Case Note & Summary
The appellant, original defendant, challenged an ad-interim mandatory injunction passed by the City Civil Court, Dindoshi, on 16 September 2013, directing removal of a lathe machine from a portion of the suit property. The respondent, original plaintiff, had filed a suit in September 2013 along with a notice of motion seeking monetary claim and a mandatory injunction for removal of the machine. The trial court granted the ad-interim mandatory injunction without hearing the notice of motion. The appellant contended that there was no case for such relief at the stage of construction and development. The High Court, relying on the Supreme Court decision in Dorab Cawasji Warden v. Coomi Sorab Warden, held that ad-interim mandatory injunctions require a higher threshold and should not be granted without considering serious questions to be tried, balance of convenience, and irreparable loss. The court noted that the trial court had not heard the notice of motion and had passed the order prematurely. The High Court set aside the impugned order and directed the trial court to hear the notice of motion afresh and decide it in accordance with law, preferably within four weeks. The appeal was allowed, and the civil application was disposed of.
Headnote
A) Civil Procedure - Ad-Interim Mandatory Injunction - Principles for Grant - The court must consider serious questions to be tried, balance of convenience, and irreparable loss; mandatory injunctions are granted to preserve or restore status quo of last non-contested status, but a higher threshold applies as granting such relief at an interim stage may cause great injustice if the party fails at trial (Paras 4-6).
B) Civil Procedure - Interim Orders - Hearing of Notice of Motion - The trial court erred in passing a mandatory order without hearing the notice of motion; the proper course is to hear the motion and then decide, especially when the suit and motion are pending (Paras 3, 6).
Issue of Consideration
Whether the trial court was justified in granting an ad-interim mandatory injunction directing removal of a lathe machine from the suit property without hearing the notice of motion and without considering the principles governing grant of mandatory injunctions.
Final Decision
The appeal is allowed. The impugned order dated 16 September 2013 is set aside. The trial court is directed to hear the notice of motion afresh and decide it in accordance with law, preferably within four weeks from the date of the order. The civil application is disposed of.
Law Points
- Ad-interim mandatory injunction
- status quo
- serious questions to be tried
- balance of convenience
- irreparable loss
- restoration of status quo ante
- higher threshold for mandatory injunction
Case Details
2013 LawText (BOM) (10) 84
Appeal from Order No. 1108 of 2013 with Civil Application No. 1306 of 2013
Mr. A.A. Kumbhakoni a/w Mr. Rajesh Singh for the Appellant; Mr. G.S. Godbole a/w Mr. S.A. Sawant and Mr. Ketan Joshi i/by Mr. Mujib Khan for the Respondent
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Nature of Litigation
Appeal against an ad-interim mandatory injunction order passed by the City Civil Court in a suit for monetary claim and removal of lathe machine from suit property.
Remedy Sought
The appellant (original defendant) sought setting aside of the ad-interim mandatory injunction directing removal of lathe machine.
Filing Reason
The trial court granted an ad-interim mandatory injunction without hearing the notice of motion and without considering the principles for grant of mandatory injunction.
Previous Decisions
The City Civil Court, Dindoshi, passed an ad-interim mandatory order dated 16 September 2013 directing the defendant to remove the lathe machine from the suit property within one month.
Issues
Whether the trial court was justified in granting an ad-interim mandatory injunction without hearing the notice of motion.
Whether the principles for grant of ad-interim mandatory injunction were satisfied.
Submissions/Arguments
Appellant argued that there was no case for grant of ad-interim mandatory injunction at the stage of construction and development.
Appellant relied on the Supreme Court judgment in Dorab Cawasji Warden v. Coomi Sorab Warden regarding the principles for grant of mandatory injunction.
Ratio Decidendi
Ad-interim mandatory injunctions require a higher threshold and should not be granted without considering serious questions to be tried, balance of convenience, and irreparable loss. The trial court must hear the notice of motion before passing such orders, as granting mandatory relief at an interim stage may cause great injustice if the party fails at trial.
Judgment Excerpts
The law with regard to the grant of ad-interim mandatory injunction, as noted by the Apex Court in Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors. is as under: '16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.'
But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm.
Procedural History
The respondent filed a suit in September 2013 along with a notice of motion seeking monetary claim and mandatory injunction. The City Civil Court, Dindoshi, passed an ad-interim mandatory order on 16 September 2013 directing removal of lathe machine. The appellant filed the present appeal against that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
