injunction does two things: it prevents the breach complained of, "and also" compels the requisite acts. An invented example: a builder, Orion Constructions, has an obligation to leave a common passage open, and has built a structure across it. To prevent the continuing breach it may be necessary not only to restrain further building but to require the removal of the structure, a thing the court can enforce. A mandatory injunction under section 39 is the kind of order the section describes.
The test of what the court is "capable of enforcing" ties in with the idea in section 14(b) and (c) that some contracts cannot be specifically enforced because the court cannot supervise a continuous duty or enforce personal terms; see our post on section 14. The conditions under which perpetual injunctions are granted are in section 38, and the general frame is in sections 36-37.
If you need an order that compels something to be undone or done, and not only that something be stopped, you can discuss the suit with our commercial suit filing team.
Section 40(1): damages with or in place of an injunction
"The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages."
Note that the words "either in addition to, or in substitution for" are used here, in contrast to section 21(1), where the 2018 Act left only "in addition to". The text consulted shows no 2018 change in section 40. The plaintiff may claim damages, and the court "may, if it thinks fit" award them. It is discretionary. The heading speaks of damages "in lieu of, or in addition to, injunction".
Section 40(2) and its proviso: claim in the plaint
"No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint". The proviso: "where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim."
The same pattern appears in sections 21(5), 22(2), 26(4) and elsewhere in the Act: claim it in the plaint, but amendment is allowed at any stage on just terms. See section 21 and our guide to the structure of a plaint.
Section 40(3): dismissal bars a later suit for damages
"The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach."
If the suit for an injunction is dismissed, the plaintiff cannot afterwards sue for damages for that breach. The text of sub-section (3) does not distinguish between kinds of dismissal. Compare section 24, which bars a later suit for compensation after dismissal of a suit for specific performance; see sections 24-25. For general remedies in contract and tort, see our post on breach of contract remedies and damages.
| Provision | Rule | Key words |
|---|---|---|
| 39 | Mandatory injunction | Necessary to compel certain acts; court capable of enforcing; discretion; also prevents the breach |
| 40(1) | Damages with or instead of injunction | Suit under section 38 or 39; "either in addition to, or in substitution for"; court may if it thinks fit |
| 40(2) and proviso | Claim in the plaint | Amendment allowed at any stage on just terms |
| 40(3) | Dismissal | Bars right to sue for damages for such breach |
Practical points
When you ask for an injunction, ask for damages in the same plaint, even in the alternative, because section 40(3) closes the door on a later suit for damages if the suit is dismissed. Think about whether the order you want can be enforced by the court: describe the acts precisely. Keep evidence of the continuing breach and its effect. The Act prints no period in these sections; for the time to sue for an injunction-related tort, see the Limitation Act article on torts with a three-year period, including trespass, infringement and wrongful injunction, and for the enforcement of a mandatory injunction or the execution of a decree see the article on execution of decrees. Check the current law.
The cases in which an injunction is refused are in section 41.
Need help with an injunction suit that includes damages?
The prayers in the plaint decide what you can obtain. You can ask our commercial suit filing team to look at the facts, frame the injunction and the claim for damages together, and file within the right time.
Key takeaways
- Section 39 allows an injunction that also compels performance of acts the court is capable of enforcing, where necessary to prevent the breach of an obligation.
- Section 40(1) lets the plaintiff claim damages in addition to, or in substitution for, a perpetual or mandatory injunction.
- Damages must be claimed in the plaint, but amendment is allowed at any stage on just terms.
- Dismissal of the suit bars a later suit for damages for the breach.
Read next
- Section 41 of the Specific Relief Act, 1963: injunction, when refused
- Section 38 of the Specific Relief Act, 1963: perpetual injunction, when granted
- Section 42 of the Specific Relief Act, 1963: injunction to perform a negative agreement
Disclaimer: Based on a consolidated text of the Specific Relief Act, 1963 showing amendments up to the Specific Relief (Amendment) Act, 2018 (in force from 1 October 2018), as consulted on 2 October 2026. Later amendments, notifications under the Act and the law of limitation should be checked. This article is general information, not legal advice; check the official text before acting.