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1972 Supreme(J&K) 44
IN THE HIGH COURT OF JAMMU AND KASHMIR AT Jammu
Mian Jalal-ud-Din, J.
Goverdhan Singh - Appellant
Versus
Mulkh Raj & Anr. - Respondent
Civil Revision No. 6/1972
Decided On : 15 June, 1972
Advocate For Appellant: I.K. Kotwal
Advocate For Respondent: S.P. Gupta
The Court has the power to grant mandatory injunction on interlocutory applications to maintain status quo.
Headnote:
INJUNCTION - MANDATORY - INTERIM - JURISDICTION - COURT HAS POWER TO GRANT MANDATORY INJUNCTION ON INTERIM APPLICATION TO MAINTAIN STATUS QUO.
Fact of the Case:
Plaintiffs filed a suit for permanent injunction restraining the defendants from interfering with their possession and peaceful enjoyment of the shop held by them as tenants. The defendants were interfering with the peaceful enjoyment of the premises held by the plaintiffs. An interim application was moved along with the plaint. The trial Court ordered interim injunction directing the defendants not to interfere with the peaceful possession of the property held by the plaintiffs. Later on in pursuance of the order of High Court that a portion of the land under the shop was to be acquired by the Collector the order was modified.
Finding of the Court:
The Court held that the trial Court was competent to issue interim mandatory injunction asking the defendants to rebuild the wall and re-roof the house. The Court observed that the power to grant mandatory injunction on interlocutory applications is well recognized and can be exercised by the Court both under Order 39 Rule 2 of C.P.C. and under section 151 C.P.C. in order to advance the cause of justice.
Issues: Whether the trial Court was competent to issue interim mandatory injunction asking the defendants to rebuild the wall and re-roof the house.
Ratio Decidendi: The Court relied on various precedents to hold that the Court has the power to grant mandatory injunction on interlocutory applications to maintain status quo. The Court observed that this power can be exercised by the Court both under Order 39 Rule 2 of C.P.C. and under section 151 C.P.C. in order to advance the cause of justice.
Final Decision: The Court dismissed the revision petition and upheld the order of the trial Court granting interim mandatory injunction.
2. A suit for permanent injunction brought by Mulkh Raj and others against Goverdhan Singh is pending in the Court of Sub-Judge (C.J.M.) Jammu. The plaintiffs case is that they are in possession of the shop held by them as tenants. The defendants are interfering with their possession and in the peaceful enjoyment of the shop. They filed an interim application for grant of temporary injunction restraining the defendants from interfering with the peaceful enjoyment of the property. A temporary injunction was issued subject to objections of the defendants. The defendants filed an application for vacating the said temporary injunction, as according to them, the Government sought demolition of a portion of the shop acquired by the Collector Jammu for public purposes. They also objected to the grant of temporary injunction on merits. The Court of Sub-Judge after hearing the arguments in the application observed that it was evident as also from the order of the High Court that a portion of the shop in question was to be demolished under the orders of the Collector Jammu. The plaintiffs are prepared for the demolition of this portion of the shop but their fear is that in the garb of this demolition the defendants might not dispossess them from the shop in question. Considering this apprehension of the defendants as genuine which was reinforced by certain facts raised in the objections filed by the defendants the trial Court ordered the demolition of a portion of the shop. The Court further ordered that after the demolition the shop shall be made habitable so as to make it safe for carrying on the business for which it has been held by the plaintiff applicants. The Court further ordered that in case the defendants did not reconstruct the wall and doors or pay the necessary amount for its construction the plaintiffs could do so at their own cost. With these observations the temporary injunction was made absolute. On appeal before the District Judge, the order of the trial Court was affirmed. The learned District Judge observed that there was nothing wrong in the order under appeal as to call for any interference. The learned counsel for the appellant could not make any alternate suggestion before him as to what order other than the one passed by the trial Court could in the circumstances of the case be passed.
3. Before me it has been contended on behalf of the defendants petitioners that the order of the trial Court is without jurisdiction inasmuch as no such order could be passed in the mandatory form in a suit for permanent injunction. It is, however, conceded before me that notwithstanding the fact that a portion of area under the shop has been acquired by the Collector for public purposes, the defendants would not disturb the possession of the plaintiffs who are the tenant of the shop. The plaintiffs have no objection to the retention of possession by the tenants but they could not be compelled to reconstruct the wall or to re-roof the shop in question. The order was beyond the scope of the suit. Reliance is placed upon A. I. R. 1956 Cal. 45 (d) and page 187 and also on A.I.R. 1963 Gujrat 160.
On the other hand it is sought to be established by the learned counsel for the respondents that this was the only appropriate interim order that could be passed by the Court below in the circumstances of the case. After all it is the responsibility of the landlord to make the premises held by a tenant habitable. He is under an obligation to provide accommodation convenient to the tenant so that his person and property are protected in the premises. Interim injunction in the mandatory form can be issued by the Court in order to maintain s
