Courts have the power to grant a mandatory injunction pending trial of the suit under Order 39 of the Code of Civil Procedure.

( 1 ) THE Subordinate Judge at narasaraopet on appeal directed the defendant (the revision petitioner or herein to restore a spout at point in the plaint plan and the defcndant was restrained from interfering with that device pending suit. That order is attacked in the revision petition as having been passed by the Court in excess of juisdiction and void. It is argued such an crc er pending the trial determines the issue fimally and leaves nothing more to be decided ard in an interlocutory application the court ought not to have passed such an order which amounts to prejudging the issue in the suit.

( 2 ) THE plaintiff alleged the defendant removed the spout at point V and closed the hole which results in the obstruction of rain water. Therefore pending the suit a mandatory injunction was sought to restore the spout to its quondam position. The District Munsif dismissed the interlocutory petition on the consideration of convenience but in appeal the petition was ordered.

( 3 ) THE question at issue is whether courts have the power to order such mandatory injunction power trial of the suit.

( 4 ) IN England there was a doubt about such a power prior to the passing of Judicature Act. Such doubts were far removed under section 25 of the Judicature Act of 1975. The dicta in cases decided prior to the Judicature Act do however show the existence of such power. In Robinson v. Lord Byron by a prohibitory order Lord Byron was directed as an interim measure not to overflow or starve the plaintiff s mill by the use of sluice and dams under his control pending the trial of the suit.

( 5 ) IN Allport v. Security Co. Ltd. the defendant was directed in the building to reconstruct the staircase pending trial.

( 6 ) IN Hervey v. Smith a contrivance on a partv-wall to let out flues for smoke the defendant was interdicted by an order cf the Court to remove the obstructing tiles installed. The Equity Courts in England thus even before the Judicature act understood tc have had power to grant relief in interlocutory application. In recent times Lord Uthwalt said in the case of Winger Garden Thetre Ltd. v. Millennium products Ltd. in the contextof equity observed "in a Court of equity wrongful acts are no passport to favour. "

( 7 ) IN India such a power to grant under order 39 of Code of Civil Procedure was not doubted. In Kandaswami v. Subramania a Division Bench rf the Madras high Court held under Order 39, rule 2, of the Code of Civil Procedure the Courts have power to issue temporary in junction. In Israil v. Rahman a part rf building constructed after the knowledge of injunction was directed to be pulled down. In Govardhan Singh v. Mulkh Rai, a portion of the business premises was directed to be demolished ard reconstructed. Instances thus are legion ard I do rot wish to burden the judgment with more of them.

( 8 ) THE order in appeal shows the circumstances which impelled the appellate court to pass the directions and I see no reason to interfere with the order passed by the lower Court. The Civil Revision petition is, therefore dismissed no order as to costs. Civil revision petition dismissed.

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