Leading judgment of Supreme court on interim mandatory injunction and moulding of relief

 That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage. There is marked distinction

between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted.This Court in Dorab Cawasji Warden Versus Coomi Sorab Warden and Others,2 has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paragraphs 16 & 17, after analysing the legal precedents on the point as noticed in paragraphs 11-15, the Court went on to observe as follows:

“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

2 (1990) 2 SCC 117

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”

(emphasis supplied)

25. The Court, amongst others, rested its exposition on the dictum in Halsbury‟s Laws of England, 4th edition, Volume 24, paragraph 948, which reads thus:

“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.”

26. The principle expounded in this decision has been consistently followed by this Court. It is well established that an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. (See Metro Marins and Another Versus Bonus Watch Co. (P) Ltd. and Others3, Kishore Kumar Khaitan and Another Versus Praveen Kumar Singh4 and Purshottam Vishandas Raheja and Another Versus Shrichand Vishandas Raheja (Dead) through LRS. and Others5)

27. In the factual scenario in which mandatory order has been passed against the appellant, in our opinion, is in excess of jurisdiction. Such a drastic order at an interlocutory stage ought to be eschewed. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7079 OF 2018

(Arising out of SLP (Civil) No.18465/2018)

Samir Narain Bhojwani Vs M/s. Aurora Properties and Investments

and Anr.

Dated:August 21, 2018.

A.M. Khanwilkar J,
Citation:  2018 (5) Bom.C.R. 731 : 2018 (5) RAJ 243 : 2018 (10) Scale 33 

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When court can entertain execution application for executing interim mandatory Injunction?

Equivalent Citation: ILR 2010 KARNATAKA 923, 2009(5)KCCR3446

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

C.R.P. No. 237/2009

Decided On: 06.11.2009

 Shri Somashekar D. Patil S/o Mr. D.S. Patil
Vs.
Shri D.S. Patil S/o Sri Shivanagouda Patil and Shri Manjunath D. Patil S/o D.S. Patil

Hon'ble Judges/Coram:
A.S. Bopanna, J.

Code of Civil Procedure, 1908 - Order 20, Rule 18--Final decree proceedings--Suit for partition filed and preliminary decree obtained--Interim mandatory injunction sought by plaintiff to remove an unauthorized person--Allowed--Execution filed--Petition for obstruction file--Dismissed--In the meanwhile preliminary decree passed--The execution was allowed against the Civil Revision Petition filed--Whether Execution Court has Jurisdiction to entertain the Court--The order of interim mandatory injunction gets merged with the decree.

Held: Therefore, what can be deduced is that in all suits of the nature where passing of only one decree is provided under the Code, the suit would come to an end on the passing of the decree. In that circumstance, all interlocutory orders passed during the pendency of the suit would merge with the decree and would not have independent existence so as to seek for execution since the decree in itself would become executable. However, the suits in which the passing of two decrees namely, preliminarily and final is provided for under the Code, even if the preliminary decree is passed, in law, the suit does not conclude until the final decree which is executable is passed, though the right of the party gets decided or determined by the preliminary decree. One such exception would be if interlocutory order has a bearing on the passing of the final decree in terms of Order 20, Rule 18(2) and Order 26, Rule 14 of the Code. In such event, it would remain in force even after the passing of the preliminary decree and until the suit concludes by way of final decree.

As such, the interlocutory order in the instant case cannot be held to have merged in the preliminary decree and the executing Court would be justified in proceeding with the matter. The impugned order therefore does not call for interference. i) The Civil Revision Petition is dismissed. ii) The petitioner is however granted time till 15.11.2009 to voluntarily vacate and report to the executing Court failing which the delivery warrant shall be executed.

Civil Revision Petition is dismissed.

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Whether order of interim mandatory injunction can be enforced after disposal of suit?

Civil - Warrant of Possession - Withdrawal of suit - Sections 36, 151, Order 21 Rule 32(1) and Order 39 Rule 2(a) of Code of Civil Procedure, 1908 (CPC) - Present revision is directed against order whereby Executing Court issued warrant of possession against present applicants (original Plaintiffs) - Whether ad interim mandatory injunction granted by trial Court allowing in favour of original Defendant No. 3 during pendency of Regular Suit would survive or can be enforced by filing execution proceedings under Section 36 of CPC after original suit itself stands disposed of as withdrawn for want of prosecution - Held no, Order 39, Rules 1 and 2 of CPC deals with powers of Court to grant temporary injunction - Injunction granted by Court is temporary in nature and can operate until disposal of suit or until further orders - Order passed under these provisions cannot be said to have independent existence de hors of suit and can survive or can be continued only during pendency of suit unless same is modified or altered either by same Court or by higher Court - In present case application though moved by non-applicants under Order 39, Rules 1 and 2 read with Section 151 of CPC, trial Court exercised power under Order 39, Rules 1 and 2 of CPC only while passing order of relevant date whereby Defendant No. 3 was directed to be put in possession of shop in question and applicants were temporarily restrained from interfering with his possession - — Provisions of Section 36 of CPC relate to execution of decree and are also deemed to apply to execution of orders - However, considering controversy in case, order of relevant date being interlocutory order of temporary nature had come to end or merged in order by which suit was disposed of - Once having held that said order has come to end, it loses its force and effectiveness and same is not executable via Section 36 of CPC since same is not in existence - In view of facts and circumstances of case, provisions of Section 36 of CPC not attracted and, therefore, application which was filed by non-applicants for issuance of warrant of possession under Section 36 of CPC was not maintainable - Similarly contingencies contemplated under Order 21, Rule 32(1) of CPC were entirely different and operate in different area altogether and cannot be equated with issue in question and, therefore, same also could not be said to be attracted in present case - Consequently, impugned order cannot be sustained in law, same is quashed and set aside - Revision allowed.
 Similarly, it is also not necessary that suit should be disposed of only on merits in order to bring an end to interim order. What is contemplated in law is that such interim order would continue to operate till suit is disposed of one way or the other and would come to an end on the day suit is disposed of. Whether suit is disposed of for want of prosecution or on merits is not the criteria to decide existence of interim orders. These orders by their very nature are temporary and remain in force only during the pendency of the suit and come to an end when the suit is disposed of one way or the other.

Bombay High Court

Ramesh Ramaji Akre And Ors. vs Smt. Mangalabai Wd/O Pralhad And ... on 8 April, 2002

Equivalent citations: 2002 (3) MhLj 579

D.D. Sinha, J.

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