The court has the inherent power under Section 151, Code of Civil Procedure to grant a mandatory injunction on an interlocutory application in rare cases, based on the balance of convenience and to prevent irreparable loss.

ORDER :- This Revision Petition challenges the interim, mandatory injunction passed by Civil Judge, Junior Division Margao directing the applicant/defendants to reopen the 27 feet long drain by removing the material dumped therein blocking the flow of rain water through the drain to the sea.

2. Non-applicant has brought a suit for permanent injunction to direct the defendants to restore the drain in question through which according to the plaintiff rain water coming down the hill used to flow through applicants field to the sea since numerous years. As the onset of the monsoon was not very far, the non-applicant/plaintiff prayed that pending the decision of the suit status quo be maintained and the drain be cleared so that non-applicants field may not be flooded.

3. Applicants/defendants opposed the prayer and denied plaintiffs right.

4. The learned lower Court granted the mandatory interim injunction presumably under Section 151, Code of Civil Procedure because Order 39, Rules 1 and 2, Civil P. C. do not contemplate a mandatory injunction of the nature passed by the learned lower Court. It was for this reason that the applicants/defendants filed a revision petition under S. 115, Civil P. C. instead of filing an appeal under Order 43, Rule 1 (R), Civil P. C. which is provided against an order under O. 39, Rr. 1 and 2. Civil P. C.

5. The scope of interference under Section 115, Civil P. C. is very limited and it is no use repeating the case law on the point. In the present case there is no error of the jurisdiction inasmuch as the Court had power to grant mandatory injunction on an interlocutory application. The power is not covered by O. 39, Civil P. C. This power is considered to be inherent to be exercised for the ends of justice under Section 151, Civil P. C. (B. F. Vargese v. Joseph Thomas, AIR 1957 Trav Co 286; Nandan Pictures Ltd. v. Art. Pictures Ltd., AIR 1956 Cal 428). It is acknowledged that a mandatory injunction on an interlocutory application is granted in very rare cases and in the Travancore Cochin and Calcutta cases these injunctions had been granted to restrain (?) status quo as it stood on the date of the suit since on

facts it was found that the status quo was disturbed after the institution of the suit. The principle however, that a Civil Court has jurisdiction to order mandatory injunction on an interlocutory application has been affirmed and some guidelines have been laid. Even if there is an error in following the guidelines by the Court below, it cannot be considered as an error of jurisdiction or any material irregularity i. e. the failure to abide by rules of procedure.

6. The balance of convenience in the case lies in granting the impugned injunction. If the drain remains blocked, the rain water from the hill will inundate the non-applicants field and cause irreparable loss. On the other hand the small drain if opened will connect the drains already existing in the fields of the rival parties and without causing damage to any one will carry the rain water to the sea. Pending investigation into the rights of the parties for such an easement, it was proper that there should be minimum damage or loss to either off the parties.

7. For the foregoing reasons the revision petition is dismissed and the impugned order is confirmed. Costs of this revision will be borne as incurred. Parties are directed to appear before the trial Court on 26-2-1975.

Revision dismissed.