AS temporary mandatory injunction as was held by me in Baldev Raj. V. Savitri Bai, 1981 Rajdhani LR 367 : AIR 1982 NOC 49, can be issued only in case of extreme hardship and compelling circumstances and mostly in those cases when status quo existing on the date of the institution of the suit is to be restored."
The above observations relate only to the proper exercise of jurisdiction and not to its existence.
Now about exercise of the jurisdiction. There are two essential pre-requisites. First is that such power is not to be exercised unless the Court feels a high degree of assurance that at the trial a similar injunction would in all probabilities be granted and secondly, irreparable injury will be caused if thing complained of is allowed to continue until the final decisions.
Bombay High Court
Baban Narayan Landge vs Mahadu Bhikaji Tonchar And Ors. on 30 September, 1988
Equivalent citations: AIR 1989 Bom 247, 1989 (1) BomCR 669
Bench: V Mohta
1. Has a Civil Court jurisdiction to issue at an interlocutory stage a mandatory injunction so as to restore the statue quo anterior to the date of institution of a suit, is a point that falls for determination in his civil revision application.
2. In my view, answer to this question has to be recorded in the affirmative. Here are my reasons : The subject of temporary injunction is mainly covered by O. 39, Rr. 1 and 2, C.P.C In cases not covered by those provisions, an appropriate temporary injunction can be granted also in exercise of inherent power of a Court under S. 151, C.P.C. After all O. 39, Rr. 1 and 2 are not exhaustive of the circumstances under which interim injunction can be granted. The controversy on that aspect of the matter is set at rest by a majority decision of the Supreme Court in the leading case of Manoharlal v. Seth Hiralal . But that apart the language employed in those two Rules is clearly wide enough to include an order in the form of a mandatory injunction and admits of no exception with reference to a point of time to which it can be made. Injunctions are a form of equitable relief and they have to be adjusted or moulded in aid of equiry and justice to the facts and circumstances of each particular case. Jurisdiction is thus undoubted even under S.39, Rr. 1 and 2. Even If it cannot be granted under the said Rules, S. 151, is the source of such jurisdiction. I see no reason to lay down an absolute proposition and forge unnecessary and unjustified fetters on the power of the equiry Courts to grant appropriate relief even in a well deserving case and reduce its position only to a willing but helpless spectator - a situation not warranted by our equiry jurisprudence.
3. Undoubtedly, power to issue mandatory injunction at an interlocutory stage is not to be exercised lightly or commonly. Ordering maintenance of statues quo as on the date of the suit as an interim measure is rate and rarer still is the order of maintenance of status quo as on the date anterior to the institution of suit. But existence of jurisdiction and its proper exercise are two distinct topics.
4. Precedents where such injunctions are granted are not many but they do exist. In the case of Goverdhan Singh v. Mulkh Raj AIR 1973 J & K 63, the power of the Civil Court to grant interim mandatory injunction ordering the defendant-landlord to reconstruct the demolished well and to make the premises habitable was recognised. In the case of Ganpathi Reddly v. Duvvuri Chinnapa Reddy . (1977) 1 Andh Wr (HC) 62 power to issue mandatory temporary injunction ordering reopening of a sluice through which bath water passed in the lane which was closed three months prior to the date of the suit was recognized. It is observed.
"The main grievance of the learned Advocate for the petitioners was that a mandatory injunction cannot be granted so as to restore the status quo prior to the institution of the suit, but there is no such limitation on the Court's power to grant a mandatory injunction of that nature in as appropriate case, particularly when the states quo ante has been altered shortly prior to the suit and that Act itself was the direct and proximate cause as a result of which the suit came to filed".
5. My attention was drawn by the learned counsel for the application to the case of Rasul Karim v. Pirbhai Amirbhai AIR 1914 Bom 42 in which is has been held that power to issue mandatory injunction is not within the ambit of O. 39, R.1. in that case even the power of a mofussil Court in India to issue such mandatory injunction was doubted. But that is no more a good law. Very soon the said view met with disapproval in the case of Champsey Bhimji & Co. v. Jamna Flour Mills Co. Ltd. AIR 1914 Bom 195. The case of Malla Suranna v. Kalla Somulu, on which reliance has been placed also does not seem to lay down any proposition leading to absence of jurisdiction. It is merely observed (Para 9):
"It is no doubt plain that such a mandatory injunction can be granted to restore the status quo existing on the date of the suit."
So is the position about the case of M/s. Magnum Films v. Golcha Properties Pvt. Ltd. AIR 1983 Delhi 392 which says (at Pp. 394-95):
"AS temporary mandatory injunction as was held by me in Baldev Raj. V. Savitri Bai, 1981 Rajdhani LR 367 : AIR 1982 NOC 49, can be issued only in case of extreme hardship and compelling circumstances and mostly in those cases when status quo existing on the date of the institution of the suit is to be restored."
The above observations relate only to the proper exercise of jurisdiction and not to its existence.
6. Now about exercise of the jurisdiction. There are two essential pre-requisites. First is that such power is not to be exercised unless the Court feels a high degree of assurance that at the trial a similar injunction would in all probabilities be granted and secondly, irreparable injury will be caused if thing complained of is allowed to continue until the final decisions.
7. Testing the impugned order on the touch stones of the above tests, I do not see in revisional jurisdiction any case for interference with the said order passed by the learned District Judge. Akola, granting temporary mandatory injunction against the applicant-original defendant I Baban Landge restraining him from obstructing in any manner the non-applicant/original plaintiff Mahadu Tanchar from drawing water with any device from the disputed well in order to protect the standing crop of sugarcane.
8. The substance of the case of the plaintiff is: There has been a written agreement dt. 10th April 1973 defendant No.1 recognizing plaintiff's share in the clectric pump on the well and so also the well water. Well water was used by both for cultivation of their respective crops for a period of over 9 years when the defendant took away the electric pump set fitted on a foundation in the well. The plaintiff continued irrigation and on 20th Nov. 1984 installed his own pump set on a different foundation. Electric line connection granted by the Maharashtra State Electrcity Board to the plaintiff was cut off at the instance of defendant I on 1st Feb. 1985. On 16th Feb. 1985, oil engine was installed by the plaintiff. Subssequently, the Electricity Board passed an order graning reconnection. On 18th Feb. 1985 oil emgine was removed. On 6th Mar. 1985 a suit was filed for permanent injunction against the defendant No. 1 as well as the officers of the Electricity Board and some other officers, along with an application for temporary mandatory injunction for restoring the electric supply by the offices of the Electricity Board and restraining the defendant No. 1 from obstructing the use of well water. Ad interim ex parts order was granted on that very date. Thereafter, electric supply actually restarted and the plaintiff continued to draw as before water from the well by means of the pump. On 9th April 1985, the ex parte order was vacated. The plaintiff filed an appeal against the order. Electricity supply was restored during the pendency of the appeal. The said appeal was allowed and since only defendant 1 chose to dispute the right, mandatory injunction was issued only against defendant 1. The Court held that prima facie case existed in favour of the plaintiff and balance of convenience was also in his favour since other wise the standing crop would be damaged. The operative part of the said impugned order reads thus:
"It is hereby ordered that defendant No.1 or any one on his behalf shall not in any manner obstruct the plaintiff while drawing water with his electricity pump or any other device from the well situated either in survey No. 132/2A or Survey No. 132/s.i.e. the well in dispute."
9. The well in question appears to be situated on the border of filed Survey No. 132/2A belonging to the plaintiff and adjoining Survey No. 132/3 belonging to defendant 1. There seems to be some confusion and/or a dispute about its exact situation. Since more than one well are in existence in original filed Survey No. 132 (which is bus-divided into various portions, such as field Survey No. 132/2A. 132/2H, 132/3 etc), a Commissioner was appointed. The Commissioner reported after sport inspection that there were in all three wells in filed Survey No. 132, one out of which was under construction, one is situated in field Survey No. 132/2H and one in is near the border line of filed Survey No. 132/2A and field Survey No. 132/3 in which well existed two foundations for pumps. The learned District Judge held that even though the exact situation of the well was in dispute its identiry was established by process of elimination. One well in field Survey No. 132/2H was under construction, the order was in field Survey No. 132/2 and did not have even one foundation for pump. It was held that it was that border line well which was referred to in the agreement of 1973. Its situation on the border line and existence of foundations for pumping set - one old and one new - weighed with the District Judge for prima facie conclusion. That sugarcane crop was standing and was cultivated by well water was undisputed.
10. My attention was drawn to the so called contradiction about the exact location of the well and also to the fact that the plaintiff had share even in the old well situated in field Survey No. 132/2 and it is contended that the well referred to in the agreement could be that well. It is not possible to accept that contention. The could not be an agreement between the plaintiff and defendant No. 1's father about that well since it is nobody's case that defendant No.1 has any right whatsoever in the said well. It is pertinent to notice that defendant No.1 ahs feigned total ignorance about the 1973 agreement. It may be mentioned that in a written statemt field by the defendant No.1 in another earlier civil suit, (being Civil Suit No. 131 of 1983. In the Court od Civil Judge. Senior Division, Washim) he admitted that the contended that defendant No.1 had filed an application for amendment of that written statement, but as rightly observed in the impugned order, no such material was placed on record. Even if any amendment application was filed, that factor by itself was inconsequential for judging a prima facie case.
11. Plaintiff's crop of sugarcane was standing, it was not the case of defendant 1 that in case plaintiff uses his share of well water, defendant No.1 would suffer any irreparable loss. The defendant I's right to draw the well water is not, in any way, affected by the interim order. The contention that damage to the crop could be ascertained in terms of money and therefore, the balance of convenience was not in favour of the plaintiff is rightly not accepted. That would also mean driving the plaintiff to another set of avoidable litigation.
12. There is thus neither any error of law nor of jurisdiction in the impugned order, as a result this application is dismissed and the Rule is discharged. No order as to court. needless to mention that the interim order stands automatically vacated.
13. Application dismissed.