DATE OF JUDGEMENT:
13/02/1990
CORAM
- Hon’ble Justice L.M. Sharma
- Hon’ble Justice V Ramaswami
PARTIES
- Petitioner: Dorab Cawasji Warden
- Respondent: Coomi Sohrab Warden & Ors
SUBJECT
This judgement addresses the issue of granting or refusing injunction and the risk of injustice that may follow due to such decision. 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.
OVERVIEW
The appellant along with his father and mother, were the joint owners of the suit property. In 1951, following the death of his mother, the appellant severed his and his father’s joint ownership in the suit property and agreed to hold it as tenants in common. On April 16, 1952, father transferred his half share in the suit property to his son, Sohrab.After Sohrab's death, his widow and minor sons sold their half share in the property to the fourth respondent on April 16, 1987.
The appellant filed a suit under Section 44 of the Transfer of Properties Act against the respondents. The respondents maintained that the property belonged to the family of the original owner and therefore the fourth respondent had no rights to the common enjoyment of the property.
The appellant also took out a motion in the suit which claimed that he was entitled to an interim injunction restraining the respondents from giving away the possession of the property. He also argued that the said relief is not granted, he will incur irreparable loss that cannot be compensated in any form of money.
The trial court ordered interim injunction but the 4th respondent had already taken possession of the property. The suit was resisted on the ground that they were not joint owners of the property, there had already been a partition with the result that Sohrab’s family were in exclusive possession of ground floor and a garage in the building.
The Court granted interim mandatory injunction to the effect that the fourth respondent and restrained his servants and agents from continuing to occupy or enjoy the property.
On appeal, high court held the plaintiff did not show a prima facie case that it would cause irreparable damage if the order granting the injunction was not granted. Case was appealed before Supreme Court.
RELEVANT PROVISIONS
- Section 39 – Mandatory injunctions- The object of a mandatory injunction is to restore plaintiff to the original condition and not create a new state of things. It is a most exceptional remedy applied with the greatest safeguard.
Two elements have to be taken into consideration.
- Court has to determine what acts are necessary in order to prevent a breach of the obligation.
- The requisite acts must be such as the Court is capable of enforcing.
ISSUES
- Whether the appellant is entitled to the injunction in a mandatory form directing the fourth respondent-purchaser to vacate the premises.
- Whether granting of injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction
ANALYSIS
The court held that the relief of mandatory interlocutory injunctions generally aims to preserve or restore the status of the last non-contested status that was preceded by the controversy. This type of injunction is not granted to parties who fail or would not establish their right at the trial as it may cause irreparable harm and injustice to the party against whom it was granted
Since an injunction is granted to a party who has failed or would not establish his right at the trial, it may cause irreparable harm to the party that was granted it or alternatively not granting it to a party that succeeds may cause same irreparable harm or great injustice.
Guidelines have been evolved by the courts to provide a level of protection from the irreparable harm.
- The plaintiff has a stronger case than a prima facie case. it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
- It is necessary to prevent a serious or irreparable injury which cannot be compensated in terms of cash.
- The balance of convenience favors the one seeking relief.
The present case is filed under Section 44 of the Transfer of Property Act. This Act restricts certain rights of the transferee from joint possession. Where one or more co-owners of an Immovable property is legally competent in that capacity, the transferee acquires, in such capacity, a share or interest in the property and transferor's right to joint possession and to enforce partition of the property subject to certain conditions affecting the share so transferred.
However, the transferee of a share of the dwelling-house is not entitled to any common or part of the house.
In considering the issue of interim mandatory injunction under section 44, the Court has toalso take into account the restriction on the rights of transferee to joint possession.
The court held that since the transferee has no right to reside in the dwelling house under second paragraph, the order restraining the sale of the property should be stayed as the entry of transferee could cause irreparable injury to the appellant and issued interim injunction in favor of vendor.
CONCLUSION
In order to be granted or refused an interlocutory mandatory injunction, the court should exercise its discretion in the light of the applicable facts and circumstances.Aforementioned guidelines are not exhaustive or complete, and may be subject to certain conditions. In some circumstances, applying them may be a sound exercise of a court's discretion.
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