A mandatory injunction can be passed under O. 39, R. 2 of the C. P. C. and an appeal lies from an order passed by a trial court under that provision.

ORDER :- What is sought to be revised by the revision applicants, who were the original defendants, is the order of the District Judge, Panaji, dated September 17, 1976. The respondent/plaintiff filed a suit against the petitioners/defendants praying that the defendants be ordered to demolish the wall mentioned in the suit. The plaintiff also prayed that "by a mandatory interim injunction the defendants be ordered to break immediately a portion of the wall corresponding to the door of the outhouse, to the gate of the compound wall and the extension from the curtain wall of the latrine to the wall of Gonsalves, which is the opening of access to pigs and they be further ordered to make openings in the wall at least in correspondence with the opening existing in the compound wall of the plaintiff for the drainage of monsoon waters". That prayer of the plaintiff was rejected by the trial Court and was granted by the District Court in appeal.

2. The first ground on which Shri Rebello relies is that no appeal would lie from the order of the lower court passed under S. 151, C. P. C. and no mandatory injunction ordering the demolition of a wall or of its portion can be granted under O. 39, R. 2 of the C.P.C. I am unable to agree with Shri Rebello. By the present suit the plaintiff seeks to indirectly restrain the defendants from causing injury to him. What the plaintiff seeks in the present case is to prevent the defendants from obstructing the free access of the water that accumulates on the land of the plaintiff and thereby causes injury to it. Looking at it from this angle the mandatory injunction directing the defendants to open the passage of the water would be an injunction restraining the defendants from causing injury to the plaintiff.

3. In support of his contention Shri Rebello relies on Shrirang Padmanabh Porob Dessai v. Mariano Francisco Jacques, AIR 1975 Goa 23. In that case my learned Brother Shri K. N. Shukla, A. J. C., has ruled that O. 39, Rr. 1 and 2 of the C. P. C. do not contemplate the mandatory injunction of the nature passed by the lower court There the plaintiff brought a suit for permanent injunction and prayed for a direction to the defendants to restore the drain in question through which according to the plaintiff rain water coming down the hill used to flow through the applicants field to the sea for numerous years. As the onset of the monsoon was not very far the plaintiff prayed that pending the decision of the suit the status quo be maintained and the drain be cleared so that the defendants field may not be flooded. The lower Court granted the mandatory interim injunction. In revision the learned Additional Judicial Commissioner presumed that the injunction was passed under S. 151, C. P. C. because O. 39, Rr. 1 and 2, C. P. C. do not contemplate a mandatory injunction of the nature passed by the lower Court.

4. With great respect I do not agree with the learned Additional Judicial Commissioner. There is no warranty for the proposition that no mandatory injunction could be granted under O. 39, R. 1 or R. 2 of the C. P. C. The question whether in the mofussal the Courts have power by virtue of O. 39, R. 2 of the Civil P. C. to issue temporary injunction came up for consideration before the High Courts of Madras, Travancore-Cochin, Kerala and Calcutta in

Kandaswami v. Subramania, ILR 41 Mad 208: (AIR 1918 Mad 588); Varghese v. Thomas, AIR 1957 Trav-Co 286; Rajalekshmi v. Kunjipillai, AIR 1959 Ker 277 and Israil v. Shamser, ILR 41 Cal 436: (AIR 1914 Cal 362) and the said High Courts answered the question in the affirmative. In Bombay, Beaman, J., answered the question in the negative in Rasul Karim v. Pirbhai, ILR 38 Bom 381: (AIR 1914 Bom 42) whilst Shah, J., as he then was, took in the same case an opposite view and held that Indian Courts had power to grant a temporary mandatory injunction under O. 39, R. 2. In a later case of the Bombay High Court, two other Judges took a view different from Beama