1999 Supreme(Guj) 481

Gujarat High Court
Judgename :D.C.Srivastava
SAMPATRAJ C.SHAH - Appellant
Versus
LAJPATRAI C.AGRAWAL - Respondent
APPEAL FROM ORDER 182 of 1992
Decided On : 09/17/1999

Headnote:(a) Mandatory injunction — Grant of — Plaintiff has to establish a strong prima facie case and that the balance of convenience was in his favour and in case it is refused irreparable injury would be caused to plaintiff — Unless these three conditions are established no mandatory injunction can be granted.

       The law on the subject of grant of injunction namely prohibitory or mandatory is quite settled. For claiming prohibitory as well as mandatory injunction the plaintiff has to establish a strong prima facie case in his or its favour. The plaintiff is also to establish that the balance of convenience in granting injunction lies in his favour and in case the injunction is refused, irreparable injury would be caused to the plaintiff or the plaintiffs. Unless these three conditions are established no injunction, mandatory or prohibitory can be granted. If any of the three conditions is not fulfilled, injunction cannot be granted in favour of the plaintiffs.

       [Para 9]

       (b) Civil Procedure Code, 1908 — Order 39, Rules 1 & 2 — Interim mandatory injunction — Grant of — Validity — In the matter of grant of mandatory injunction Courts have to be guided by three essential ingredients, namely prima facie case, balance of convenience and irreparable loss of injury on the point of prima facie case Court has to see whether there is substantial case for trial in favour of plaintiff — In the instant case Trial Court has elaborately discussed the documents on record & prima facie found strong case in favour of plaintiff — There is no dispute that before the name of hospital was sought to be changed in July/August 1989 the hospital complex was known as Rajasthan Seva Samiti Nirmit Gujarat Research & Medical Institute Sanchalit C.L. General Hospital & it was according to the Lease agreement between plaintiffs the original donors & defendants — The change in name is being effected within two or three days prior to the institution of the suit without notice or knowledge to plaintiffs and in contravention of lease deed originally entered into between parties — There was prohibition in the lease deed in changing the name of hospital — Considering all these facts Trial Court found that there was strong prima facie case in favour of plaintiff which needs trial as to whether defendants could be permitted to change the name of hospital — It can not also be deemed that in view of strong prima facie case in favour of plaintiffs the balance of convenience lies in their favour & that they will otherwise suffer irreparable loss & injury in case interim mandatory injunction is not issued — Thus in the facts grant of interim mandatory injunction by Trial Court can not be faulted — It can not also be accepted that by granting one relief only the entire suit is not virtually decreed.

       Like prohibitory injunction while granting interim mandatory injunction Courts have to be guided by three essential ingredients, namely, prima facie case, balance of convenience and irreparable loss and injury.

       [Para 18]

       However, prima facie the alleged change was that the initial name of the hospital has been changed. Such change of name is prohibited under the lease deed vide paragraph 3(iii) which provides that it is further agreed to by and between the parties that the lessee shall set up and run the said hospital and name it as Rajasthan Seva Samiti Nirmit The Gujarat Research & Medical Institute Sanchalit Chaturbhuj Lajpatrai General Hospital and the lessee is not entitled to change the said name of the hospital. Thus, there was prohibition in the lease deed in changing the name of the hospital. Even though subsequently the property was handed over by the lessee to the contesting defendants they are also bound by the conditions in the lease deed. There is similar recital in the Articles of Association and as such there is strong prima facie case in favour of the plaintiffs that the name of the hospital could not be changed at the sweetwill of the defendants or some of the defendants. The Trial Court has rightly observed that there was nothing on record to show that any complaint was received on account of which the name of the hospital had to be changed. The Trial Court has further found that subsequent donors also never raised any objections that keeping in view their donations the name of the hospital be changed. It is mentioned in the judgment of the Trial Court that under some Resolution it was proposed to change the name of the hospital. The plaintiffs were members of the trust and they had never any notice of such meeting nor any agenda of resolution was served nor they had any opportunity to say that the name of the hospital could not be changed. Consequently the action of the defendants in changing the name of the hospital lends support to the plaintiffs case that there was a strong prima facie case which needs trial namely whether on the facts and circumstances of the case it was really a case of change of name of the hospital and whether on these facts the defendants could be permitted to change the name of the hospital.

       [Para 21]

       If a strong prima facie case was established by the plaintiffs, the balance of convenience lies in their favour and they will suffer irreparable loss and injury in case interim mandatory injunction is not issued. The change of name of the hospital was noticed by the plaintiff No. 2 only three days before the institution of the suit. If some secret resolution was passed under which the name of the hospital was changed, the plaintiffs cannot be said to have acquiesced in such change. The suit was filed immediately after three days of noticing the change of the name. The plaintiffs being the original donor and in terms of the lease deed, especially para 3(iii) referred to above they have right to say that the name of the hospital need not be changed. If interim mandatory injunction was granted by the Trial Court, no inconvenience is going to be caused to the patients going to the hospital for receiving various kinds of treatments nor to the members of the staff of the hospital nor to the members of the general public. They will receive medical treatment as before. Even the subsequent donors have not raised any grievance that the original name of the hospitalbe changed keeping in view the high donations made by them. As such the plaintiffs will suffer irreparable loss and injury if injunction is refused. The balance of convenience also lies in their favour because within the meaning of Para 3(iii) of the lease deed the defendants are prima facie not entitled to change the name of the hospital.

       [Para 22]