IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 248 of 2011 Reserved on: 09.08.2011 Decided on: 23.08.2011 Anil Sharma & another …Petitioners. Versus Mehboob Hussan …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. Sanjeev Kuthiala, Advocate. For the respondent: Mr. B.C. Negi, Advocate. Deepak Gupta, J. In what circumstances should the Court grant a mandatory injunction by way of interim directions? This is the question which arises for decision in the present case. 2. The respondent (hereinafter referred to as 'the plaintiff') filed a suit under Section 6 of the Specific Relief Act for recovery of possession. According to the averments made in the plaint, father of the plaintiff was inducted as tenant by the predecessor in interest of the defendants some time in the year 1973. It is alleged that after the death of his father, the plaintiff 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- inherited the tenancy and Smt. Jogmaya, widow of the original owner Shri Inder Dass, predecessor in interest of the respondents, received the rent of the shop from the plaintiff. Thereafter, Shri Pardeep Kumar, husband of defendant No. 1 and father of defendant No. 2 also received the rent of the shop. The case of the plaintiff was that he had spent a huge amount for re-construction of the shop with the consent of the owners and they had agreed that the amount spent by the plaintiff would be adjusted in the monthly rent. The problem arose after the death of Pardeep Kumar. It is alleged that on 12.03.2011, defendant No. 2 alongwith some anti-social elements forcibly entered into the shop and threw away the articles lying in the shop and illegally took possession of the same and put their lock on the shop. The plaintiff reported the matter to the police on the same day, i.e. on 12.03.2011 itself and FIR No. 62 of 2011 was registered. 3. The suit in question was filed on 16.03.2011 and alongwith the suit, the plaintiff filed an application under Order 39 Rule 1 and 2 CPC praying that an interim order of mandatory injunction be passed directing the respondents to handover the vacant and peaceful possession of the shop to the petitioner. The defendants contested the suit and according to them, the plaintiff had voluntarily surrendered the tenancy and handed over the possession of the shop to the defendants on 10.03.2011, when they took over possession of the same. Allegedly, a writing -: 3 :- in this behalf was also executed. The prayer for grant of interim mandatory injunction was opposed on the ground that allowing of such a prayer would virtually amount to decreeing the suit. The learned trial Court rejected the application mainly on the ground that the plaintiff was not in possession of the shop at the time when the suit was filed. The learned trial Court has also made some reference to the statement of the plaintiff in Court. According to him, the plaintiff was guilty of concealing material facts and rejected the application. The plaintiff filed an appeal and in this appeal, the learned District Judge came to the conclusion that this was a fit case where by way of interim order, mandatory injunction should be granted directing the defendants to put the plaintiff in possession of the property. The learned lower Appellate Court was of the opinion that there was material on record to prima facie come to the opinion that the plaintiff had been forcibly dispossessed. 4. The question as to when and in what circumstances an interim mandatory injunction should be granted came up for consideration before the Apex Court in Dorab Cawasji Warden versus Coomi Sorab Warden and others, (1990) 2 Supreme Court Cases 117. The Apex Court held as follows: “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 -: 4 :- 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, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief. 17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant of refusal of such injunctions would be a sound exercise of a judicial discretion.” This authority remains the basic authority on the point and till date holds a field. It has been considered in a number of later cases also. 5. In Samir Sobhan Sanyal versus Tracks Trade Private Ltd. & others, (1996) 4 Supreme Court Cases 144, the appellant was unlawfully dispossessed from the premises without following the due process of law. In these circumstances, the Apex Court held that the appellant was entitled to a grant of interim injunction. -: 5 :- 6. In Metro Marins and another versus Bonus Watch Co. (P) Ltd. & others, (2004) 7 Supreme Court Cases 478, the Apex Court held that the interim relief of mandatory injunction can only be granted in exceptional cases. 7. The latest judgment on the point cited before me is Purshottam Vishandas Raheja & another versus Shrichand Vishandas Raheja (Dead) through LRs & others, (2011) 6 Supreme Court Cases 73. In this case, there was a dispute between two brothers with regard to a property situate in Mumbai. The plaintiff claimed to be the exclusive owner in possession of the same whereas the defendant claimed that the suit property is the joint property. The plaintiff claimed that he had purchased the properties vide sale deed in his name and had taken steps to develop the same and had constructed two buildings thereupon. According to the plaintiff, he had executed three powers of attorney, one in favour of his wife and his brother, second in favour of his wife, his brother and son and the third power of attorney was only for the purpose of leading evidence. According to the plaintiff, taking benefit of the said power of attorney, the defendants withdrew amounts which were lying in the bank accounts. When the defendants did not pay him the said amounts, he filed the suit. The learned Single Judge came to the conclusion that it was not possible to hold whether the powers of attorney were powers simpliciter or whether they contained elements of agency also. Therefore, he only granted -: 6 :- an interim injunction restraining the defendants from entering into the property or continued to represent the plaintiff as his power of attorney. The Division Bench, however, held that since the sale deed showed that the property was in the name of the plaintiff, and the flats were being sold by the defendants as power of attorney holders of the plaintiff, therefore, a strong prima facie case was made out and mandatory injunction was also granted. The Apex Court referred to the judgment of Dorab Cawasji Warden's case supra and after referring to certain other judgments, came to the conclusion that the case before it was not a case where mandatory interim injunction should be granted. The principles laid down in Dorab Cawasji Warden's case were, however, again re-iterated. 8. The Gujarat High Court, in Ramesh Devchand Pala versus Jayantkumar Gordhandas madani and others, AIR 1998 GUJARAT 120, in a case also under Section 6 of the Specific Relief Act held that the trial Court has ample powers under Section 6 of the Specific Relief Act to grant interim relief directing the restoration of possession, if it comes to the conclusion that the plaintiff has shown more than a prima facie case and has shown that he was in lawful possession before he was evicted unlawfully. This judgment applies to the present case also. 9. Coming to the facts of the present case, the admitted facts are that the plaintiff and earlier his father were the tenants -: 7 :- of the suit property. This fact is not disputed. The disputed question is whether the plaintiff, of his own accord, surrendered the premises or the possession of the premises was forcibly taken over by the owners. The original document alleged to have been executed on 10th March, 2011 has not been placed on record. Only a photocopy has been placed on record. When specifically asked a question, Shri Sanjeev Kuthiala, learned counsel appearing on behalf of the petitioners, submitted that the original document is with the tenant. One fails to understand how the original of a document whereby the tenant has surrendered his tenancy and handed over the possession to the landlord should be with the tenant. This gives rise to the question as to why the original document is not being placed on record. 10. Even if this document is taken at its face value, due to the fact that there was not sufficient business, the plaintiff could not pay the rent for the last three years and, therefore, he had agreed to give up the possession of the premises and the landlords had foregone their right to claim the rent. This fact is prima facie incorrect. There are numerous documents on record to show that rent was tendered by money order in the month of March itself. 11. The case of the plaintiff is that he was dispossessed on 12th March, 2011 and on 12th March, 2011 itself, FIR was lodged. One witness has also appeared who states that he was -: 8 :- engaged as a painter by the plaintiff on 11th March, 2011 and he did such work on 11th March, 2011, but when he went to the premises on the next day, i.e. on 12th March, 2011, to complete the work, the defendants forcibly removed the articles and took possession from the plaintiff. This case, in my opinion, falls in those rare cases where mandatory injunction should be granted as an interim measure also. No Court should give premium to illegal activities. The case of the defendants that the plaintiff had voluntarily surrendered his tenancy does not appear to be correct. If the plaintiff had voluntarily given up his tenancy on 10th March, 2011, why would he have filed the FIR on 12th March, 2011 and a suit just six days later, on 16th March, 2011. These factors by themselves indicate that the plaintiff was forcibly evicted from the premises. 12. Shri Sanjeev Kuthiala, learned counsel appearing on behalf of the petitioners, contends that granting of interim relief in this case virtually amounts to granting the final relief. This submission is not without force. However, exceptional cases call for relief which is not the norm. I am of the prima facie opinion that the defendants took the law in their own hands and the Court cannot be a mute spectator to such illegal activities and must ensure that status quo ante prior to the date of dispute is restored. 13. The learned lower Appellate Court, after consideration of the entire facts, has come to a conclusion that -: 9 :- this is a fit case where interim mandatory injunction should be granted. After going through the entire record, I am of the considered opinion that this finding of the learned lower Appellate Court appears to be correct and calls for no interference in exercise of the supervisory jurisdiction of this Court. Therefore, the petition filed by the defendants is rejected. The stay order is vacated and the defendants are directed to ensure that possession of the disputed premises is handed over to the plaintiff on or before 31st August, 2011, on the terms and conditions fixed by the learned lower Appellate Court. 14. With these observations, the petition is disposed of. No order as to costs. (Deepak Gupta) Judge August 23, 2011 (rajni)