suit for a prohibitory injunction must be brought for preventing the commission of a future wrong.

2021 ICO 80 High Court of Kerala Decided on 03-02-2021 Justice T V Anil Kumar Anil Kumar,Ors Vs. K Rajendran

Case Numbers : O.P.(C). No.164 of 2021

Equivalents : 2021 (1) KHC 766 :: 2021 (2) KLT 376 :: ILR 2021 (1) Ker. 1013 :: 2021 (2) KLJ 416

For Petitioners: R Sunil Kumar (Adv.), A Salini Lal (Adv.)

For Respondent : Riji Rajendran (Adv.), Surya Binoy (Adv.), Mitha Sudhindran (Adv.)

Headnotes

A. Specific Relief Act, 1963 - Sections 38 and 39 - Purport, scope and distinction between suits instituted for decree of prohibitory injunction and mandatory injunction – Examined. (Paras 15 and 16)

B. Specific Relief Act, 1963 - Sections 38 and 39 - Whether a suit for prohibitory injunction is maintainable for removal of wrong committed before the suit? Held; suit for prohibitory injunction must be brought for preventing commission of a future wrong. Once the wrong has already been committed, then the possible way of preventing continuance of the wrong done is to sue for a decree of mandatory injunction directing removal of the wrong committed before the suit. It will be a futile exercise for a person affected by such wrong, to sue for a decree of prohibitory injunction and hope to get a final relief. The court cannot grant any order of temporary injunction in such as suit since on the date of the suit itself, the cause of action for a preventive relief already ceases to exist. A suit claiming a preventive relief in similar circumstance is itself not maintainable also. (Para 17)

C. Code of Civil Procedure, 1908 - Order XXXIX Rule 1 and 2 - Power to order temporary injunction - Parameters to be considered by the courts for issuing interim reliefs requisite for preserving the subject matter during the pendency of the suit are existence of prima facie case, balance of convenience and irreparability of loss. (Para 18)

D. Code of Civil Procedure, 1908 - Section - Order XXXIX Rule 1 and 2 - Tests to be followed by the courts while considering plea for issue of temporary prohibitory injunction and temporary mandatory injunction - Discussed - The plea for issue of temporary prohibitory injunction and temporary mandatory injunction is commonly tested on the touchstone of prima facie case, balance of convenience and theory of irreparability of injury, the rigour of the test to be followed in both proceedings is, however, different. The prima facie case to be satisfied in a proceedings for temporary prohibitory injunction is whether a bona fide substantial question which needs investigation as well as decision on merits, exists in the suit. But a mere establishing of a bona fide substantial question will not satisfy the test of prima facie case for granting a temporary mandatory injunction. The prima facie case made out in such proceedings must be so strong and unusually clear that the suit has a high probability of success. (Para 19)

E. Code of Civil Procedure, 1908 - Section - Order XXXIX Rule 1 and 2 and Specific Relief Act, 1963 - Sections 38 and 39 and Constitution of India, 1950 – Article 227 - Power of court to restore the state of affairs to a position anterior to suit by issue of an interim mandatory injunction cannot be exercised in a suit for a decree of prohibitory injunction. (Para 21)

F. Code of Civil Procedure, 1908 - Order XXXIX Rule 1 and 2 - Whether Court has power in a suit instituted for permanent prohibitory injunction to issue temporary mandatory injunction directing the defendants in the suit to put the property in dispute back to its original position as it existed anterior to the suit? Held; Court is not empowered to issue an interim mandatory injunction for restoration of status quo ante to a period prior to the date of suit, in suits brought otherwise than for a decree of mandatory injunction. (Para 23)

Full Judgment

JUDGMENT

T V Anil Kumar,J.

1. The concurrent orders of interim mandatory injunction issued by two courts below in a suit for prohibitory injunction directing restoration of status quo ante as it existed prior to the date of institution of the suit, are assailed by defendants in this original petition filed under Article 227 of the Constitution of India.

2. The legal question that arises for consideration is whether court has power in a suit instituted for permanent prohibitory injunction to issue temporary mandatory injunction directing the defendants in the suit to put the property in dispute back to its original position as it existed anterior to the suit. 3. The petitioners/defendants are owners of plaint 'B' schedule item Nos.1 and 2 in the suit. The sole respondent/plaintiff owns plaint 'A' schedule 50 cents. The parties purchased respective portions of land from common owners. The plaint 'A' and 'B' schedule properties lie respectively on the eastern and western sides of plaint 'C' schedule pathway which measures a width of 3.7 meters.

4. The existence of 'C' schedule pathway is undisputed by parties. The 'C' schedule lies in north-south direction forming part of the pathway which starts from the public road on the south.

5. The respondent claims that after plaint 'A' schedule property was purchased in 1993, he put up eight feet wide gate on the western boundary of his property for access to his land from plaint 'C' schedule and acquired by long user,a right of easement by prescription. It is said that he recently widened the existing entrance of 'A' schedule to 15 feet and put up a new iron gate.

6. Allegation against the petitioners is that they put up 'D' schedule wall made of hollow bricks in 'C' schedule at a height of five feet covering the new gate and blocked the respondent's entry to and fro the plaint 'A' schedule. Consequentially, the respondent was forced to file the instant suit for permanent prohibitory injunction on 10.03.2020 for a decree restraining the petitioners from committing mischief to the newly installed iron gate and further interfering with his right to use plaint 'C' schedule pathway. He specifically contended that the unauthorised wall was put up on 02.03.2020, a week anterior to the date of suit.

7. The petitioners filed written statement as well as a counter claim admitting erection of 'D' schedule wall which, according to them, was quite necessary to protect their alleged exclusive right of user of plaint 'C' schedule acquired by grant as borne out from the title deeds taken in their names.

8. They also contended that respondent did not have any lawful right to use 'C' schedule pathway and at no point of time, any gate or entrance existed on the western side of plaint 'A' schedule. The entrance was created a few days prior to the date of institution of suit and 'D' schedule construction was put up in exercise of their lawful right.

9. In the trial court, a commission was taken out simultaneously with institution of the suit and the Commissioner noticed the age of 'D' schedule construction to be a week old. This is not a disputed fact between parties. It is quite relevant to note that the age of 'D' schedule wall alone was inspected and reported. The age of construction of the entrance was neither inspected nor sought to be reported. It is also a matter of fact that respondent owns substantial extent of land close to the southern side of plaint 'A' schedule and to the immediate east of the pathway which starts from the southern public road and joins plaint 'C' schedule. That looks to be one of the reasons as to why the respondent has not chosen to claim a right of easement by necessity.

10. The respondent filed a petition before the munsiff court for issue of temporary mandatory injunction directing the petitioners to remove 'D' schedule construction and restore 'C' schedule to its original position as it stood a week prior to the institution of the suit.

11. The petitioners also filed a similar petition for temporary mandatory injunction seeking issue of direction against respondent to remove the newly erected iron gate fixed in his compound wall and to restore the boundary wall to its original position.

12. The learned Munsiff after examining the contentions of parties found that prima facie case and balance of convenience existed in favour of the respondent and rejected petitioners' contention that court did not possess the power, in a suit brought for prohibitory injunction, to issue interim mandatory injunction and call upon parties to suit to undo a mischief which was allegedly committed anterior to the suit. In rejecting this contention, the court below relied on J.James v. Jaimon James [1998 (1) KLJ 281 :: 1997 ICO 4102].

13. Though the petitioners challenged the impugned order passed by the learned Munsiff, it was only confirmed by the learned Sub Judge in appeal endorsing the same view. That is how the legality of Exts.P7 and P8 orders passed by the courts below, have now come to be challenged before this Court.

14. In order to address the legal question posed in this proceeding, it is quite necessary to comprehend the true purport, scope and distinction between the suits instituted for decree of prohibitory injunction and mandatory injunction, in the light of the statutory provisions in Chapter VIII of the Specific Relief Act, 1963(for short, 'the Act') and also Order XXXIX Rules 1 and 2 of the Code of Civil Procedure,1908(for short, 'the CPC').

15. Looking at Sections 38 and 39 of the Act, it is obvious from these provisions that decrees for prohibitory and mandatory injunction are issued by courts for the purpose of preventing commission of breach of legal obligation existing in favour of the suitor when the defendant invades or threatens to invade former's right to or enjoyment of property.

16. Though prevention of breach of legal obligation is the objective underlying both the suits, what distinguishes each other is the nature and scope of relief which the court is legally empowered to grant in such suits. The prevention of breach of legal obligation could be made by the court either by forbidding a future action from happening or by compelling performance of positive acts which the court is capable of enforcing.

17. In order that the commission of a future wrong is prevented, suit for prohibitory injunction must be brought ahead of such apprehended wrong. Once the wrong has already been committed, then the possible way of preventing continuance of the wrong done is to sue for a decree of mandatory injunction directing removal of the wrong committed before the suit. It will be a futile exercise for a person affected by such wrong, to sue for a decree of prohibitory injunction and hope to get a final relief. The court cannot grant any order of temporary injunction in such as suit since on the date of the suit itself, the cause of action for a preventive relief already ceases to exist. A suit claiming a preventive relief in similar circumstance is itself not maintainable also.

18. A close reading of Order XXXIX Rules 1 and 2 of the CPC demonstrates that the court derives power to order temporary injunction, whether prohibitory or mandatory from these provisions. They equip the court with all the powers to make such orders as are necessary for prevention of commission of wrongful acts in relation to the property in dispute in the suit. The interim reliefs requisite for preserving the subject matter during the pendency of the suit, are issued by following parameters as to the existence of prima facie case, balance of convenience and irreparability of loss.

19. Even though the plea for issue of temporary prohibitory injunction and temporary mandatory injunction is commonly tested on the touchstone of prima facie case, balance of convenience and theory of irreparability of injury, the rigour of the test to be followed in both proceedings is, however, different. The prima facie case to be satisfied in a proceedings for temporary prohibitory injunction is whether a bona fide substantial question which needs investigation as well as decision on merits, exists in the suit. But a mere establishing of a bona fide substantial question will not satisfy the test of prima facie case for granting a temporary mandatory injunction. The prima facie case made out in such proceedings must be so strong and unusually clear that the suit has a high probability of success. The hallmark decision in Dorab Cawasji Warden v. Coomi Sorab Warden and Others [(1990) 2 SCC 117 :: 1990 ICO 123] lays down the principles of law which courts have to essentially follow while considering the plea for issue of interim mandatory injunction. Paragraph Nos.16 and 17 of the said decision are extracted below:

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 injuries 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 been evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie cae 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.

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 injunction would be a sound exercise of a judicial discretion.

20. Both the courts below after being fully conscious that 'D' schedule construction was already completed a week prior to the suit, chose to order interim mandatory injunction directing removal of obstruction assuming that the courts did have power to order restoration of status quo ante as it existed prior to the date of suit. I find it very difficult to endorse the view taken by the courts below in the light of the legal discussion made above.

21. The power of the court to restore the state of affairs to a position anterior to suit by issue of an interim mandatory injunction cannot be exercised in a suit for a decree of prohibitory injunction. The court is of course, well within its own powers to issue interim mandatory injunction restoring status quo ante to a date prior to suit provided such a relief is claimed in a suit brought for a decree of mandatory injunction and further all necessary conditions as laid down in Dorab Cawasji Warden's case (supra) are established by the applicant in the proceedings. On the other hand, if such relief is claimed in a suit for prohibitory injunction and is granted, the court would be exceeding its own jurisdiction and enlarging the scope of the suit.

22. It is an accepted position of law that in a suit laid for prohibitory injunction, what cannot be granted as final relief in the suit cannot be granted as interim relief also. This, however, should not be understood to deprive the court's power in a suit for prohibitory injunction, to issue interim mandatory injunction to restore status quo ante as on the date of suit when in a particular case, the property in dispute is shown to be interfered with by the defendant during the pendency of the suit, whether it be in violation of an existing order of injunction or otherwise. This power to order status quo ante flows out of the inherent power vested in the court and it is liable to be exercised, with due regard to the happening of subsequent events in the suit with a view to setting things right and undoing mischiefs committed by the defendant. The court may exercise this power even suo motu provided necessary facts and materials justifying such exercise of power are brought on record in the suit.

23. What the courts below exercised in the instant case is not a power to restore status quo ante as it existed on the date of suit; but a power to reinstate state of affairs which pre existed the suit. The legal conclusion that emerges from the entire discussion above is that a court which has reason to order restoration of status quo ante to a period prior to the date of suit is not empowered to issue an interim mandatory injunction in suits brought otherwise than for a decree of mandatory injunction.

24. Having gone through J.James's case (supra) relied by the courts below, I am unable to find from the said decision that it intended to lay down a law different from what was discussed above. Since the courts below have failed to follow the legal principles adverted to above while passing Exts.P7 and P8 orders, I hold that they are liable to be set aside. It is incomprehensible as to how could have the existence of a prima facie case been found by the courts below in favour of the respondent when the suit was not, as a matter of fact, one brought for mandatory injunction. In the result, original petition succeeds and it is allowed setting aside Exts.P7 and P8 orders. However, I make it clear that this judgment will not stand in the way of the parties seeking to bring necessary amendments to their pleadings, if they so choose and in that event, it will be open to the learned Munsiff at the request made by the parties if any, to consider the applications before it over again on merits in accordance with principles of law aforementioned.

All pending interlocutory applications will stand closed.