Arun Kapur and Vinay Kumari vs Atul Kapur

S. Rajeswaran, J.—This Application has been filed for an order of ad interim mandatory injunction directing the respondent/plaintiff to

vacate possession of the premises namely Pent House 9-A situated at ""Ved Nivas'' No. 52, Taylors Road, Kilpauk, Chennai-600010 and restore

the possession of the said Pent House No. 9-A to the applicants/defendants pending disposal of the suit.

The defendants in the suit filed the Application under Order 39 Rule 1 and 2 CPC for an order of interim mandatory injunction directing the

plaintiff to vacate the Pent House, which is more fully described in the schedule and to restore possession of the said Pent House pending disposal

of the suit.

The suit was filed by the plaintiff, who is the younger brother of 1st defendant and son of 2nd defendant, for partition of the immovable property,

(i.e.) land and buildings bearing door No. 52, Taylors Road, Kilpauk, Chennai-18, measuring 11 grounds 1837 sq.ft. and put the plaintiff in

separate possession of 11014/28284 shares by metes and bounds and also for rendition of true and correct accounts of the income from the said

property collected by 1st defendant.

The case of the defendants in the above application is that the plaintiff filed Application No. 1838/2804 for interim injunction and application

No. 5856/2804 for appointment of advocate-commissioner and both were dismissed by this Court on 25.1.2085 on the ground that the plaintiff

executed a release deed releasing all his rights in the property and this fact was suppressed in the plaint and the affidavit. Against the dismissal of

the interim injunction application the plaintiff filed O.S. A. No. 98/2885 and the Division Bench granted interim injunction on 21.4.2005 and

ultimately the Division Bench remanded the matter to the trial court. On 5.1.2006, this Court on remand, again dismissed O.A.No. 1038/2004 and

allowed the other application in A.No. 1638/2005 for amendment of plaint.

It is the specific case of the defendants that only after the interim injunction was granted by the Division Bench in O.S.A.No. 90/2005, the

plaintiff trespassed into the Pent House and is liable to be vacated by an order of interim mandatory injunction.

The plaintiff filed a counter affidavit opposing the application. He denied that he trespassed into the Pent House only after an interim injunction

was granted by the Division Bench and he has been actually staying in the Pent House with his family. He has been paying the membership fee of

Rs. 20,000/- and the maintenance charges to the association He also paid a sum of Rs. 5,000/- for fire fighting charges. According to the plaintiff,

three pent houses were built for the plaintiff and the defendants and pent house 9A was allocated to him, pent house 9C and 9E were allotted to

2nd and 1st defendants respectively. He was also permitted to carryout some work in the pent house by the Division Bench and the pent house 9A

was never in the possession of the defendants. Therefore he prayed for dismissal of the above application.

Heard Mr. Arvind P. Datar, the learned Senior counsel for the applicants/defendants and Mr. T.V. Ramanujun, the learned Senior counsel for

the respondent/plaintiff. I have also perused the documents filed and the judgments referred to by them in support of their submissions.

The learned Senior Counsel for the applicants/defendants submitted that Application No. 1038/2004 filed by the plaintiff for protecting his

interest was dismissed by this Court on 25.1.2085. An interim injunction was granted by the Division Bench on 21.4.2005 in O.S.A.No. 98/2005

and only thereafter the plaintiff trespassed into the pent house and in such circumstances an interim mandatory injunction is to be granted to restore

status-quo ante as this is an exceptional case.

The learned Senior Counsel relied on the following decisions in support of his submissions:

1) AIR 1998 S.C.867 (Dorab Cawasji Warden v. Coomi Sorab Warden)

2) Kishore Kumar Khaitan and Another Vs. Praveen Kumar Singh,

3) 2006(4) M.L.J.665 (Chinnayyan Nadar v. Selvi)

Per contra, the learned Senior counsel for the respondent/plaintiff submitted that it was never established by the defendants that the plaintiff

entered into the pent house in question only after the order of injunction granted by the Division Bench and in such circumstances the normal rule of

not granting interim mandatory injunction will prevail. He further drew my attention to the case laws cited by the learned Senior counsel for the

applicants/defendants and submitted that in all the cases, it was the plaintiff who moved the courts for interim mandatory injunction in the suits filed

by them, whereas in this case, the defendants are seeking this relief against the plaintiff who is also a co-owner and therefore the application itself is

not maintainable.

I have considered the rival submissions carefully with regard to facts and citations.

The scope of granting mandatory injunction on interlocutory application came up for consideration before the Hon''ble Supreme Court in the

decision reported in AIR 1992 S.C. 867 (cited supra) and the Supreme Court held as under:

As far the cases decided in India we may note the following cases.

In one of the earliest, cases in Rasul Karim Vs. Pirubhai Amirbhai, , Beaman, J. , was of the view that the court''s in India have no power to issue a

temporary injunction in mandatory form but Shah, J. , who constituted a Bench in that case did not agree with Beaman, J. , in this view. However,

in a later Division Bench judgment in Champsey Bhimji and Co. Vs. The Jamna Flour Mills Co., Ltd., , two learned Judges of the Bombay High

court took a different view from Beaman, J., and this view is now the prevailing view in the Bombay High Court. In M. Kandaswami Chetty v. P.

Subramanian Chetty ILR (1918) Mad 288 : AIR 1918 Mad 588 a Division Bench of the Madras High court held that court''s in India have the

power by virtue of Order 39, Rule 2 of the CPC to issue temporary injunctions in a mandatory form and differed from Beaman''s view accepting

the view in Champsey Bhimji & Co. v. Jamna Flour Mills Co. (supra).

In Israil v. Shamser Rahman (1914) II R41 Cal 436 : AIR 1914 Cal 362, it was held that the High Court was competent to issue an interim

injunction in a mandatory form. It was further held in this case that in granting an interim injunction what the court had to determine was whether

there was a fair and substantial question to be decided as to what the rights of the parties were and whether the nature and difficulty of the

questions was such that it was proper that the injunction should be granted until the time for deciding them should arrive. It was further held that the

court should consider as to where the balance of convenience lie and whether it is desirable that the status quo should be maintained. While

accepting that it is not possible to say that in no circumstances will the courts in India have any jurisdiction to issue an ad interim injunction of a

mandatory character, in Nandan Pictures Ltd. Vs. Art Pictures Ltd. and Others, , a Division Bench was of the view that if the mandatory injunction

is granted at all on an interlocutor application it is granted only to restore the status quo and not granted to establish a new state of things differing

from the state which existed at the date when the suit was instituted.

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:

(l) 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) 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.

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 or

complete or absolute rules, and there may be exceptional circumstances needing action, applying them pre-requisite for the grant or refusal of such

injunctions would be a sound exercise of a judicial discretion.

In the above decision the Supreme Court after considering that the suit was filed u/s 44 of Transfer of Property Act, and after rendering a

finding that there was no evidence to prove the prior partition upheld the order of interim mandatory injunction granted by the trial court. The facts

in the above case are easily distinguishable and this decision will not help the applicants/defendants for getting an order of interim mandatory

injunction.

In 2086 (3) CTC 185 (cited supra), the Hon''ble Supreme court held as follows:

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. Keeping this principle in mind, it is necessary to see

whether in the case on hand, the Additional District Judge was justified in passing the interim order of injunction.

In the above case, after finding that the plaintiff had not proved his case prima facie, the Supreme court set aside the order granting interim

mandatory injunction.

In 2006 (4) M.L.J. 665 (cited supra), this Court after observing that the wall was completed after obtaining the stay of injunction and without

taking steps communicated the same to the other side, this Court held that it would fall within the meaning of exceptional cases and upheld the

order of the court below in granting interim mandatory injunction.

If the facts of the present case are considered, I am of the considered view that the conduct of the respondent/plaintiff would not come within

the exceptional cases as laid down by the apex court and this Court.

For getting an interim order of mandatory injunction a strong case should be projected which is of a higher standard than a prima facie case

that is normally required for a prohibitory injunction. It can be granted to preserve or restore the status-quo of the last non-contested status which

preceded the pending controversies. In the case in hand right from the beginning the plaintiff has been asserting that he has been in possession and

enjoyment of the pent house. It is true that his injunction application was dismissed first by the learned Single Judge and against which an appeal

was filed and the Division Bench granted an order of interim injunction. It is also true that on remand by the Division Bench, his injunction

application was again dismissed by the learned Single Judge. It is the case of the applicants that only after getting the interim injunction from the

Division Bench, the respondent entered into the pent house, which is nothing but a trespass and therefore possession is to be restored to them. But

the applicants/defendants were not able to establish that the respondent/plaintiff has not been in possession of the pent house before obtaining the

order interim injunction from the Division Bench nor they were able to establish that the respondent/plaintiff trespassed into the pent house only

after the orders of the Division Bench. The higher standard of proof that is more than a prima facie case required for granting such order is lacking

in the present case. Further it cannot be said that the non-possession of the respondent/plaintiff of the pent house is non-contested status which

preceded the suit. This fact of possession is being disputed by both parties and therefore at this juncture it is not established that the

respondent/plaintiff altered the prevailing status after obtaining the order of injunction from the Division Bench. The applicants have to establish

their case with stronger evidence to get the relief prayed for and as rightly submitted by the learned Senior counsel for the respondent/plaintiff this

Court cannot undertake a mini-trial at the stage of hearing the interlocutory application. Further this is a suit filed by the plaintiff against his elder

brother and mother for partition and separate possession. Considering the relationship of parties also, it cannot be said at this juncture that

respondent/plaintiff is a trespasser and he has to restore possession to the applicants/defendants.

Hence I find no merits in the above application and the same is dismissed. No costs.