Law on granting Interlocutory Mandatory Injunction

Preface:
Arguably the principle of granting mandatory injunctions at interlocutory stage is often fraught with apparent uncertainties. The relief of mandatory injunctions are granted generally to preserve / restore the status quo of the last non-contested status to their former rightful order until the final hearing of the case, when full relief may be granted by the concerned court. Section 39 of the Specific Relief Act, 1963 categorically deals with the grant of mandatory injunction. Since such mandatory injunctions are granted only under exceptional circumstances, courts have laid down certain provisions of caution that require to be met before an interlocutory mandatory injunction is granted. Reason being, granting of such interlocutory mandatory injunction may cause great injustice or irreparable harm to the party against whom it was granted or alternatively when not granted, to the party who succeeds or who would succeed. Therefore, it can be said that interlocutory mandatory injunction may only be granted where there is a threat of violation of the plaintiff’s right even before such violation has actually occurred.

Mandatory injunction when granted at an interlocutory stage:
Generally, mandatory injunctions act as reliefs of ‘qua timet’ and has the effect of ordering the defendant to either do a positive act with a view of putting an end to a wrongful set of things engineered by them or in fulfilment of their legal obligation. However, such mandatory injunction is not granted where the monetary compensation is an adequate relief to the plaintiff or where the balance of convenience is in the favour of the defendant or where the plaintiff has shown considerable acceptance of the acts of the defendant or to create a new state of things, but rather to restore status quo.

Legislative and Regulatory framework backing interlocutory mandatory injunction

The uncertainty on granting of mandatory injunction at interlocutory stage began as early as 1914, where in Rasul Karim & Anr. v. Pirubhai Amirbhai1, Justice Beaman took the view that the courts in India have no capacity to issue a temporary injunction in the form of a mandatory injunction. It was Justice Shah, who constituted a Bench in that case, who took a rather contradictory view. However, it was in Champsey Bhimji & Co v. The Jamna Flour Mills Co. Ltd2 , that the Division Bench of the Hon’ble Bombay High Court took a contrasting view as against Justice Beaman.

In the case of Samir Narain Bhojwani V/s Aurora Properties & Investments & Anr3, the Hon’ble Apex Court held that an interim mandatory injunction is not a remedy that is easily granted. Rather, it is an order which is passed only in circumstances where the prima facie material clearly justifies a finding that the status quo has been altered by one of the parties to the litigation and the interest of justice demands that the status quo be restored by way of an interim mandatory injunction.

The Hon’ble Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden & Ors4, held that

“16. 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:

  1. The plaintiff has a strong case for trail. 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.”

The Hon’ble Supreme Court further went on to say that,
“17. 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 nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”

Therefore, it can be seen that the Hon’ble Supreme Court has vide Dorab Cawasji Warden’s judgement observed that the grant of interim mandatory injunction is not prohibited, and that it can be granted only in 'appropriate' cases.

Pursuant to the said test, following are few of the judicial instances wherein the courts have granted mandatory injunction at interlocutory stage:

Hammad Ahmed v. Abdul Majeed & Ors.5
In the given case the Hon’ble Apex Court while granting mandatory injunction at interlocutory stage held that unless clear and prima facie material justifies a finding that status quo has been altered by one of the parties, the order in mandatory injunction can be given. Further, it also placed reliance on the Dorab Caswaji Warden’s judgement and held that the ad-interim mandatory injunction is to be granted not at the specifically asking but based on the circumstances of each case so as to protect the rights and interest of the parties and not frustrate their rights regarding mandatory injunction. Therefore, the Hon’ble court while granting the interim mandatory injunction sought for by the Plaintiff, noted the balance of convenience in favour of the Plaintiff and directed the Defendants to handover the password of the domain name for discharging the duties of Chief Mutawalli of Hamdard Laboratories (India) which was claimed by both the parties.

Vishal Gupta v. L and T Finance Limited6
In the said case, the Plaintiff filed the present case against his employer seeking declaration that he was entitled to a letter relieving him from the Defendant and also for permanent mandatory injunction directing the Company to issue a relieving letter and other reliefs qua damages.

The Hon’ble court while granting interlocutory mandatory injunction held that the rule that a Court cannot grant an interim relief that would amount to grant of the final relief at the interlocutory stage is not an inflexible one and that the same would depend on the facts of every case. Therefore, the Hon'ble Court issued an interlocutory mandatory injunction and granted the relief which was sought as final relief in the suit.

Baban Narayan Landge v. Mahadu Bhikaji Tonchar & Ors.7
In the said case, the Hon’ble Bombay High Court was faced with the question as to whether civil courts have jurisdiction to issue an interlocutory mandatory injunction so as to restore the status quo anterior to the date of institution of a suit?

Whilst dealing with other things, the Hon’ble High Court held that injunctions are a form of equitable relief, and they have to be adjusted or moulded in aid of equity and justice to the facts and circumstances of every case. It further went on to say that the power to issue mandatory injunction at an interlocutory stage is not to be exercised lightly or commonly. Rather, it can be issued only in case of compelling circumstances and mostly in those cases when the status quo existing on the date of the institution of the suit is to be restored.

Conclusion:
Therefore, after going through all the above case laws, one can understand that the test as stated in Dorab Cawasji Warden’s judgement is general and flexible depending on the facts and circumstances of each and every case. It is a well-known fact that an injunction is an equitable remedy, wherein the one who seeks equity must also do equity. Granting of such interlocutory mandatory injunction is entirely the discretion of the court, though such discretion is expected to be sound and reasonably guided by Judicial Principles.

  1. Rasul Karim & Anr. v. Pirubhai Amirbhai, AIR 1914 Bom 42 : ILR (1914) 38 Bom 381
  2. Champsey Bhimji & Co v. The Jamna Flour Mills Co. Ltd., AIR 1914 Bom 195
  3. Samir Narain Bhojwani V/s Aurora Properties & Investments & Anr., (2018) 17 SCC 203: (2019) 2 SCC (Civ) 257
  4. Dorab Cawasji Warden v. Coomi Sorab Warden & Ors., (1990) 2 SCC 117
  5. Hammad Ahmed v. Abdul Majeed & Ors., (2019) 14 SCC 1: (2020) 1 SCC (Civ) 475
  6. Vishal Gupta v. L and T Finance Limited., CS (OS) 2309 of 2009 & IA No. 13399/08
  7. Baban Narayan Landge v. Mahadu Bhikaji Tonchar & Ors., 1989 Mah LJ 146: AIR 1989 Bom 247
Dated: June 9, 2021
Author: Burzin Bharucha, Associate Partner

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