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1981 Supreme(Del) 118
High Court Of Delhi
BALDEV RAJ - Appellant
Versus
SAVITRI BAI - Respondent
Civil 99 of 1981
Decided On : 03/24/1981
N.S.SISTANI, VINOD SRIVASTAVA
A temporary mandatory injunction can be issued in rare cases when there are compelling circumstances, such as extreme hardship or irreparable injury to the plaintiff, and when the balance of convenience favours the plaintiff.
Headnote:
INJUNCTION - TEMPORARY MANDATORY INJUNCTION - ORDER 39 RULES 1 AND 2, CODE OF CIVIL PROCEDURE, 1908 - PRINCIPLES FOR GRANT - EXTREME HARDSHIP - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - STATUS QUO - RESTORATION.
Fact of the Case:
Plaintiff filed a suit seeking a mandatory injunction to demolish a wall constructed by the defendant, which blocked the access to her flat. The trial court rejected the application for a temporary mandatory injunction, but the lower appellate court granted the injunction, directing the defendant to make an opening in the wall and construct a wall to separate the flats during the pendency of the suit.
Finding of the Court:
The court held that a temporary mandatory injunction can be issued in rare cases when there are compelling circumstances, and that the issuance of the same cannot be confined to only one situation of restoration of state of affairs as existing on the institution of the suit. The court found that there was extreme hardship to the plaintiff because there was no access to her flat at all and the same was lying absolutely blocked on account of the construction of the wall in question by the defendant.
Issues: 1. Whether a temporary mandatory injunction can be issued as an ad interim measure during the pendency of the suit? 2. Under what circumstances can a temporary mandatory injunction be issued?
Ratio Decidendi: The court relied on the principles laid down in Shirang Padmanabh Porob Dessai and another v. Mariana Francisco Jacques, A. I. R 1975 Goa, Daman and Diu 23, where a mandatory injunction was granted to remove a wall which was blocking a sewage and flow of rain water. The court held that a mandatory injunction could be granted in exercise of inherent powers under Section 151 of the Code of Civil Procedure, 1908 for removing a wall which was blocking the access to the plaintiff's flat.
Final Decision: The court dismissed the revision petition and upheld the order of the lower appellate court granting the temporary mandatory injunction.
( 1 ) MAIN question involved in the present revision petition under section 115 of the Code of Civil Procedure (in short code), which is directed against an order dated January 23, 1981 of Shri R. C. Chopra, Senior Sub Judge, Delhi, is as to whether a temporary mandatory injunction can be issued as an ad interim measure during the pendency of the suit and if so under what circumstances ?
( 2 ) IN Jangpura Extension Market, New Delhi, there is one block of building consisting of 10 shops on the ground floor and 10 flats on the first floor. There is one flat on every one of the shops. Flats are numbered as 1 to 10 and likewise shops are also numbered as 1 to 10. There is common stair case for approach to flats Nos. 1 and 2. There is another common stair case for approach to flats Nos. 5 and 6 and yet another one for approch to flat Nos. 7 and 8. There is no stair case for reaching flat Nos. 3 and4as well as flats Nos. 9 and 10. Flat No. 4 belongs to the plaintiff-respondent (hereinafter referred to the plaintiff ). Flat No. 5 belongs to defendant petitioner (hereinafter referred to as the defendant.)
( 3 ) ACCORDING to the plaintiff she has been having access to flat No. 4 through flat No. 5, which was obstructed in the middle of Maich and thereafter on. April 7, 1. 980 was blocked by constluction of wall, shown as CD in red colour in the plan attached with the plaint. Therefore) she biought a suit praying for the following reliefs :-
(A) a decree for mandatory injunction directing the defendant to demolish and remove the wall shown in red colour in the site plan at point CD and to raise the old existing wall shown in green colour at point FD thereby to restore the said premises in its old original condition so as to give free access to the plaintiff to her flat through the balcony and staircase.
(B) a decree for perpetual injunction restraining the defendant, his agents, and employees from creating any obstruction to the plaintiff s access to her flat through the balcony and staircase.
( 4 ) ASSLERTIONS of the plaintiff are as follows. Entire block of building belonged to the Rehabilitation authorities. Office of the Regional Settlement Commissioner, Jam Nagar House, New Delhi allotted flat No. 4 to Dr. Roshan Lal and executed a sale deed in the year 1960 in favour of the latter. Flat No. 5 was similarly allotted to one Nannu Mal. Dr. Roshan Lal used to have passage to his flat No. 4 through an open space in flat No. 5. In the year 1962 Nannu Mal tried to construct a wall for obstructing that. passage. Dr. Roshan Lal complained to Rehabilitation Authorities. After a lot of contest it was ultimately decided by the said authorities that Dr. Roshan Lal had right to have passage through flat No. 5 for access to flat No. 4. Thereafter there was also civil. litigation and ultimately there was a compromise. It was provided that a balcony would be constructed in which toilet of flat No. 5 would have a curve in the wall so as to give access to the occupant of flat No. 4 through aforesaid balcony. That compromise was acted upon, construction was made accordingly and Dr. Roshan Lal, had been using the passage from flat No. 5 for acces to flat No. 4.
( 5 ) DETAILS of contest before the Rehabilitaion Authorities and contest in the civil proceedings are, given in the plaint but the same are not being mentioned here because) those will be necessary at the final decision, of the case and not at this stage of issue of temporary injunction.
( 6 ) PLAINTIFF purchased flat No. 4 from Dr. Roshan Lal while defendant purchased flat No. 5 from Nannu Mal: As already mentioned defendant removed curved wall of toilet in the balcony of flat No. 5 and constructed a wall with a view to obstruct passage giving approach to flat No. 4. That necessiated the suit.
( 7 ) PLAINTIFF brought an application dated May 19, 1980 for issue of temporary mandatory injunction directing the defendant to demolish wall shown as CD in the plan attached with the plaint
