B.F. Varghese vs Joseph Thomas

Varadarajai Iyengar, J.—This revision is by the Plaintiff and arises our of the interlocutory injunction proceedings in the case.

The suit was for permanent injunction to restrain the Defendant tenant from using plaint item 1 room which had been let to him by the Plaintiff as a kitchen and causing nuisance thereby to the tenants of adjoining rooms and further restrain ''him from using item 2 the verandah and courtyard which had not been let at all, for stacking firewood or other things and for other reliefs.

Pending suit the Plaintiff moved for temporary injunction in aid of the permanent injunction relief and after hearing both parties and considering the evidence adduced for the purpose, the Court granted the temporary injunction limited only against the Defendant''s use of the verandah and courtyard for storing firewood or other articles. The Defendant was at the same time directed to see that no annoyance was caused to the neighboring tenants from the smoke arising from his use of item 1 as kitchen. This order was passed on 19-1-1956.

Subsequently in or about May 1956, the Plaintiff removed the door of item 1 leading to the verandah and blocked up the passage with masonry structure apparently on the ground that the Defendant, misused the verandah. Plaintiff also removed'' certain smoke tiles which Defendant had installed on the roof for the better escape of smoke from the kitchen, this again on the ground that the Defendant had no right to make alterations in the building, The Defendant thereupon, on 19-5-1956 applied to the Court to compel the Plaintiff to remove the block up and replace the door as well as put back the smoke tiles on the roof. The Plaintiff objected that he was well within his power in doing the tailing''s complained/against and that the Court had no jurisdiction to/issue any mandatory injunction in the matters prayed for. The Court below however look the matter seriously as constituting an unauthorised reference within the even tenor of its interlocutory junction order and in the result directed tire Plaintiff to restore the status quo within a week, otherwise the Defendants could do the same, the expenses-incurred by the Defendant being left to be dealt with at the stage '' of judgment. It is against this order that the Plaintiff has brought this Revision petition."

The main argument addressed by learned Counsel is that the Court below had no jurisdiction to pass an interlocutory mandatory injunction in the manner adopted and that at the instance of a Defendant in a case. According to Mr. K. T. Ninan. learned Counsel for the Plaintiff Revision Petitioner an injunction can be granted in favour of a Defendant only in a case coming under Order 39, Rule 1 and that was not the case here and that a mandatory injunction in interlocutory proceedings is an exceptional remedy that could be granted under the inherent powers of Court only to the Plaintiff in a suit contemplated by Order 39, Rule 2.

The Court below got over the difficulty by saying that if inherent powers of the Court could be exercised in exceptional circumstances on behalf of the Plaintiff there was no reason not to extend the same jurisdiction in similar circumstances on behalf of the Defendant and it went on to find that-the'' circumstances here exceptional is to require its intervention. I entirely agree with this reasoning. It is observed in Mulla''s CPC 12th Edition p. 11G0 "The Courts in England have the power to grant mandatory injunction on interlocutory applications. And so have chartered High Courts in the exercise of their ordinary original jurisdiction.

The same power is possessed by Courts in the mofussil". The case of Collison v. Warren, (1901) 1 Chh 812 (A), cited in the English Annual Practice is also very instructive in this connection. Buckly J. posed with this question at the initial stage as to whether the Defendant can move for an injunction against the Plaintiff without filing a counter claim, or issuing a writ in a cross action and answered the same in the light of earlier authorities by saying that in some cases and only in some cases he can, viz.,. where his claim to relief arose out of the Plaintiff''s cause of action or was incidental to it.

In that case the Plaintiff depended on a contract under which he affirmed that he was entitled to be employed as manager of a hotel. The Defendant''s cause of action was likewise that contract, only from the opposite point of view. He negatived to the Plaintiff''s claim to be employed and claimed that prevent him from interfering with the management and it was held accordingly that he was entitled to move for injunction in the Plaintiff''s action, even, though it was to restrain the remaining of the plaintiff in the hotel, i.e., it was equivalent to a mandatory order upon the Plaintiffs to go out. There can be no doubt therefore that in particular circumstances the court is entitled to grant injunction involving the positive doing of a thing by the person subjected to the order.

In this case it was clear that the Plaintiff''s I interference with the door passage and die smoke tiles in the roof, tended to discredit the temporary ''injunction order passed by the Court, If the Plaintiff felt aggrieved that the order had not gone far enough he must have taken the matter in appeal at least by approaching the Court once again for redress. It was not for him to take the law into his own hands and change the scope of die earlier order in the case.

If the Court below did not go further and vindicate its dignity by contempt process the Plaintiff has to feel thankful there for. The order of the Court below, cannot in the circumstance be complained against and I affirm it. The Plaintiff will however have one week''s more time from to-day to comply with the direction made in the order. The Revision petition fails and is dismissed with costs.