WORKSHOP- III

PAPER PRESENTATION ON THE TOPIC

OF

PRINCIPLES OF MANDATORY INJUNCTION

Submitted by:

Smt.SRIDEVI SHANKER,
Prl.Junior Civil Judge,
Sircilla.
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PRINCIPLES OF MANDATORY INJUNCTION

INTRODUCTION :

WHAT IS AN INJUNCTION ?.

What if you move into a new house, and your new neighbors play
loud music in the middle of the night, every single day? What happens if a
baseball stadium is built next to your house, and lights shine in on you
every night preventing you from sleeping? These are situations where you
may ask the offending party to stop doing something that is bothersome
and a nuisance to you. However, there are times when simply asking does
not resolve the problem. In such a case, you may seek to go to Court to
ask the judge to intervene in the situation and force the offensive party
from continuing to behave in the problematic manner. In order to do so,
you would file an injunction.

An injunction is a legal remedy which is imposed by a Court. In

simple terms, an injunction means that one of the parties to a certain
action must either do something or refrain from doing something. Once
the Court makes its decision, the parties must abide by the ruling. If the
party fails to adhere to the injunction, there can be stiff monetary
penalties and even imprisonment in certain instances.

Governing Law :

The law of injunctions is covered explicitly under various Relief Acts and is
implemented in accordance with the Civil Procedure Code. On a precise
note, the laws pertaining to this provision are included in Section 151 and
Section 94 of the Code.

Specific Relief Act, 1963 is an act to provide specific Relief in deserving

cases. In Civil Law, legal remedies are for enforcing primary rights or for
enforcing secondary rights. When there is a breach of contract, if the
Court orders specific performance in favor of innocent party, this is in
nature of enforcement of a primary rights. If Court orders for payment of
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compensation against damage this is enforcement of secondary rights of

parties. The Specific Relief Act, 1963 is to protect and enforce primary
rights of parties.

The following types of Injunctions are granted by the Court under the
provisions of the Specific Relief Act, 1963 :

1. Temporary and Permanent Injunctions ( Sections 36 & 37)

2. Perpetual Injunctions ( Section 38)
3. Mandatory Injunctions ( section 39)
4. Damages in lieu of or in addition to Injection( Section 40)
5. Injunction to perform a negative covenant( section 42).

Preliminary Injunction : A preliminary injunction, which is also known as

an ad-interim injunction, is assigned to a plaintiff prior to a trial. It is

enacted to preserve the subject matter in its existing condition so as to

prevent any dissolution of the plaintiff’s rights, and thereby render him/her

the possibility of immediate relief.

Preventive Injunctions : A preventive injunction is an adjudication that

forces an individual to abstain from doing an action that is preventive,

prohibitive or negative. The injunction is intended to prevent a threatened

injury, preserve the status quo, and reserve the continued commission of

an ongoing wrong.

Mandatory Injunction : Considered as the most rigorous of all injunctions,

a mandatory injunction directs the defendant to perform an act. For

example, if a Court orders the removal of a building or structure due to

misplaced construction, then it fits the description of a mandatory

injunction.
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Temporary Restraining Order : A temporary restraining order is just what

its name suggests, as the same is valid until the period of restraining
order draws to a closure. The Court grants it to preserve the status quo of
the subject of the controversy until the hearing of an application for a
temporary injunction. Through it, it also seeks to prevent any instance of
unnecessary and irreparable injury.

Permanent Injunction : A permanent injunction, which is issued at the time

of final judgment, is meant for granting a final relief to the applicant. These
injunctions remain constant if the conditions that produced them are
permanent.

Requisites of an Application for Injunction :

An application for injunction must be furnished if :

 The petitioner has a strong prima-facie case, which has the potential
to succeed.
 The balance of the convenience or that of inconvenience is in favour
of the petitioner,
 Non-granting of a temporary or permanent injunction would force
the petitioner to suffer an irreparable damage.

MANDATORY INJUNCTION

Mandatory Injunction : (Section 39 of the Specific Relief Act, 1963)

At times it so happens that, in order to prevent the breach of an

obligation, it is necessary to compel the performance of certain acts

which the Court is capable of enforcing. In such case the Court may in its

discretion , grant an injunction (i) to prevent such breach , and also (ii) to

compel the performance of the requisite acts.

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 Thus, mandatory injunctions granted

o so as to prevent the breach of an obligation
o when there is a necessity to compel the performance of
certain acts,
o then a competent Court may enforce the obligation
o as a discretionary relief.

This relief is applicable to the breach of any obligation, whether arising

out of a contract or tort. It may be perpetual or temporary, though in rare

cases that of temporary injunction of this nature will be issued.

An injunction is, in its nature, prohibitory. The defendant is first called up

to restore the place to the position in which it was before the act was

done, and then he is restrained , when he has so restored it, from doing

anything in respect of it which would be breach of obligation on his part.

The object in every case is to compel the defendant to restore things to

their former condition. This type of injunction will be granted to prevent

more injury and damages to the plaintiff.

Lane V New gate, a lased his land to B for erecting a mills and bound

himself to supply water thereto from canals and reservoirs on his own

land. An impeded the enjoyment of water by B, by keeping works out of

repair by the use of locks, and by removing the stop-gate. B asked for an

injunction which was granted. In this case an affirmative covenants were

enforced.
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PRINCIPLES OF MANDATORY INJUNCTION

AND
THE RELEVANT CASE LAW:

Essential conditions for granting of mandatory injunction are:

1. There must be an obligation on the part of the defendant to

perform certain acts the breach of which obligation, must be alleged
by the Plaintiff.

2. Relief must be enforceable by the Court.

Section 39 of the Specific Relief Act, 1963 does not define but

categorically deals with grant of mandatory injunction. Two elements have

to be taken into consideration to determine the grant of mandatory

injunction, these are: (a) What acts are necessary in order to prevent a

breach of the obligation; and, (b) The requisite acts must be such as the

Court is capable of enforcing.

(Case law :Madho Singh v. Abdul Qaiyum Khan, AIR 1950 All 505; Khazan
Singh v. Ralla Ram, AIR 1937 Lah 839; Lakshi v. Tara, (1904) 31 Cal 944 )

Injunction is an equitable relief and it is a settled law that equity acts

in personam, therefore, injunction is a personal matter. The purpose of

mandatory injunction is to restore a wrongful state of things to their

former rightful order. Principal difference between prohibitory injunction

and mandatory injunction is that, in the former the defendant is prohibited

from doing a particular thing in a particular manner, whereas, in the latter,

the defendant is directed to do a particular thing and if he fails to do as

directed, the Court gets it done through its officers.

(Case law :Puran Chand v. Nityanand, AIR 1958 Punj 460)

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Mandatory injunction is not to be granted:

(a) Where compensation in terms of money would be an adequate relief to

the plaintiff;
(b) Where balance of convenience is in favour of the defendant;
(c) Where plaintiff has shown acquiescence in the acts of the defendant;
and,
(d) To create a new state of things, but rather to restore status quo.

In the case of, Dorab Cawasji Warden v. Coomi Sarab Warden

reported in AIR 1990 SC 867, the Hon’ble Supreme Court of India held
that, for grant of interim mandatory injunction the following test must be
complied with:

(a) The plaintiff has to demonstrate a strong case for trial, that is, it should
be of a standard higher than that of a prima facie case;

(b) The plaintiff has to lay-bare that the grant of mandatory injunction is
necessary to prevent irreparable loss or serious injury, which cannot be
compensated in terms of money; and,

(c) The balance of convenience is in favour of the plaintiff as against the

defendant. Mandatory injunctions are sometimes availed of as reliefs in
the nature of ‘quia timet’, that is, in a proper case, mandatory injunction
may be granted when there is a threat of infraction of the plaintiff’s right
before the infraction has actually occurred. (Case law :Meghu Mian v.
Kishun Ram, AIR 1954 Pat 477 ).

No Prohibition in granting interim mandatory injunctions in

appropriate cases. The Hon'ble Supreme Court held between Hammad
Ahmed Vs. Abdul Majeed observed that grant of interim mandatory
injunction is not prohibited, and it can granted in 'appropriate cases'.
Further the Hon'ble Supreme Court held that an ad-interim mandatory
injunction, is to be granted not at the asking but on the strong
circumstances so that to protect the rights and interests of the parties so
as not to frustrate their rights regarding mandatory injunction.
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SUIT FOR MANDATORY INJUNCTION LAUNCHED TO OUST THE

LICENSEE:

If an interest in the property is created by virtue of a deed, it is a lease,

but, if the document only permits another person to make use of the
property of which the legal possession continues with the owner, it is a
license.
(Case law:Udai Pratap Singh v. Collector, Varanasi,AIR 1991 All 104 (DB) )

Suit for mandatory injunction can be filed by the plaintiff-licensor to oust

the defendant-licensee after the expiry of the term of license.

In the case of, Sant Lal Jain v. Avtar Singh reported in (1985) 2 SCC

332, it was held that, where a licensor approaches the Court for an

injunction within a reasonable time after the license has terminated, then,

the Court shall be obliged to grant him injunction, however, if the licensor

causes huge delay, then, the Court may refuse to exercise its discretion

apropos the grant of injunction on the ground that, the licensor has not

been diligent and thus, in that case the licensor will have to institute a suit

for possession which in fact will be governed by Section 7(v) of the Court

Fees Act, 1870.

In the case of, Milkha Singh v. Diana reported in AIR 1964 J&K 99, it

was observed that the principle- ‘once a licensee always a licensee’,

applies to all kinds of licenses, and it cannot be said that the moment the

license is terminated, the possession of the licensee becomes that of a

trespasser, that is, a Suit for mandatory injunction and not a suit for

possession, will lie to oust the erstwhile licensee.

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TITLE OF THE PROPERTY IN A CLOUD OF DOUBT:

When a suit for mandatory injunction is instituted by the licensor against

the licensee to oust him of the suit property after the termination of the
license, then, it shall not lie in the mouth of the licensee to state that, a suit
for mandatory injunction is not maintainable because the title of the
property is in a cloud of doubt and what the licensor should have
preferred is a suit for possession and not mandatory injunction. Section
116 of the Evidence Act, 1872 categorically states that, a licensee
obtaining possession is deemed to obtain it upon the terms that he will not
dispute the title of the licensor who gave the possession to him and
without whose permission he would not have got the possession.
(Case law : Rupchand v. Sarbessur Chandra, (1906) 33 Cal 915: 10 Cal WN 747)

Two conditions are essential to enforce the estoppel contained in Section

116 of the Evidence Act, 1872, these are: (a) Possession of the property
must have been given to the licensee/tenant, and, (b) Such possession
must have been taken with the permission of the licensor/landlord. Once
these two conditions are fulfilled, the licensee/tenant becomes subject to
estoppel, and continues to remain subject to it so long as he remains in
possession of the property.
(Case law: District Board Tippera v. Sarafat Ali, 1941 C 403)

DELAY DEFEATS EQUITY:

In the case of, Joseph Severance & Ors v. Benny Mathews & Ors, reported
in (2005) 7 SCC 667 it was held that, licensee may be the actual occupant
of the property but the licensor is the person having control and
possession over the property through the licensee even after the
termination of the license. There can be varied situations such as those
whereby the licensee may require to keep the possession of the property
with himself for some time post the termination of the license so that he
can wind up his business; in such situations, the possession of the
property that the licensee keeps with himself so that he can wind up his
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business from the suit premises cannot be termed as an act of trespass.

But, on the other hand, there can be situations whereby despite the
termination of the license, the licensee retains the possession of the
property with himself and the licensor neither objects to it, nor takes
necessary steps to cause the eviction of the licensee with promptitude; in
such situations, the erstwhile licensee will be treated as a trespasser and
the licensor will have to come up with a suit for recovery of possession
and not mandatory injunction. Therefore, the position that entails in law
can be summed up by saying that, the possession of licensee does not
become hostile the moment the license comes to an end; none the less,
the licensor is required to file a suit for mandatory injunction to oust the
licensee with promptitude categorically praying that, the licensee should
be directed by the Court to vacate the suit property without delay.

PERMISSIVE OCCUPATION OR GRATUITIOUS LICENSEE:

If X, son of Y, starts living in the house of his father, that is, in the house of

Y with the permission of Y, and then later when Y requests X to vacate the

possession, it shall not lie in the mouth of X to claim ownership in the

property by reason of the fact that, X is the son of Y and has been residing

in the house of Y in the capacity of the son of Y. It shall be open to Y to

bring an action by way of suit for mandatory injunction against X to cause

his vacation from the subject property and at best the possession that X

enjoyed will be termed that of ‘permissive occupier’ or ‘gratuitous

licensee’.

(Case law :Delhi Gate Services Pvt. Ltd. v. Caltex (India) Ltd., AIR 1962 P &
H 370; Mulk Raj Khullar v. Anil Kapur & Ors, CS (OS) 1855/2011, Decision
Dated: 03.10.2013, High Court of Delhi (Jayant Nath, J.) ).
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CONVERTING A SUIT FOR MANDATORY INJUNCTION INTO A SUIT FOR

RECOVERY OF POSSESSION:

Where the defendant-licensee contests the suit for mandatory injunction

filed by the plaintiff-licensor taking prima facie objection that, only a suit
for recovery of possession can sustain and not mandatory injunction on
the ground that, the possession that defendant-licensee enjoyed was
neither hostile, nor intolerant, further, despite the lapse of license no swift
action was taken to cause the eviction of the licensee; then, taking into
account the facts and circumstances of the case and to do complete
justice between the parties to the case, the Court can direct the
conversion of the suit for mandatory injunction into a suit for recovery of
possession to avoid multiplicity of proceedings and to save the plaintiff-
licensor from incurring extra cost, trouble and disbursement, subject to
payment of the extra attendant Court-fee as is leviable apropos a suit for
recovery of possession according to the value of the property forming the
subject-matter of the suit for recovery of possession. Merely because the
plaint is couched in terms of ‘suit for mandatory injunction’ and not ‘suit
for recovery of possession’, the necessary relief cannot be denied to the
plaintiff-licensor.

Registration of Sale deed: Sec.39 - In a Suit for mandatory injunction by

tenant, no direction can be given to landlords to execute a registered sale
deed in respect of property given on lease as such a relief can be sought
only in a Suit for specific performance of an enforceable agreement
between the parties.
(Case law: Abdul Nabi Chowdary Vs.Mohd.Ismail @Kaleem and others
reported in 2012 (1) ALT 249).

Sec 39: CPC, 1908 Sec.100 - Correction of date of birth in service records
- Direction by way of mandatory injunction cannot be granted for the
reason that it would amount to directing the University to violate the
Proceedure that is to act in violation of law which is not permissible. (Case
law : Tallapragada Narasimhamurthy Vs. Director, School Education, A.P
and another reported in 2003(4) ALT 670).
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Relief must be enforceable by Court:

A mandatory injunction can be granted where the Court can enforce it.

Where the injunction is not enforceable, the Court would not grant it.

Thus, a mandatory injunction directing a person to undertake the repairs

and work of improvement involving engineering skills and expenses

cannot be granted as the Court is not capable of enforcing it.

Parties to be affected must be impleaded:

The Court has essentially to adjudge if plaintiff's cause has any basis and

whether the prayer made can lawfully be granted. Court has to see

whether effective decree could be passed in the terms prayed for only

against the persons or parties arrayed as defendant where such persons

were deleted or were not impleaded as co-defendants. Plaintiff could not

succeed in his cause even if he had a genuine grievance and a justifiable

basis for his claim.

Exparte Mandatory injunction:

The law permits granting exparte mandatory injunction under Rule 13 of

Order 39 CPC and the Court is required to record and mention specific

circumstances due to which it was necessary to grant mandatory interim

injunction and give a finding that the prima facie cause of a higher

standard and the Plaintiff had a strong case for trial, balance of

convenience and irreparable loss. In absence of any reason, the Order

cannot be sustained as it is in teeth of specific provision of law.

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Mandatory injunction Vis-A-Vis 'Specific performance' :

The question as to the difference between mandatory injunction and

Specific performance is complex question which puzzles any legal mind

since both are one and the same in a way and they are known as

remedies as opposed to causes of action. But, the difference between

them is specific performance is a remedy based in contract law, but an

injunction is a remedy that covers a much broader spectrum.

Whether damages can be granted in lieu of mandatory injunction:

As per S.40 of the Specific Relief Act, 1963 the Plaintiff in a Suit for

perpetual injunction or mandatory injunction, may claim damages either

in addition to, or in substitution for, such injunction and the Court may, if

it thinks fit, award such damages. Further no such relief for damages

shall be granted unless the Plaintiff claimed such relief in his plaint.

The relief of mandatory injunction is discretionary, and where the

Court in its discretion declines to grant the injunction, the Court has

jurisdiction to award damages.

VALUATION OF SUIT FOR MANDATORY INJUNCTION:

According to Order VII, Rule 1(i) of the Code of Civil Procedure,

1908, the plaint must contain a statement of the value of the subject-

matter of the suit for the purposes of jurisdiction and Court-fees, so far as

the case admits. In the case of, Ram Narain Prasad v. Atul Chander Mitra
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reported in (1994) 3 SCR 196, it was held that, valuation for the purposes of

Court-fees must be made on the basis of the averments contained in the

plaint and the relief sought thereof, and the averments contained in the

written statement are not material in this regard.

In the case of, Padmavati Mahajan v. Yogender Mahajan & Anr

reported in 152(2008) DLT 363 , it was held that, a suit for permanent

mandatory injunction can be valued by the plaintiff exercising his or her

discretion, subject to the caveat that the said discretion is neither

whimsical, nor fanciful; a suit for permanent mandatory injunction is not

required to be valued at the market value of the property.

Execution of Mandatory Injunction:

As per Article.135 of Limitation Act, the limitation for execution of

Mandatory injunction is 3 years from the date of decree.

The wordings of Order XXI Rule 32(1) of the Code of Civil Procedure

indicate that for the purpose of enforcement of a decree for injunction, a

Judgment debtor can either be put in civil prison or his property can be

attached or both the above said means can be resorted to. Order XXI rule

32(5) of CPC indicates that the Court can direct the judgment debtor to

perform the act required in the decree or the Court can get the said acts

done through some other person appointed by the Court at the cost of the

Judgment debtor.
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C O N C L U S I O N:

The jurisdiction to issue mandatory injunction is discretionary jurisdiction

which can be exercised only in case which falls strictly within four corners
of provisions enumerated under Sec.37 to 41 of the Specific Relief Act,
1963.

The following age old canons in equity law are to be borne in mind while
considering the subject prayers:

(a). One who seeks equity must come with clean hands.
(b). One who seeks equity must do equity.
(c). "Ubi jus ibi remediam"- where ever there is right there is remedy.
(d). Where equities are equal, the law will prevail.
(e). Equity follows the law.
(f). Equity aids the vigilant, not those who slumber on their rights.

In conclusion, the Injunctions are not a matter of right but a

complete discretion of the Court. The Court thus acts judicially as per

facts of each case before granting an injunction. The Supreme Court has

also observed that the jurisdiction to grant an injunction under the Act is

discretionary and must be exercised according to sound principals of law,

and ex debito justito. The plaintiff cannot claim this relief as a matter of

right. Before refusing or granting the injunction, the Court must weigh the

pros and cons in each case, consider the facts and circumstances in their

proper perspectives, and then exercise its discretion in the best interest

of justice.

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