Supreme court: Limitation To Execute Mandatory Injunction decree is 3 Years From Decree Date If No Performance Date Fixed

An Execution Application was filed on 12.08.2010 seeking implementation of mandatory injunction part of the decree. The Execution Court dismissed said Application as barred by limitation by relying on Article 135 of the Schedule to the Limitation Act, 1963 which provides limitation for enforcement of a decree granting a mandatory injunction. The limitation period provided therein is three years commencing from the date of the decree or where a date is fixed for performance, such date.

{Para 4}

5. As the decree passed by the First Appellate Court did not specify any date for performance, the limitation period would commence from the date of the decree, as was held by the Execution Court.

IN THE SUPREME COURT OF INDIA

Petition(s) for Special Leave to Appeal C No. 4284/2023

Date of Order: 17.02.2026

Babu Singh Vs. Jalandhar Improvement Trust and Ors.

Hon'ble Judges/Coram:

Manoj Misra and Manmohan, JJ.

Citation: MANU/SCOR/8600/2026.

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Understanding Mandatory Injunctions in India: Legal Parameters and Judicial Approach

 Introduction

Mandatory injunctions are a powerful remedy in Indian law, compelling a party to perform a specific act, often to restore a situation to its original state before a wrongful action occurred. Governed primarily by Section 39 of the Specific Relief Act, 1963. Mandatory injunctions are distinct from prohibitory injunctions, which merely restrain a party from doing something. This article explores the key parameters and judicial principles guiding the grant of mandatory injunctions in India.

What is a Mandatory Injunction?

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Whether high court can direct husband to pay interest towards the price of ornament to wife if he is ready to return ornament as per order of family court?

The Family Court in its judgment and order dated 9.10.1995 did not grant any interest on the said sum of Rs. 3,25,655/-. An alternative, decree was only passed to the effect that the Respondent would be entitled to a sum of Rs. 3,25,655/- in the event, the ornaments are not returned to the Respondent by the Appellant herein. {Para 23}

24. A decree in the nature of mandatory injunction directing a party to the suit to deliver certain movable property in favour of the Appellant cannot be equated with a decree for payment of a specified sum.

26. The question of the Appellant's paying the price of the ornaments' value at Rs. 3,25,655/- together with interest @ 9% p.a. from the date of the decree of the Family Court dated 9.10.1995 could have been the subject- matter of the Execution Petition only if the Appellant did not return the same to the Respondent within a reasonable time. The High Court did not interfere with the judgment of the Family Court to the effect that the Respondent was entitled to get back all the ornaments except the fact that in case the said ornaments or articles are not returned by him, he will have to pay interest on the price thereof. Thus, the question of payment of interest would have arisen only in the event of the Appellant's failure to return the ornaments to the Respondent.

29. Thus, the direction upon the Appellant to return the ornaments is not concomitant with the order to pay the price thereof. The second direction was, thus, a conditional one which comes into operation only upon non- fulfillment of the first direction. Thus, by reason of the first direction no decree to pay interest on a specified sum was passed. In that view of the matter, if no occasion had arisen for paying the aforementioned sum of Rs. 3,25,655/-, the question of paying any interest thereupon would not arise.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1780 of 2005.

Decided On: 16.03.2005

Ramesh Chand Daga  Vs.  Rameshwari Bai

Hon'ble Judges/Coram:

B.P. Singh and S.B. Sinha, JJ.

Author: S.B. Sinha, J.

Citation: MANU/SC/0210/2005

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Whether it is duty of the court to give mandatory injunction in cases of trespass?

  The entire circumstances revealed from the evidence on record unerringly point to the fact that the Appellant had encroached upon land belonging to the Respondent and without bona fides effected constructions which is verandah which is extension of residential building. The object of estoppel, as held in Madanappa's case, would be defeated if the said illegality is recognized and allowance is granted therefor. In the contextual situation, a decision of a learned Single Judge of High Court of Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla Khan (1956) 69 LW (Andhra) 52 extracted in agreement in the decision by the learned Single Judge of High Court of Madras in the decision in Bodi Reddy v. Appu Goundan MANU/TN/0426/1970 : (1971) ILR 2 Madras 155, is worthy to be looked into. In the decision the learned Single Judge of the High Court of Andhra Pradesh after posing a question "has the court an absolute discretion to award damages instead of a mandatory injunction where there is a trespass by the Defendant on the Plaintiff's land?" held thus:

To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the Plaintiff's property and an appropriation of it for the Defendant's use.... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.

To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a Rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the Defendant to remove the encroachment and restore possession of the vacant site to the Plaintiff. Neither serious inconvenience to the Defendant--trespasser nor the absence of serious injury to the Plaintiff is a ground for depriving the latter for his legal right to the property.

As held by the learned Single Judge we are of the considered view that in a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will. In Bodi Reddy's decision (supra) the learned Judge held that in a suit for recovery of possession filed within the period of limitation provided under Limitation Act, the doctrine of laches or acquiescence has no place to defeat the right of the Plaintiff to obtain the relief on his establishing his title.  {Para 20}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023.

Read full Judgment here: Click here

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Whether the court can grant specific performance of contract if plaintiff has prayed for grant of mandatory injunction?

Shri R.R. Deshpande learned Counsel for the respondents submits that prayer itself would show that plaintiff should have prayed for specific performance and when he makes a prayer for mandatory injunction the suit ought to be held to be hit by provisions of Clause (h) of Section 41 of the Specific Relief Act. Section 41(h) reads as follows:

41(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. {Para 7}

8. There cannot be any dispute with the proposition that where equally efficacies relief can be had injunction cannot be granted. The law is well settled that mofussil pleadings are to be interpreted liberally. While doing so mere reading of the prayer clause would not do. The prayer clause will have to be read in the context of the pleadings and then interpreted to hold whether the relief is in fact one for injunction or specific performance. If the plaint is read as a whole it would be very clear that plaintiffs essentially filed suit for conveyance of the plots in favour of the plaintiffs which defendants had agreed to convey. Thus what plaintiffs essentially want is conveyance of plots in their favour. 

9. If the prayer is read in this context it would be clear that plaintiffs demanded the execution of the sale deed in their favour. Even while passing a decree for specific performance the Court would have even otherwise directed execution of the sale deed in favour of the plaintiff. Such a direction even in a suit for specific performance by the Court is nothing less than a mandate. The prayer clause in the instant case at the most could be said to be not very happily worded but the purport of the relief is one to seek specific performance. Simply because the words mandatory injunction are used it is not as such a suit for mandatory injunction but a suit for specific performance. The bar of Clause (h) would not apply in such cases.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 448 of 1996

Decided On: 07.10.2009

Shrikant Gopalkrushna Tare and Ors.  Vs.  Vasant Nagorao Mahalley and Ors.

Hon'ble Judges/Coram:

C.L. Pangarkar, J.

Citation: MANU/MH/1151/2009,2010(1) ALLMR 114

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Can the court refuse to grant a mandatory injunction for removing obstruction placed upon a public street if the plaintiff can use street despite the obstacle?

  The extent of the right of a member of the public to pass and repass over a public street came up for consideration before a Bench of the Andhra Pradesh High Court in M. Butchamma v. Venkateswararao. There, the prayer for mandatory injunction for the removal of obstruction placed upon a public street was rejected by the trial Court and the lower appellate Court, on the ground that notwithstanding obstruction placed by plaintiff the street was wide enough to afford passage to cattle and carts and the plaintiff had not established any special damage entitling her to the relief by way of mandatory injunction. On appeal, Chinnappa Reddy J (as he then was) has observ-2d as follows (Para 5):

"The defendant cannot be heard to say that the obstruction placed by him cannot be removed so long as he has left a passage of sufficient width to enable men, cattle and carts to go. As we have said, the right of the public to pass and repass extends over every inch of the street and the defendant cannot in any manner restrict the right and compel the plaintiff to confine herself to a part of the street of the choice of the defendant." {Para 17}

 IN THE HIGH COURT OF MADRAS

S.A. No. 190 of 2013 and M.P. No. 1 of 2013

Decided On: 25.03.2022

Arulmighu Palapattarai Mariamman Tirukoil  Vs.  Pappayee and Ors.

Hon'ble Judges/Coram:

N. Anand Venkatesh, J.

Citation: MANU/TN/2918/2022.

Read full Judgment here: Click here

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Whether suit for perpetual or mandatory injunction is to be valued as per market value of immovable property involved in it?

 The High Court has not even considered the overall circumstances of the present case where the Plaintiff has valued the reliefs of mandatory and prohibitory injunction at the nominal Rs. 250 but, at the same time, has also valued the suit with reference to the claim of damages at Rs. 1 lakh and had paid the Court fees accordingly. It is apparent on the face of the record that despite unquestionable principle of law that such a suit for mandatory and prohibitory injunction is not required to be valued at the market value of the property, the High Court has relied only upon the market value of the property to hold the valuation of the present suit to be "arbitrary". Such a conclusion of the High Court neither stands in conformity with law nor with the frame and the nature of the present suit. {Para 10}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4577 of 2022 

Decided On: 16.06.2022

 Bharat Bhushan Gupta   Vs.  Pratap Narain Verma and Ors.

Hon'ble Judges/Coram:

Dinesh Maheshwari and Vikram Nath, JJ.

Author: Dinesh Maheshwari, J.

Citation: MANU/SC/0783/2022,2022 ALL SCR 1485

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Can the plaintiff seek a mandatory injunction to remove malba, garbage, etc. thrown on adjacent land as per 41(j) of the Specific relief Act?

  In the present case the plaintiffs are not suing to protect any possession of theirs over the vacant land. They are instead suing for removal of the garbage/debris in the vacant land behind their flat and for injunction for a restraint on the defendants from throwing the garbage/debris. A person certainly has a right to clean space at the entrance or at the back of his house. That apart, given the averments in the plaint and the reliefs sought for, I do not think that it was a case for rejection of plaint.”

6. The burden of Mr. Vikas Tomar’ s song is that the respondents

had no personal interest over the land, on which the malba/garbage etc. was allegedly being deposited as they claimed no right, title or possession in respect thereof. He submits that, in such circumstances, Section 41(j) of the Specific Relief Act operates as an absolute proscription against grant of injunction.

7. I am unable to agree.

8. Section 41(j) of the Specific Relief Act proscribes grant of

injunction “when the plaintiff has no personal interest in the matter”. The word “matter” is of wide and compendious scope, and would include everything, which is subject matter of the suit and grievance expressed therein. B. Ramanath Iyyer’ s Law Laxican defines “matter” as “a fact or facts constituting a whole or a part of a ground of action or defence”. Vishwanathan v. Abdul Wajid AIR 1963 SC 1

9. If the plaintiff is a complete stranger, having no personal

interest with respect to the grievance expressed in the suit, being “the

matter” in the suit, no doubt, Section 41(j) operates as a proscription

against grant of injunction. The words “the matter” cannot, however,

in my view, be conflict with the property forming subject matter of thesuit. The grievance of the plaintiffs, as voiced in the suit, and dehors holds that “the expression “matter” is not equivalent to “subject matter”; it means the right claimed.” The right claimed by the respondents in their suit was, clearly, avoidance of the nuisance that had resulted as a consequence of the alleged dumping, by the appellants, of malba and garbage onthe land adjoining their premises.its merits, was that the respondents had committed an actionable tort which, if proved, could even amount to nuisance.

10. Inasmuch as the plaintiffs were also claiming that they were

enjoying the land in which the malwa/garbage etc. was being allegedly deposited, dehors the issue of the respondents’ right to possession over the land, it cannot be said that they had no personal interest in respect of the matter, i.e. the grievance ventilated in the suit.

11. To my mind, any other interpretation would be unduly

narrowed and not justified by the words used in Section 41(j) of the Specific Relief Act.

12. I am of the view, therefore, that the learned ADJ was correct in his opinion expressed by him, in the passages from the impugned order extracted hereinabove, that the respondents cannot be said to have had no personal interest in the matter, so as to justify summary dismissal of the suit under Order VII Rule 11(a) of the CPC read with Section 41(j)of the Specific Relief Act.

IN THE HIGH COURT OF DELHI AT NEW DELHI

RSA 233/2019 and CM Appl. 50920/2019 (stay)

SANJAY CHUGH & ANR  Vs RAM KISHAN 

CORAM:

HON'BLE MR. JUSTICE C.HARI SHANKAR

Dated: 30.03.2022

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Whether the court must frame an issue and record evidence if the defendant takes plea of Benami joint owner of the property?

Reliance was also placed on behalf of the respondents on the verdict of this Court in Bhavna Khanna Vs. Subir Tara Singh decided on 01.02.2019 in CS (OS) No. 356/2016 with observations in para 23 thereof wherein it was observed to the effect:

"Be that as it may, the Benami Transactions (Prohibition) Act, 1988 which came into force on 5th September, 1988 i.e. much prior to the sale deed dated 16th December 2003, defined a benami transaction as a transaction in which property is transferred to one person for a consideration paid or provided by another persons. Section 3 thereof barred all persons from entering into benami transaction. Section 4 of the Act barred any defence in any suit, claim or action based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person. The claim of the defendant that out of total sale consideration of Rs. 55 Lacs, Rs. 39.5 was contributed by him but the sale deed of the property obtained in the exclusive name of his wife Dr. Rachana Khanna falls within the definition of benami transaction and which transaction was barred on the date of sale deed and the defendant is also barred from defending this suit on the plea of being the benami joint owner of the property. The said Act was, vide amendment of the year 2016, renamed as Prohibition of Benami Property Transactions Act,1988 and through there has been an overhaul of all the provisions of the earlier statute but the effect remains the same. Section 4 bars a defence in respect of any property held benami. The defence of the defendant in the present suit is thus barred by the said law and once the defence is barred, again permitted evidence to be led would be only at the cost of the valuable time of this Court and the Court ultimately after recording of evidence also will be bound to decide in accordance with law. It is for this reason that I say that the defence of the defendant of joint ownership does not raise any material proposition of fact or law for an issue to have been framed thereon."

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

Hon'ble Judges/Coram:

Anu Malhotra, J.

Citation: MANU/DE/1402/2020

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Whether licensor can obtain eviction of licensee by obtaining mandatory injunction without claiming possession?

 As it has been found by the Courts below that the Defendants are only licensees, the legal possession of the house is with the Plaintiff." Defendants have no independent  separate interest in the house. A licensees Defendants have no interest in the building and their possession cannot exclude the rightful possession of the Plaintiff as owners of the property. Merely because other modes of eviction are available to the Plaintiff his remedy by way of mandatory injunction cannot be denied to him. In Prahirondra Nath v. Narendra Nath MANU/WB/0038/1958 : AIR 1958 Cal 179 the Calcutta High Court held that the owner of an immovable property on termination of the licence is entitled to maintain a suit for mandatory injunction against the licensee to vacate the property. The above decision has been relied in Rajappan v. Veeraraghavan Iyer 1969 K.L.T. 811 and Krishna Moorthy Iyer, J. held that when the owner of immovable property terminates a licence he can sue for mandatory injunction directing the licensee to vacate the property without praying for possession since the licensee's possession cannot in the eye of law exclude the owner's possession. As the remedy of mandatory injunction is available to the Plaintiff as against the Defendants who are licensees the challenge against maintainability of the suit fails.

IN THE HIGH COURT OF KERALA

S.A. No. 695 of 1989

Decided On: 23.10.1989

 Ayissa Ummar Vs.  Ami

Hon'ble Judges/Coram:

M.M. Pareed Pillay, J.

Citation: 1990 (1) KLT 98

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Whether suit for mandatory injunction for removal of illegal structure should be dismissed if plaintiff has failed to prove his title?

The first and the foremost fact that is required to be considered is that, the learned trial Court on the basis of evidence before it, had come to the conclusion that the plaintiff had failed to prove that, Saraswatibai left Will dated 17-7-1997 in his favour. Important point to be noted is that, though the trial Court had held that, the suit plot was self acquired property of Maruti and after his death, the plot was exclusively held by Saraswatibai, it was on the basis of challenge to the Will, the burden was on the plaintiff to prove the said Will, in which he had failed. The First Appellate Court also held that, the suit plot was the self acquired property of Maruti and that Saraswatibai had not executed any Will dated 17-7-1997 in favour of plaintiff. In fact when plaintiff had filed the said suit based upon the title which he was claiming through the said Will, and he failed in establishing the said Will i.e. title to the suit plot, then the ultimate result would have been only the dismissal of the suit, not else.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

S.A. No. 717 of 2016

Decided On: 11.06.2019

 Shivram Vs. Prabhakar 

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MHLJ 903

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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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Whether Principle Of Moulding Of Relief Can Be Invoked At Interlocutory Stage?

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)

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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Whether suit for mandatory injunction is maintainable without seeking declaration?

In Harchand Singh Gujjar Singh v. Dalip Singh Pritam Singh, MANU/PH/0066/1965 : AIR 1965 Punjab 468 while considering whether there is a legal necessity for the plaintiff to get a declaration of his right before he can get an injunction, it was held that when there is some legal obstacle which has to be first removed before such relief can be granted, a prayer for a declaration that has the effect of removing that obstacle is necessary. This decision has been approved by the Full Bench of the Delhi High Court in Mahant Purshottam Dass and others (supra) relied upon by the learned counsel for the appellant. Similarly, in D. Ramanath Gupta (supra), it was held that in a suit for injunction based on a prescriptive easementary right, the plaintiff should seek a declaration from the Court that he has so acquired the prescriptive right of easement.

It is thus clear that it was incumbent for the plaintiff to have sought a declaration that the order of sanction dated 4-9-1989 was illegal and thus he was entitled for a mandatory injunction after setting aside the same. In absence of such declaration being sought, the suit for mandatory injunction simpliciter could not have been decreed without setting aside the order of sanction dated 4-9-1989. The trial Court rightly considered this aspect of the matter but the Appellate Court committed an error in holding otherwise. Substantial question of law No. (ii) is answered accordingly.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

S.A. No. 238 of 2000

Decided On: 14.09.2017

 Ratanlal Vs. Shantabai and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2018(3) MHLJ194

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SHORT NOTES ON SPECIFIC RELIEF ACT PART 2

Chapter 3 Rectification of instruments

S 26. When instrument may be rectified:-

Sub S 1. When through fraud or mutual mistake of parties,a contract or other instrument in writing does not express real intention of parties, then-

a) either party or his representative in interest may institute a suit to have instrument rectified.

Sub S 2. Court may direct rectification of instrument so as to express that intention,so far as this can be done without prejudice to rights acquired by third person in good faith and for value.

Sub S 3. A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit,may be specifically enforced.

Sub S 4. No relief is to be granted unless prayed. If not prayed court can allow amendment to incorporate said prayer.

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When counter claim for mandatory injunction will be barred by limitation?

Insofar as the Appellant's case of bar of limitation is concerned, a counter-claim has to be treated as a claim and governed by the rules applicable to the claim and the same operates as a cross-suit. A counter-claim seeking a mandatory injunction on the basis of an agreement will have to be governed by the ordinary rules of limitation and such limitation would be three years from the date of accrual of cause of action. In the present case, the cause of action has accrued to the Defendant, when the parties executed the deed of partition on 13 December 1976. A counter-claim filed after the accrual of cause of action after three years is clearly barred. Our Court, in the case of Kimberley Pereira vs. Mario Pereira1 , has held that a counter-claim, the period of limitation for which not being provided under Order VIII Rule 6-A of the Civil Procedure, is governed by Article 113 of the Limitation Act and, accordingly, must be filed within three years from the date of accrual of the cause of action.

7. The first Appellate Court has rejected the Appellant's plea of bar of limitation on the ground that the cause of action accruing to the Respondent is a continuing cause of action. Section 22 of the Limitation Act provides for a continuing cause of action. For a cause of action to be termed as a continuing cause of action, the breach of contract or tort, as the case may be, must be continuing. Non-performance of an obligation of the opponent based on a contract between the parties cannot be said to be a continuing breach so that a fresh period of limitation can be said to begin to run at every moment of time during which the breach continues. The liability to perform the obligation begins when the contract is made. At that point of time, a cause of action accrues to the claimant. In this case, such cause of action accrued on 13 December 1976, when the parties entered into the written bargain, under which the Appellant was to shift the power looms of the Respondent in a working condition to a stipulated place. In the premises, the Respondent's counter claim is clearly barred by the law of limitation. 1 2012 (2) Mh. L.J.

IN THE HIGH COURT OF BOMBAY

Second Appeal No.109 Of 1995

Decided On: 02.02.2017

Anna Parisa Chougule, Vs. Sou. Sulochana Nabhiraj Chougule Responden

Hon'ble Judges/Coram:

S.C. Gupte,J.

Citation: 2017(6) MHLJ 693

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Whether court should grant mandatory injunction to protect property from encroachment?

Having considered the rival submissions, we find force in the argument of Respondent No. 1 that even if the claim of Respondent No. 1 regarding title over the whole of the suit property is answered against him, that does not necessarily negate his claim of being a co-owner of the suit property along with his brother. The fact that demarcation of 10 cents out of the suit property (which has been bequeathed to the brother of Respondent No. 1, Achuthan Nair) under a Will executed by their father has still not been done, that would not negate the Respondent No. 1 from being a co-owner in the suit property along with his brother and to have undivided share therein. Being a co-owner of the suit property, there is nothing wrong if Respondent No. 1, with a view to protect the suit property from any further encroachment, was to construct a compound wall within the portion of the suit property as specified by the High Court. The limited relief granted by the High Court to construct such compound wall, is very specific and in no manner likely to adversely affect the Appellants. Nothing has been brought to our notice to the contrary. Indeed, the construction of compound wall must conform to the mandate of municipal laws and other compliances in that behalf.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5366 of 2017 (Arising out of SLP (Civil) No. 3873 of 2014)

Decided On: 01.05.2017

 Poonnamma Jagadamma and Ors. Vs. Narayanan Nair and Ors.

Hon'ble Judges/Coram:

Dipak Misra and A.M. Khanwilkar, JJ.

Citation: 2017(6) MHLJ  484

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Whether mandatory injunction can be granted for vacation of property by person in permissive possession of property?

 I have given my anxious consideration to the arguments advanced by the counsel appearing for both parties at the Bar. In view of the rival contentions, the first question that arises for consideration is whether a suit for mandatory injunction simpliciter requiring vacation of the property is maintainable against the licensee or a person in permissive occupation whose licence or occupation has been terminated by the licensor? To consider the question in controversy, it is worthwhile to quote the relevant Sections.

9. Section 39 of the Specific Relief Act, 1963, reads as follows:

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.

10. Section 52 of the Indian Easement Act, 1882, reads as follows:

"License" defined.--Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.

11. Let us make a combined analysis of Section 52 of the Indian Easement Act and Section 39 of the Specific Relief Act, to determine the question arose above. Licence is a permission granted to the licensee to do or continue to do some act in or upon the immovable property. But the granting of that permission does not create any interest in the property and in the absence of such permission the act would be an unlawful one also. Licensee may be the actual occupant of the property and there cannot be an element of animus possidendi. A licensee has only a right of occupation with the permission of licensor and his possession is not a juridical possession. Since the permission granted is a limited one, which does not cause to create an interest in the property, the licensor has a right to revoke the permission which he had given earlier. Necessarily, such revocation correspondingly casts an obligation on the licensee to vacate the property in obedience to the revocation of permission. If that be so, if the licensee fails to perform his obligation, i.e., vacation of the property, the Court can issue a mandatory injunction to prevent the breach of said obligation and to compel the vacation of the immovable property. Thus, a combined analysis of Section itself makes the issuance of mandatory injunction against the licensee to vacate the property in possession of licensee within the legislative sanction under Section 52 of the Indian Easement Act and under Section 39 of the Specific Relief Act.

12. It follows that such mandatory injunction order to vacate the property is an enforceable one under Order XXI Rule 32, particularly, in view of Explanation under sub-rule (5) of Order XXI, which clarifies that "the act required to be done covers both prohibitory as well as mandatory injunction".

 Even after the termination of the licence, the licensee may have to continue to be in occupation of the premises for some time, because in many cases the licensee may require some reasonable time to remove the materials belonging to him and quit the place. But, during such time also, the licensor will be deemed to be in possession through his licensee, because the licensee cannot have any independent or separate interest in the premises. In that case, a licensee cannot possibly be treated as a trespasser. Further, it is held that it will be difficult to make a distinction in actual practice as to when a licensee becomes a trespasser and upto what time he will continue to be a licensee. There can be a more definite test. If on the expiry of the licence an assertion of a hostile title is made by the licensee and the licensor slept over the matter, then the occupation of the licensee can be considered to have been converted into one of possession of a trespasser. Under such circumstances, the licensor will have to sue for recovery of possession and a suit for a mandatory injunction under Section 39 of the Specific Relief Act, 1963, will not be the remedy. Put it differently, the real test is whether on the expiry of licence the licensee has asserted his hostile title and whether the licensor had slept over the matter despite the assertion of hostile title made by the licensee, after the termination of licence?

IN THE HIGH COURT OF KERALA

R.S.A. No. 1278 of 2010

Decided On: 18.02.2014

Abraham Mathew Vs.  Mariamma Yohannan

Hon'ble Judges/Coram:

K. Harilal, J.

Citation: 2015(1) RCR (RENT)19

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How to determine court fees in suit for mandatory injunction for return of cheque?

The suit as framed is one for mandatory injunction,

directing the defendant to return the cheques allegedly

issued by the plaintiff as security. The suit is not one for a

declaration that the plaintiff has already paid the amount due

to the defendant covered by the cheques in question.

Therefore the finding of the court below that the valuation of

the plaint under Section 27(c) of the Kerala Court Fees and

Suits Valuation Act, 1959 is proper cannot be faulted with.

     2. The plaintiff has a contention that he has already

paid Rs.1,05,000/- due to the defendant and that the sum of

Rs.2,40,000/- shown in both the cheques together is not the

correct amount.    These are all incidental questions to be

considered by the court below in the matter of granting the

relief of mandatory injunction sought for. But the plaintiff


has not sought for any declaration to that effect and

therefore there is no necessity to pay the court fee under

Section 25 of the Kerala Court Fees and Suits Valuation

Act, 1959.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT:

          MR.JUSTICE V.CHITAMBARESH

    11TH DAY OF JUNE 2012

                   CRP.No. 65 of 2012 

        SIJU PAUL Vs T.V.SUBASH,
        

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What are basic principles for grant interlocutory mandatory injunction?

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

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