Mandatory injunctions require a higher standard of prima facie case than prohibitory injunctions, emphasizing irreparable harm.

ORAL JUDGMENT :

1. Heard Mr Thali for the petitioners and Mr Bhobe for respondent No. 5.

2. This petition is directed against the judgment and order dated 04.12.2015 by the District Court (Appeal Court) reversing the Trial Court's order dated 05.07.2012. The Trial Court, by the order dated 05.07.2012, had issued a mandatory injunction at the temporary stage directing the respondents to demolish/remove the constructions put up by them allegedly during the pendency of the suit. The constructions are of the residential houses of the respondents.

3. Mr Thali, the learned Counsel for the petitioners, clarifies that the challenge is only to the extent of reversal of the order of mandatory injunction. He points out that the Trial Court had restrained the respondents from undertaking any further construction in the suit property. This portion of the Trial Court's order has been upheld by the Appeal Court and against which the petitioners have no grievance.

4. The record, in this case, shows that the respondents have raised the plea of agricultural tenancy, and this issue is already referred to the Mamlatdar for determination. The record also indicates that the petitioners-plaintiffs had applied for a temporary injunction against the respondents, which the Trial Court dismissed, and the Appeal Court confirmed such dismissal. Undeterred, the petitioners instituted yet another application for temporary injunction alleging fresh violations. Even this application was rejected by the Trial Court, and the Appeal Court upheld such dismissal.

5. The petitioners, alleging even further constructions during the pendency of the suit and the reference before the Mamlatdar, filed an application seeking inter alia restraint and mandatory injunction. The Trial Court, this time, allowed the application, restrained further constructions and ordered the demolition of the constructions allegedly undertaken during the pendency of the suit.

6. The Appeal Court, by the impugned order, has reversed the Trial Court's order of mandatory injunction. The detailed reasoning of the Appeal Court is found in paragraph 13. From the perusal of such detailed reasoning, the same cannot be stigmatised as arbitrary or perverse.

7. The Appeal Court has noted that the Trial Court's order of mandatory injunction relied almost entirely on photographs. The Appeal Court, however, correctly pointed out that no pictures of the earlier status of the houses were available on record to make a proper comparison. The Appeal Court also considered the impact of the dismissal of the previous application on the ground that the petitioners had failed to make out a prima facie case.

8. The Appeal Court also noted that the petitioners sought relief of temporary mandatory injunction without even bothering to seek such relief by amending the plaint. To that extent, the interim relief sought travelled beyond the main reliefs in the plaint.

9. The Appeal Court has also adverted to the provisions of the Agricultural Tenancy Act and the fact that the houses were being used for residential purposes. Mr Bhobe, the learned Counsel for the respondents, maintains that the houses are used only for residential purposes, not commercial ones.

10. In the case of Dorab Cawasji Warden V/s. Cooni Sorab Warden & Ors, AIR 1990 SC 867 the Hon'ble Supreme Court has held that for the grant of the mandatory injunction at the temporary stage, a party must make out a higher standard of prima facie case than is required for a prohibition. Further, the party must also make out a case that