Bhikari Majhi vs Baidyanath Batik and Another

P.K. Mohanti, J.—This civil revision is directed against an appellate order reversing an order of temporary mandatory in junction.

The Petitioner as Plaintiff brought Title Suit No. 7 of 1978 against the opposite parties for declaration of title to and confirmation or in the alternative recovery of possession over the suit land and also for a permanent injunction restraining the opposite parties from interfering with the Plaintiff''s possession, and also directing them to remove the earth put by them on the suit land thereby obstructiong the flow of drain water from the plain tiff''s house.

The Petitioner''s case is that he is the owner in possession of plot Nos. 2417 and 2418 with the residential house standing thereon. Plot No. 2415 belonging to the opposite parties lies to the contiguous north of plot No. 2417. There is a drain on the northern side of the Petitioner''s house situated on plot Nos. 2417 and 2418 and the dram water passes on plot No. 2418. On 20-12-1977 the opposite parties obstructed the flow of drain water by putting earth on the drain,

Along with the plaint the Petitioner filed an application under Order 39, Rule 1. CPC read with Section 151, CPC for issue of a temporary mandatory injunction against the opposite parties directing them to remove the obstruction so as to make the drain fit for free flow of water.

The opposite parties resisted the prayer for temporary injunction. Their contention was that the Petitioner has not even an inch of land beyond the northern wall of his house and when he attempted to dig out a drain on the land lying close to the northern wall of his house, they protested. Hence the Plaintiff filed the suit on false allegations.

The learned Munsif issued a temporary injunction restraining the opposite parties from changing the nature of the suit land and the drain situated thereon till the disposal of the suit and directing them to remove the obstruction from the drain in question within a period of fifteen days so as to render it fit for free flow of water. On appeal, the learned Subordinate Judge vacated the order of temporary injunction on the findings that the Petitioner has not made out a prima facie case, that there is a drain available on the eastern side of the Plaintiffs house through which the surplus water can pass safely to the public toad, that no irreparable injury would be caused to the Petitioner if no injunction is issued and that the balance of convenience was in favour of the opposite parties.

The question at issue is whether the Courts have power to order a mandatory injunction on an interlocutory application.

The cases decided in England show the existence of such powers. In Robinson v. Lord Byron (1785) 1 Bro, C.C. 589, Lord Byron was directed as an interim measure not to overflow or starve the Plaintiff''s mill by the use of sluice and dams under his control, pending the trial of the suit. In Allpprt v. The Securities Company Limited (1895) 72 L.T. 533, the Defendant was directed to reconstruct a staircase pending trial.

In India there was a doubt about existence of such powers. In the case of Rasul Karim Vs. Pirubhai Amirbhai, , Beaman, J, held that the power to issue such an injunction was not within the scope of Order 39, CPC and doubted whether muffssil Courts in India had power to issue such an injunction. But Shah, J. sitting with him in the Division Bench did not agree with this view. In the case of Champsey Bhimji and Co. Vs. The Jamna Flour Mills Co., Ltd., , a Division Bench of the same High Court took a different view from Beaman, J. and held as follows:

Having regard to the very clear wording of Order 39, Rule 2, and to the fact that this Court has always exercised the power of remedying an injury or wrong by a mandatory injunction on an interlocutory application. I have no doubt whatever that this Court has power to make a mandatory order on an interlocutory application. If the Court had no such power it would be in the power of a party to cause insufferable inconvenience and grave injury to another during the whole time that would elapse between the commission of the wrongful act and the hearing of the suit filed to remedy the wrong and redress the injury.

In Israil and Ors. v. Samset Rahman and Ors. AIR 1914 Cal. 362, it was found that a substantial portion of the building had been erected by the Defendants after they became aware of the institution of the suit and of the application for temporary injunction. Their Lordships held:

In a case of this description, the Court would, if necessary, proceed not only to grant a temporary injunction restraining the further erection of the building, but also to direct that the building already erected be taken down.

In the case of Gogineni Gopayya and Ors. v. Manikonrla Sohhanadri A. I. R. 1927 Mad. 188, temporary injunction was issued directing the Defendants to remove earth and restore bunds upon their lands so as to allow the Plaintiff to take-water to his land by the right of easement which he claimed. The Court held:

...It is often a predominant necessity to maintain the status quo at the time of the institution of the suit. But there is not the same justification for carrying the principle back to some period anterior to the suit as the Subordinate Judge has done. As a matter of fact it is the present injunction which is disturbing the status quo.

In Nandan Pictures Ltd. Vs. Art Pictures Ltd. and Others, . 428their Lordships pointed out that it is only in very rare cases that a mandatory injunction is granted on an interlocutory application and instances where such an injunction is granted by means of an ''ad interim'' order pending the decision of the application itself are almost unknown. It was further held that if a mandatory injunction is granted at all on an interlocutory 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. This decision was followed by the Patna High Court in The University of Bihar and Another Vs. Rajendra Singh, .

In the case of Durg Transport Co. Private Ltd. Vs. Regional Transport Authority and Others, , their Lordships followed the principles laid down in Nandan Pictures Ltd. Vs. Art Pictures Ltd. and Others, and observed as follows:

...A stay order or an order of injunction is not granted to disturb the status quo. It is no doubt granted to restore the status quo. It is never granted to establish a new state of things differing from the state which existed at the date when proceedings were Instituted....

In the case of Mall Suranna Vs. Kalla Somulu and Others, , it was held as follows:

...It can now fairly be taken as settled that on an interlocutory application, injunction in a mandatory form can be issued by the Civil Courts. Such a power however has to be exercised in very rare cases and with due care and caution. It is of course plain that unless there are exceptional circumstances, the mandatory injunction would not normally be issued. It is no doubt plain that such a mandatory injunction can be granted to restore the status quo existing on the date of the suit. But the issue of such injunction cannot be claimed as a matter of right nor can it be issued as a matter of course....

In the case of Goverdhan Singh v. Mulkh Rai and Anr. AIR 1973 J&K 63 a portion of the business premises was directed to be demolished and reconstructed.

From a conspectus of the cases referred to above, the principles that emerge are that under the provisions of Order 39, Rule 1 the Court can issue an injunction of a mandatory character, but such an injunction can only be issued to keep things in status quo during the pendency of the litigation. Before issuing a temporary mandatory injunction the Court must be satisfied that the effect of the injunction would be to preserve the status quo during the pendence of the litigation and to prevent an irreparable injury to the Plaintiff. If the effect of the injunction would be to alter the status quo during the pendency of the suit no such injunction can be issued, because that would result in granting to the Plaintiff the remedy he seeks in the suit before the contentions of the contending parties are properly tried.

In the present case, the Plaintiff filed the suit on 10-1-1978 and wanted a temporary mandatory injunction to restore a state of things existing on 20-12-1977. According to the allegations in the plaint, the Defendants had blocked the passage of water by a putting some earth on the drain on 20-12-1977. The Plaintiff sought for a temporary mandatory injunction directing the Defendants to remove the earth from the drain. In my opinion, that would amount to altering the status quo. Moreover, the materials available on the record are not sufficient to show that the Plaintiff will be put to any irreparable injury if no injunction is granted immediately. I do not wish to go into the question whether the drain in question stands on Plaintiff''s land and whether the Plaintiff has another drain for passage of water from his premises, because the subject-matter of the suit and the subject-matter of the application for temporary injunction being identical, any observation made at this stage is likely to affect the ultimate disposal of the suit. Suffice it to say that no irreparable injury would be caused immediately if the mandatory injunction sought for is refused and the suit is disposed of before the advent of rainy season.

In view of my above findings, the Civil revision fails and is dismissed, but in the circumstances without any orders as to costs. The learned Munsif is directed to dispose of the suit within a period of three months hence. The lower Court records; be sent back forthwith.

Revision dismissed.