The right to relief must be judged to exist as on the date a suitor institutes the legal proceeding, and the Court has the power to grant mandatory injunction even without a specific prayer in the plaint.

S.P. Khare, J.

1. This is a revision by the plaintiff against the order by which the defendant's appeal under Order 43, Rule 1(r), Civil Procedure Code has been allowed and the order of temporary injunction issued in favour of the plaintiff by the trial Court has been set aside.

2. It is not in dispute that the plaintiff was granted licence by the defendant No. 1 to run a P.C.O. at the Railway Station by order dated 3-12-1995. She was given 1.83 m x 1.52 m space adjacent to the traffic booth in front of the computerised reservation office at Jabalpur on certain terms and conditions. She has been running the booth for five years at that place. On 1-11-2000 the plaintiff received a letter from the Divisional Commercial Manager informing her that her licence has been cancelled because of certain complaints against her for overcharging the customers. She was informed that the contract has been terminated and the P.C.O. would be removed from the Railway premises.

3. The plaintiffs case is that she was not given any notice or opportunity of hearing before the proposed action and therefore it is in violation of the principles of natural justice. It is also her case that she cannot be removed from the spot by force without following due process of law. In the plaint she claimed the relief of permanent injunction for restraining the defendants from removing the P.C.O. booth installed in the Railway premises. As usual any other relief which the Court deems fit on the facts and circumstances of the case was also prayed. The suit was filed on 6-11-2000. An application under Order 39, Rules 1 and 2, Civil Procedure Code was also filed claiming the relief of temporary injunction restraining the defendants from dispossessing the plaintiff and removing the P.C.O. booth. An application under section 80 (2), Civil Procedure Code was also filed for dispensing with the notice under section 80, Civil Procedure Code.

4. Notices were issued to the defendants and served upon them on 7-11- 2000 at 4.00 P.M. In reply to the application for temporary injunction the defendants stated that the possession of the P.C.O. booth has been taken over by the Railways at 0.15 hours on 7-11-2000, before the service of the notice. It was not denied that no show cause notice was given to the plaintiff before taking the decision to terminate the contract and remove the. P.C.O. booth.

5. The plaintiff filed another application on 9-11-2000 stating therein that a lock was put by the defendants over the lock of the plaintiff on the P.C.O. booth after the service of notice on them and the electricity and telephone lines were disconnected. Therefore, the plaintiff claimed mandatory injunction for maintaining status-quo as on the date of the institution of the suit. The defendants submitted a reply to this application also.

6. The trial Court after testing the plaintiffs case on the touch stone of three well known principles for grant of temporary injunction i.e. strong prima facie case, balance of convenience and irreparable injury allowed the plaintiffs application for temporary injunction. It was found that the defendants were prima-facie not acting according to due process of law. On the facts and circumstances of the case the trial Court considered that it is a suitable case in which temporary mandatory injunction should be issued to bring the status existing on the date of the suit. Consequently a direction was given to the defendants to remove their lock from the P.C.O. booth, deliver its possession to the plaintiff and restore the electricity and telephone connection. The trial Court gave the liberty to the defendants to proceed against the plaintiff according to law.

7. In appeal filed by the defendants the order passed by the trial Court has been set aside on the ground that in the plaint the relief of "mandatory injunction" has not been claimed.

8. After hearing the learned counsel for both the sides this Court is of the opinion that the order of the Appellate Court