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Judgment
17 paragraphs · 393 wordsUpon the question whether Courts in this country have the power by virtue of Order XXXIX, Rule 2, of the CPC to issue temporary injunctions
in a mandatory form, we are not prepared to adopt the opinion expressed by Beaman, J., in Rasul Karim v. Pirubhai Amirbhai 24 Ind. Cas. 625 :
38 B. 381 : 16 Bom. I
The description of temporary injunctions in Section 53, Specific Relief Act, does not exclude injunctions of a mandatory nature, and in Israil v.
Shamset Rahman 21 Ind. Cas. 861 : 41nd Cas. 436 : 18 C. W. N. 176 : 19 Cri. L. J. 47. upon an application for an interim injunction, pending
the disposal of a suit, it was ordered that defendant should not only be restrained from further erection of a building but that he should pull down so
much of it as he had erected after he became aware of the institution of the plaintiff''s suit. We also may observe that Shah, J, did not agree with the
opinion of his learned brother in Rasul Karim v. Pirbhai Amirbhai 24 Ind. Cas 625 : 3811 16 Bom. L. R. 288. and that two other Judges of the
Bombay High Court took a different view from Beaman, J. in Champsey Bhimji & Go. v. Jumna Flour Bills Co. 28 Ind. Cas. 121 : 16 Bom. L. R.
566.
On the merits, however, we are of opinion that the present was not a case of such urgency as to make it necessary for the protection of the
plaintiff''s rights that the defendant should be made to remove the screen put up by him before the rights of the parties were heard and determined
in the regular suit which was filed for this very purpose. The facts of this case resemble those of Bonner v. G. W. R. Co. (1883) 24 Ch. D. 1 : 48
L. T. 619 : 32 W. R. 190 : 47 J. P. 580., in which a temporary injunction was disallowed.
The question of what rights the plaintiff possessed to light and air through the window which the defendant blocked by his screen, might very
well have been left to be decided in the suit without anticipating the result of it. We allow the appeal. Each party will bear his own costs in this
Court.