Should Court pass order of status-quo unless the status of the suit property is admitted by the parties or shown to Court by photographs or otherwise?

  Mr. Madon applies for an order of "statusquo" for 4 weeks. There is no admitted status quo by the parties in the suit property. The Court cannot pass any order of "statusquo" unless the status of the suit property is admitted by the parties or shown to Court by photographs or otherwise.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.S. DALVI, J.

Vimal Builders Vs. Nand Kumar Anant Vaity & Ors.

Notice of Motion No.3514 of 2008,Suit No.2715 of 2007

3rd March, 2009

Citation: 2009(3) ALL MR 559

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Supreme Court: Court should not pass the order of status-quo if the plaintiff fails to make out prima facie case

In view of the above, the trial Court

rightly dismissed the application, as at present

no evidence with regard to purchase of first

floor over the suit property in dispute was

produced by the appellant/plaintiff. In view of

this, judgments referred by counsel for the

appellant are not applicable at this stage”

In our opinion, the High Court committed manifest

error in directing the parties to maintain status quo

despite the fact that no prima facie case was made out by

the plaintiffs for grant of such relief.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2737 OF 2020

POOJA MITTAL Vs   RAKESH KUMAR

Dated: July 14, 2020

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What is difference between status quo and injunction?

Injunction order restrains the defendant(s) covering his legal representatives, employees, agents,his friends or any one claiming title through such defendant(s) alone. ... Whereas the status quo order binds the defendant(s) as well as the plaintiff against alteration of the existing situation/status of the property.

Status quo generally refers to the existing state of affairs or circumstances. A status quo order should be issued by a judge to prevent any of the parties involved in a dispute from taking any action until the matter can be resolved. It seeks to prevent harm or preserve the existing conditions, so that a party's position is not prejudiced in the meantime until a resolution is reached. Injunction order restrains the defendant(s) covering his legal representatives, employees, agents,his friends or any one claiming title through such defendant(s) alone.

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Whether court should accept undertaking given by tenants that they are residing in dilapidated building at their own risk?

 First, there is the matter of occupants offering to give an
‘undertaking’. We are conscious that this approach has gained much
currency, especially in the last few years. It is now more or less
routine for lawyers to blithely offer on behalf of their clients an
‘undertaking to continue in occupation at their own risk’. Mr
Damani says so too. We find this unacceptable on facts. These
tenants/occupants, paying paltry or no rent, have so far paid next to
nothing towards maintenance of the structure that they occupy. We
must notice Section 14 of the Maharashtra Rent Control Act, 1999:
14. Landlords’ duty to keep premises in good repair.
(1) Notwithstanding anything contained in any law for
the time being in force and in the absence of an agreement
to the contrary by the tenant, every landlord shall be bound
to keep the premises in good and tenantable repair.


(2) If the landlord neglects to make any repairs,
which he is bound to make under sub-section (1), within
a reasonable time after a notice of fifteen days is served
upon him by post or in any other manner by a tenant or
jointly by tenants interested in such repairs, such tenant
or tenants may themselves make the same and deduct
the expenses of such repairs from the rent or otherwise
recover them from the landlord:
Provided that, where the repairs are jointly made by
the tenants the amount to be deducted or recovered with
interest by each tenant shall bear the same proportion as the
rent payable by him in respect of his premises bears to the
total amount of the expenses incurred for such repairs
together with simple interest at fifteen per cent per annum
on such amount:
Provided further that, the amount so deducted or
recoverable in any year shall not exceed one-fourth of the
rent payable by the tenant for that year.
(3) For the purposes of calculating the expenses of the
repairs made under sub-section (2), the accounts together
with the vouchers maintained by the tenants shall be
conclusive evidence of such expenditure and shall be
binding on the landlord.
(Emphasis added)
There is absolutely nothing presented to us to indicate that the
Petitioners ever resorted to Section 14(2). It is not as if the building
suddenly became so ruinous overnight. The process had to be
gradual, spanning decades. In all that time, not one of these
occupants or tenants have once cared to take any steps to maintain

the structure. Section 14 of the Rent Act casts a duty on a property
owner to maintain the premises in tenantable repair. But it also gives
tenants the right to force those repairs should the landlord be
recalcitrant. These tenants have done nothing. Their own report
shows that extensive repairs are, even according to them, necessary.
They only say that there is no need to tear down the building. They
do not say the building is in such mint condition that it needs no
repairs at all. Indeed, our experience is that when tenants are asked
to contribute essential repairs, these are resisted and it is only when
the building is so completely dilapidated that there is no option but
to have it evacuated, pull down and reconstructed that such offers of volunteering to pay for repairs come to be made.
29. We do not accept that there is any warrant or support for this
‘undertaking jurisprudence’. After all, what is the nature of such an
undertaking? What is its value? Typically, the undertaking is worded
to say the occupants will continue in occupation at their own risk;
that they will not hold anyone liable if there is a calamity; and that
they agree to be liable for any losses to life or property of third
parties including passers-by. We fail to see the value of such an
undertaking. If it is meant or conceived to be in form of some sort of
generalized, non-specific indemnity, then it is utterly useless.
Should there be a mishap to the person giving the undertaking,
perhaps even a loss of life, then that undertaking, no matter what its
verbiage and legalese, serves no purpose at all. In that situation, it
can never be enforced. To put it pithily, when the ‘undertaker’
meets his maker, he is beyond the reach of the law. Therefore, in our
view, the practice of permitting persons to continue in occupation
on the basis of such undertakings has no warrant in law. In fact, it is

contrary to the specific mandate of the law. These “undertakings”,
in the form noted earlier, may hold none responsible, but does that
absolve the public body from the loss caused to a third party (an
innocent passer-by or one residing in the neighbourhood), or give
the public body complete and total immunity from all legal
proceedings or the consequences of any verdict rendered therein?
The answer is obviously no. It is extremely doubtful whether it can
be urged that an undertaking of this nature described above, even if
filed in and accepted by the Court, releases the MMC from the
statutory obligation and duty it owes to the public at large.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1755 OF 2019

 Mahendra Bhalchandra Shah Vs  Municipal Corporation of
Grater bombay

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Whether court should grant status quo order to demolition notice issued by municipal corporation?

The second aspect is the trend of making an order directing
parties to ‘maintain the status quo’. This is effectively what is sought
even in this writ petition when the petitioners seek from us a writ
commanding the restoration of power and water supply and a
restraint against the forced demolition of the structure. In the case

of a building subjected to a Section 354 notice we do not even
pretend to understand what, if anything, an order of ‘status quo’
(whatever the wording) is supposed to mean. Is it that the building
should continue to degrade and become more ruinous? Or is that
that occupants should continue to be a hazard to themselves or
others or both, contrary to the public law mandate of the statute? Or
is it supposed to be some final determination that the building is not,
in fact, so structurally damaged as to warrant its being pulled down?
If so, then that is a final determination — and one that weight of
precedent says is clearly impermissible — and cannot constitute an
interim or ad interim order.

 We do not suggest that in no case can an order of status quo
ever be made. But it is our considered view that an order of status
quo can be passed only in circumstances that are so sufficiently
precise that both sides and the Court encounter no ambiguity about
the state of affairs that are ordered to be retained as-is.8 The
expression ‘status quo’ means ‘the existing state of affairs’; ‘the
situation that currently exists’;9 or to keep things as they presently
are. It is the nominative form of the prepositional Latin phrase, in
statu quo, literally ‘in the state in which’. In the case of a dilapidated
building, a generalized order of status quo without reference to a
specific or know state of affairs only means that the building should
be allowed to continue to deteriorate further, and that persons are
allowed to continue to occupy the building that has been found to be
8 In Kishore Kumar Khaitan & Anr v Praveen Kumar Singh, (2006) 3 SCC
312, the Supreme Court said it was not proper to order a status quo (there, in
respect of premises) without indicating what the status quo was.
9 Black’s Law Dictionary, 7th Edition.

dangerous not only to themselves but to the general public. Such an
order of status quo itself poses and carries a risk not only to the
occupants themselves but also to others who are not connected with
the present litigation at hand. That stripe of generalized, nonspecific
status quo order in Section 354 cases is contrary to law, to
statute, to precedent, and even logic: there can be no status quo
preventing the monsoon, for instance, or any other force of nature,
nor will it operate to prevent continuing structural degradation over
time. Such a non-specific order of status quo is therefore entirely
impermissible. If necessary, a court will decide the case finally there
and then at the stage of admission (as we have this one).

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1755 OF 2019

 Mahendra Bhalchandra Shah Vs  Municipal Corporation of
Grater bombay


CORAM : S. C. Dharmadhikari & G.S.Patel, JJ.

DATED : 24TH JUNE 2019

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Whether gift deed will be void if it was executed when order of status quo was in existence?

 It is however the contention of the defendant in Regular Civil Suit No. 1155 of 2006 that said gift-deed has been executed when the order of status quo that was passed in Regular Civil Suit No. 1208 of 2004 was in operation. Hence, said gift-deed was void. It is undisputed that during pendency of Regular Civil Suit No. 1208 of 2004 and Writ Petition No. 5797 of 2005 which arose out of challenge to the interim order of injunction, the Court had directed the parties to maintain status quo in regard to possession only. The said interim order related to the actual possession of the suit property and hence, same would not preclude execution of the gift-deed.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal Nos. 457 and 458/2015

Decided On: 03.09.2018

Arvind  Vs.  Baba Jasbirsing Kalsi and Ors.

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: AIR 2019(NOC) 160 Bom

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When induction of new tenant will not amount to violation of order of status quo?

Having heard the parties, it is not disputed that the property has

always been rented out. Even the prayer in the present application is that

regular accounts should be filed and the tenant should not be changed -

thereby clearly acknowledging that the property is under a tenancy. The

prayer that the tenant should not be changed is unsustainable as the property

was always under a tenancy. Status quo order cannot be interpreted against

induction of a new tenant if the old tenant either vacates the property or the

lease is not renewed.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 25th April, 2018

 CONT.CAS(C) 836/2017

MANJULA SAHA & ANR. Vs MAYA RANI SAHA (SD) 

CORAM:

JUSTICE PRATHIBA M. SINGH

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Whether construction made in breach of status quo order can be protected from demolition?

 What is most distressing to note is that on the basis of the said status-quo order, which was binding on the appellant also, the appellant has gone ahead, demolished the existing structure and carried out and completed further construction of four floors. The photographs produced on record by respondent No.1-Municipal Corporation are self-speaking to reveal what was the condition of the suit structure in the year 2014, when  the status-quo order was obtained. It was completely demolished, whereas, now, in the year 2016, when the Officers of respondent No.1-

Municipal Corporation visited the suit premises, they found construction of four floors to be complete. Admittedly, there is not a single document under which the appellant has obtained the permission for construction of four floors. The building already existing was also only of 'ground + 1 floor'. In such situation, it is apparent that whatever construction, which is carried out by the appellant, upto four floors is in breach of the rules and regulations of respondent No.1-Municipal Corporation. It is starkly unauthorized, blatantly illegal and prima facie also in violation of the status-quo order passed by the Trial Court.

24. Needless to state that such illegal and unauthorized construction cannot be protected in any way. Moreover, as pointed out by learned counsel for respondent No.1-Municipal Corporation, the construction carried out is such that it is without plinth and also without usual slabs, but it is only on iron columns. Such construction is hazardous, to say the least, and dangerous to the lives of the occupants and also to the lives of the persons passing nearby or residing adjacent. At-least under the order of the Court, such construction can in no way be protected. Admittedly, this structure is also not occupied and is not in a position to be occupied, as is evident from the photographs dated 19th September 2016 produced  on record by respondent No.1-Municipal Corporation. Therefore, it goes without saying that, when the construction is apparently illegal, carried out in violation of the status-quo order passed by the Court, it is not qualified for protection from this Court.

25. As regards the submission of learned counsel for the appellant that the Notice of Motion and Contempt Petition preferred by respondent No.1-

Municipal Corporation, for breach of the status-quo order, are rejected by the Trial Court, the impugned orders passed by the Trial Court reveal that they were rejected it being the prima facie stage and the evidence will be necessary to prove that there was breach of such order, especially, because the contempt proceedings in the nature of Order XXXIX Rule 2A of CPC are having penal consequences, where it is required to be proved strictly so as to take the necessary penal action or criminal action against the contemnor. However, for the purpose of deciding this Appeal from Order in Notice of Motion, prima facie view has to be taken and this prima facie view is unequivocal that the appellant has carried out construction in violation of the order of status-quo and also against the 'Rules and Regulations of the Development', as prescribed in law. Such construction cannot be protected and hence the impugned order passed by the Trial Court of dismissing the Notice of Motion needs to be upheld and, accordingly, this Appeal from Order stands dismissed with costs.

Bombay High Court

M/S. United Construction vs Municipal Corporation For ... on 22 September, 2016

Bench: Dr. Shalini Phansalkar-Joshi

  Citation:2016(6) ALLMR 610,2017(2) MHLJ270

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Supreme Court: Any act done in violation of order of status quo is illegal

In Wharton's Law Lexicon, 14th Edn. at p. 95 1, status quo has been edefined as meaning:

"The existing state of things at any given date; e.g., Status quo ante bellum, the state of things before the war."

20. According to Black's Law Dictionary, 6th Edn. the relevant passage occurs:

"The existing state of things at any given date. Status quo ante bellum, the state of things before the war. 'Status quo' to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy."

21.This Court in Bharat Coking Coal Ltd. v. State of Bihar' stated thus: (SCC p.398, para 5) "According to the ordinary legal connotation, the term status quo' implies the existing state of things at any given point of time."

22.When the removal of padlock was complained of in the appeal filed by the appellants herein, strangely delivery of possession was ordered! The said order clearly betrays lack of understanding as to the scope of contempt jurisdiction and proceeds upon a total misappreciation of the facts. We are obliged to remark that both the learned Single Judge as well as the Division Bench had not kept themselves within the precincts of contempt jurisdiction. Instead peculiar orders have come to be passed totally alien to the issue and disregardful of the facts. The orders of the learned Single Judge and that of the Division Bench cannot stand even a moment's scrutiny. Therefore, it is idle to contend that no interference is warranted under Article 136.

23.Apart from the fact whether A.K. Ghosh had a legal authority to sublease or not it was not open to him to grant a sublease in violation of the order. It is no use contending as Mr Chidambaram, learned counsel for the respondents does, that there was a bar to such a sublease under the terms of the status quo order. It has the effect of violating the preservation of status of the property. This will all the more be so when this is done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim 'actus curiae neminem gravabit' has no application at all to the facts of this case when in violation of status quo order a sub-tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on September 15, 1988 is what the court is concerned with. Such an order cannot be circumvented by parties with impunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right of subtenancy is recognised, how is status quo as of September 15, 1988 maintained? Hence, the grant of sublease is contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sublease are clearly illegal.

Supreme Court of India

Styabrata Biswas vs Kalyan Kumar Kisku on 27 January, 1994

Equivalent citations: 1994 AIR 1837, 1994 SCR (1) 413

BENCH:
MOHAN, S. (J)
ANAND, A.S. (J)

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Whether it is necessary to maintain status quo of property during pendency of litigation?

The learned counsel for the applicant has
placed reliance on the case reported as AIR 2005 SC 104
(Maharwal Khewaji Trust v. Baldev Dass). The Apex Court
has laid down that ordinarily status-quo of the property
needs to be maintained during pendency of litigation. It is
observed that the ground that legal proceeding is likely to
take long time cannot be an exceptional circumstance to
allow changes by imposing conditions. There cannot be
any dispute over this proportion. Further in view of the
provisions of the Muslim Law and the provisions of the
Wakf Act, the property cannot be allowed to be used for
the purpose other than the purpose for which the property
was dedicated. When the defendant, purchaser, purchased
the property even when there was record of aforesaid
nature, he must blame himself for finding himself in the
present situation. This Court has no hesitation to hold
that the Wakf Tribunal has committed error in refusing to
grant relief of temporary injunction as claimed. The said
order needs to be set aside by allowing the present civil
revision application.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.57 of 2014

Maharashtra State Board of Wakf,

V
Digvijay S/o Deeliprao Deshmukh,

 CORAM: T.V. NALAWADE, J.

 DATE : 3rd MAY 2014

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Supreme Court: Precaution to be taken by court while passing order of status quo

 It is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an ad interim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for him to have passed such an order of injunction. But simply directing the parties to maintain status quo without indicating what the status quo was, is not an order that should be passed at the initial stage of a litigation, especially when one court had found no reason to grant an ex parte order of injunction and the appellate court was dealing with only the limited question whether an ad interim order of injunction should or should not have been granted by the trial court, since the appeal was only against the refusal of an ad interim ex parte order of injunction and the main application for injunction pending suit, was still pending before the trial court itself. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. But of course, that aspect has relevance only to the extent that before ordering an interim mandatory injunction or refusing it, the court has first to consider whether the plaintiff has proved that he was in possession on the date of suit and on the date of the order and he had been dispossessed the next day. Unless a clear prima facie finding that the plaintiff was in possession on those dates is entered, an order for interim mandatory injunction could not have been passed and any such order passed would be one without jurisdiction.

Supreme Court of India

Kishore Kumar Khaitan & Anr vs Praveen Kumar Singh on 13 February, 2006

Bench: S.B. Sinha, P.K. Balasubramanyan

           CASE NO.:
Appeal (civil)  1101 of 2006

Citation:AIR 2006 SC 1474

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Whether court should take security from plaintiff prior to grant of status quo in case of removal of encroachment?

This Court has carefully gone through the provisions

of Maharashtra Land Revenue Code like sections 50 to 53. The

provision of section 50 (5) shows that order made by Collector

can be challenged by filing appeal before the appellate authority.

Admittedly, this recourse was not used. The provision of section

50 (6) shows that only when the decision given under these

provisions becomes final, the suit can be filed to establish the

rights in Civil Court and that too, within six months from the date

when the decision of the revenue authority becomes final. It can

be said that in the present matters, there is no right as such to

the plaintiffs to continue the possession, but by making some

contentions, they have remained on the space due to the orders

made by the Courts below. The Trial Court has rightly held that

the provision of section 50 is applicable in such cases. The

record is produced to show that the Collector has delegated the

powers to Tahsildar, both in respect of agricultural lands and non

agricultural lands. Thus, there is no illegality in the notices given

against the plaintiffs and there are further aforesaid

circumstances. In view of the facts and circumstances, this Court

has no hesitation to observe that the Courts below did not take

proper care, they did not take even the security from the

plaintiffs for getting order like statusquo and due to that the

Government could not take the steps like widening of the road in

respect of that portion.

IN THE HIGH COURT AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

 SECOND APPEAL NO. 255 OF 2016

RAJENDRA POPAT WAGHMARE AND OTHERS

VERSUS

THE STATE OF MAHARASHTRA THROUGH THE DISTRICT

COLLECTOR

CORAM : T.V. NALAWADE, J.

DATED : 31st March, 2016.

Citation: 2016 (4) MHLJ 475

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Principles to be considered for grant of interlocutory mandatory injunction

 It is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an ad interim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for him to have passed such an order of injunction. But simply directing the parties to maintain status quo without indicating what the status quo was, is not an order that should be passed at the initial stage of a litigation, especially when one court had found no reason to grant an ex parte order of injunction and the appellate court was dealing with only the limited question whether an ad interim order of injunction should or should not have been granted by the trial court, since the appeal was only against the refusal of an ad interim ex parte order of injunction and the main application for injunction pending suit, was still pending before the trial court itself. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. But of course, that aspect has relevance only to the extent that before ordering an interim mandatory injunction or refusing it, the court has first to consider whether the plaintiff has proved that he was in possession on the date of suit and on the date of the order and he had been dispossessed the next day. Unless a clear prima facie finding that the plaintiff was in possession on those dates is entered, an order for interim mandatory injunction could not have been passed and any such order passed would be one without jurisdiction.

5. 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 materials 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.

Supreme Court of India

Kishore Kumar Khaitan & Anr vs Praveen Kumar Singh on 13 February, 2006

Bench: S.B. Sinha, P.K. Balasubramanyan

           CASE NO.:
Appeal (civil)  1101 of 2006

Citation:AIR 2006 SC 1474

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Leading judgment on grant of status quo or exparte injunction

 All that we have said above is sufficient to dispose of the petition. But before parting with the judgment, we would like to deal with the manner in which learned Civil Judge, Junior Division passed the order directing parties to the suit to maintain status quo without proper verification of plaintiffs' right when he found that no prima facie case was made out. This was in flagrant violation of the mandate of Rule 3 of Order XXXIX of the Code of Civil Procedure. We are also told at the Bar in the course of hearing of this petition that the learned Judge is in the habit of passing such orders granting ad interim injunctions in number of suits, even though prlma facie case is not made out. It has come to our notice that in many cases subordinate Courts are granting ad interim reliefs without following the mandate of Rule 3 of Order XXXIX of Civil Procedure, Code. Only under exceptional circumstances ex parte stay order or interim relief is required to be granted by recording reasons. But recording of reasons should not be an empty formality, such as by mentioning that the record is seen and the plaintiff establishes prima facie case. The Courts should bear in mind the following principles enunciated in the case of Morgan Stanley Mutual Fund v. Kartlck Das, reported in (1994) 4 SCC 255 : 1994 AIR SCW 2801.

"36. As a Principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of ex parte injunction are :

a) whether irreparable or serious mischief will ensue to the plaintiff.

b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve

c) The Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented.

d) The Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction.

e) The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

f) Even if granted, the ex parte injunction would be for a limited period of time.

g) General principles like prima facie, balance of convenience and irreparable loss would also be considered by the Court."

 Our High Court in Sopan Maruti Thopte v. Pune Municipal Corporation, was dealing with a case relating removal of unauthorised construction where an injunction had been granted in favour of person who has raised unauthorised construction and ordered that passing of interim order indiscriminately and without reasons apparent and due application of mind, which has effect of allowing plaintiff to continue to enjoy the fruits of his illegal actions including unauthorised construction tends to lower the Court's prestige and clearly undermines the Rule of law. The result is that implementation of law suffers.

 In our view, the need to see that a prima facie case is made out, before a Court grants ad interim injunction, cannot but be over emphasised. Prima facie case should be such that it should appear on record that there is a bona fide contest between the parties and serious question is required to be tried. If the plaintiff has no right, title or interest in the property, normally there is no question of granting equitable relief in his favour. Such ex parte orders have far reaching effect, as such a condition has been imposed that the Court must record reasons before passing such order.

 It should be borne in mind before issuance of an injunction that it is a discretionary and equitable relief. It is not mandatory that for mere asking such relief should be given. It is not charity at the cost of public. However, procedure established by law has to be followed. That the violators of law should not liberally be allowed to take protection of Court of law by obtaining ad interim injunction which have the effect of continuing such violation.

Bombay High Court

Nagorao And Ors. vs The Nagpur Improvement Trust And ... on 1 March, 2001

Bench: J Patel, P Brahme

Citation:AIR 2001 Bombay, 402

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Whether appellate court will interfere with order of trial court if there is no decision on merit?

The unequivocal legal propositions as judicially ordained, to ascertain the emergence and existence of a question of law, the scope of examination thereof by a court of appellate jurisdiction and the balancing of the competing factors in the grant of interlocutory remedy, hallowed by time, indeed are well settled. A question of law, as is comprehended in Section 10Fof the Act, would arise indubitably, if a decision which is the foundation thereof, suffers from perversity, following a patent error on a fundamental principle of law or disregard to relevant materials or cognizance of irrelevant or non- germane determinants. A decision however, on the issues raised, is a sine qua non for a question of law to exist. A decision logically per- supposes an adjudication on the facets of the controversy involved and mere deferment thereof to a future point of time till the completion of the essential legal formalities would not ipso facto fructify into a verdict to generate a question of law to be appealed from. However, an omission to record a finding even on a conscious scrutiny of the materials bearing on the issues involved in a given case, may be termed to be one. Be that as it may, in any view of the matter,appellate forum though exercising a jurisdiction which otherwise may be co- ordinate with that of the lower forum, ought to confine its judicial audit within the layout of the adjudgment undertaken by the forum of lower tier. This is imperative, more particularly in the exercise of the appellate jurisdiction qua a decision on discretion rendered at an introductory stage of any proceeding, otherwise awaiting final adjudication on merits following a full contest. It is settled that no adjudication at the preliminary stage of a proceeding in a court of law ought to have the attributes of a final verdict so as to prejudge the issues at that stage, thereby rendering the principal determination otiose or redundant. This is more so, if the pleadings of the parties are incomplete at the threshold stage and the lower forum concerned seeks only to ensure a working arrangement vis-a-vis the dissension and postpone fuller and consummate appreciation of the rival assertions and the recorded facts and the documents at a later stage.

Bombay High Court

Sharma Realty Pvt. Ltd. And 2 ... vs Vinod Muktinath Sharma on 21 January, 2016

Bench: K.R. Sriram

ORDINARY ORIGINAL CIVIL JURISDICTION 




                                                                                         COMPANY APPEAL (L) NO.74 OF 2015




                                                                                 WITH

COMPANY APPLICATION (L) NO.114 OF 2015

   

                                                                           Citation:2016(2) ALLMR 427

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Basic principles for grant of temporary injunction

This Court in Wander Ltd. (supra), while dealing with appeals against orders granting or refusing a prayer for interlocutory injunction, did reiterate that the same, being in exercise of judicial discretion, the appellate court ought not interfere therewith and  substitute its own discretion except where such discretion is shown to have been exercised arbitrarily or capriciously or perversely or where the Court whose order has been appealed from, had ignored the settled principles of law, regulating grant or refusal of interlocutory injunctions. It was enunciated, that appeal against exercise of discretion is an appeal on principle and the appellate court would not reassess the materials and seek to reach a conclusion different from the one reached by the court below, if it was reasonably possible on the materials available. It was held as well, that the appellate Court in such a situation would normally not be justified in interfering with the exercise of discretion of the Court below, if made reasonably and in a judicial manner, solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. It was proclaimed that an interlocutory remedy is intended to preserve in status quo, the rights of the parties which may appear on a prima facie examination of a case. It was held that the prayer for grant of interlocutory injunction, being at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence, it is required to act on certain well-settled principles of administration of such interlocutory remedy which is both temporary and discretionary. Referring to the fundamental object of interlocutory injunction, this Court noted with approval that the need for such protection of the plaintiff against injury by violation of his rights must be weighed against the corresponding need of the defendant to be protected against any injury resulting from the restraint on the exercise of his rights, as sought for, which he could not be adequately compensated. The need of one, thus was required to be compared against the other, to determine the balance of convenience to ensure an appropriate exercise of discretion for an interim remedy as suited to a particular fact situation.

Bombay High Court

Sharma Realty Pvt. Ltd. And 2 ... vs Vinod Muktinath Sharma on 21 January, 2016

Bench: K.R. Sriram

ORDINARY ORIGINAL CIVIL JURISDICTION 




                                                                                         COMPANY APPEAL (L) NO.74 OF 2015




                                                                                 WITH

COMPANY APPLICATION (L) NO.114 OF 2015

   

                                                                           Citation:2016(2) ALLMR427

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When court will not grant injunction in favour of plaintiff?

A perusal of record further indicates that after obtaining
ad-interim order of status-quo from this Court, the appellant has
extended the temporary structure in the suit premises. A perusal of
the photographs produced on record by the Municipal Corporation as
well as by the intervenor clearly indicates such further extension
carried out by the appellant. In my view, the reliefs under the
provisions of Order 39 Rule 1 of the Code of Civil Procedure are
equitable reliefs and are discretionary and such discretion can be
exercised by the Court only when the person has come to the Court
with clean hands and has not suppressed and/or material facts and
makes out a prima-facie case. In my view if a person violates the
order of status-quo granted by this Court, cannot be granted anyrelief by exercising discretionary power by Court. A perusal of the
order passed by the learned trial Judge clearly indicates that the
appellant was given an opportunity to produce all the documents. The
learned trial Judge considered each and every document produced
by the appellant before him and has rightly rejected the ad-interim
relief. Though this Court has granted sufficient opportunity to the
appellant to convince this Court that the suit structure was a pacca
structure and that the appellant was carrying on business in the suit
premises since 1961-1962. In my view, the learned counsel
appearing for the appellant could not demonstrate any of these

crucial facts to seek any interim relief from this Court.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.75 OF 2015
WITH
CIVIL APPLICATION NO.89 OF 2015
Mohd. Ismail Gulam Shaikh 
V/s.
Municipal Corporation of Gr.Mumbai & Anr.
 CORAM : R.D. DHANUKA, J.
 DATE : 1ST FEBRUARY, 2016.
Citation;2016(3) MHLJ247

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Whether person violating order of status quo is entitled to get injunction?

 A perusal of record further indicates that after obtaining
ad-interim order of status-quo from this Court, the appellant has
extended the temporary structure in the suit premises. A perusal of
the photographs produced on record by the Municipal Corporation as
well as by the intervenor clearly indicates such further extension
carried out by the appellant. In my view, the reliefs under the
provisions of Order 39 Rule 1 of the Code of Civil Procedure are
equitable reliefs and are discretionary and such discretion can be
exercised by the Court only when the person has come to the Court

with clean hands and has not suppressed and/or material facts and
makes out a prima-facie case. In my view if a person violates the
order of status-quo granted by this Court, cannot be granted any relief by exercising discretionary power by Court. A perusal of the
order passed by the learned trial Judge clearly indicates that the
appellant was given an opportunity to produce all the documents. The
learned trial Judge considered each and every document produced
by the appellant before him and has rightly rejected the ad-interim
relief. Though this Court has granted sufficient opportunity to the
appellant to convince this Court that the suit structure was a pacca
structure and that the appellant was carrying on business in the suit
premises since 1961-1962. In my view, the learned counsel
appearing for the appellant could not demonstrate any of these
crucial facts to seek any interim relief from this Court.
 In my view the appeal is devoid of merits. 

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.75 OF 2015
WITH
CIVIL APPLICATION NO.89 OF 2015
Mohd. Ismail Gulam Shaikh 
V/s.
Municipal Corporation of Gr.Mumbai & Anr.
 CORAM : R.D. DHANUKA, J.
 DATE : 1ST FEBRUARY, 2016.
Citation;2016(3) MHLJ247

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Whether court can appoint court commissioner in suit for injunction?

 Having heard the Learned Counsel for the parties I have considered the rival contentions. It is well settled that the powers under Order XXVI Rule 9 of the Civil Procedure Code can be invoked for appointment of the Court Commissioner to elucidate the matter in controversy. In the instant case the controversy is as regards the 100 year old trees which the Plaintiff alleges are in his property, which he apprehends that the Defendant Nos. 1 to 5 would cut without permission. The principal relief sought in the Suit is an injunction restraining the Defendant Nos. 1 to 5 from cutting the 100 year old trees. The Trial Court at the stage of considering the application Exhibit 5 though has come to a conclusion that the existence of the trees cannot be denied, observed that there has to be some clarity as to in whose agricultural land the trees are existing, whether they are on the land of the Plaintiff or the Defendant Nos. 1 to 5. It is on the said basis that the application for temporary injunction filed by the Plaintiff came to be rejected. The order passed by the Trial Court has been carried in Appeal and the said Misc Civil Appeal is pending, however the order of status-quo is operating in the said Appeal. The parties have produced material by way of 7/12 extracts as well as measurement maps which do not show the existence of the trees. However the photographs produced by the Plaintiff shown the existence of the tress. The dispute being one restricted to the cutting of trees by the Defendants and also as regards the relief of injunction sought by the Plaintiff against the Defendants, the appointment of the Court Commissioner under Order XXVI Rule 9would only result in elucidation of the matter in controversy. It is not a case where the Plaintiff has not produced any material or that there is any dispute about the ownership of the Plaintiff in so far as the land bearing Gat No. 1465 or ownership of the Defendants in so far as Gat No. 1464 is concerned. However, the said material having been found to be insufficient by the Trial Court in deciding the application Exhibit 5 filed for temporary injunction, the appointment of the Court Commissioner in such a situation cannot be said to result in collection of evidence through the medium of Court. It is well settled that to resolve a dispute regarding the boundary between two properties a Court Commissioner can be appointed (see MANU/MH/0384/2011 : 2011(3) Bom.C.R. 807, Kolhapuri Bandu Lakade Vs. Yaooappa Chinappa Lakade (deceased) through Pooja @ Poojari Y. Lakade & Ors). 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3643 of 2014

Decided On: 03.12.2014

Appellants: Dattatray Namdev Kalake
Vs.
Respondent: Bapu Bhairu Bhivungade

Hon'ble Judges/Coram:R.M. Savant, J.

Citation: 2015(1)ALLMR5, 2015(1)BomCR267, 2015(1)MhLj892

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Whether wife can be restrained from performing re-marriage after decree of nullity is passed in her favour?

Family - Limitation on Re-marriage - Section 15 of Hindu Marriage Act, 1955 - Trial Court dismissed husband's suit for restitution of conjugal rights but decreed suit of wife annulling marriage between parties on ground of former's impotency since marriage - Husband filed appeal during pendency of which wife got re-married and thereafter, applied for dismissal of appeals as infructuous - Appellant prayed status quo till final decision of appeals - Held, there was no legal incompetency in Respondent wife for contracting re-marriage once her marriage with Appellant had been annulled by a decree of nullity - Marriage between Appellant and Respondent having been annulled, their status as husband and wife of each other had ceased to exist - If Appellant wanted status quo to be preserved till final decision of appeals, he should have applied for prohibitory order restraining Respondent from marrying again till appeals filed by him had been decided - In absence of any such order, Respondent was no more wife of Appellant and there was no provision in law which created any impediment to her re-marriage - Re-marriage was thus valid marriage, it was neither void nor voidable - It could not be annulled or dissolved for reason that it was contracted during pendency of appeals, nor could it be affected by ultimate decision of appeals, even if it went in favour of Appellant - Limitations to re-marriage provided by Section 15 have no application to decree of nullity - Respondent cannot revert to her status as wife of Appellant even if his appeals succeed, because her re-marriage, under law, is neither void nor voidable, but valid and irrevocable - Appeals became infructuous and were liable to be dismissed - Appeal dismissed.

Madhya Pradesh High Court

Mohanmurari vs Smt. Kusumkumari on 22 December, 1964

Equivalent citations: AIR 1965 MP 194

Bench: T Naik, S Dayal

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