- (1.) V.M.Sahai, Sabhajeet Yadav-The plaintiff/respondents filed Original Suit No. 701 of 2006 for mandatory injunction and alongwith the suit an application for interim injunction supported with an affidavit was also filed. The court below on 19.5.2006 while issuing notice to the defendant/appellant granted ex parte interim mandatory injunction. It is this order which has been challenged by the appellant before this Court.
(2.) WE have heard Shri Navin Sinha, learned senior counsel, assisted by Shri A. K. Mehrotra and Shri Nishant Mehrotra for the appellant and Shri R.N. Singh, learned senior counsel, assisted by Shri I.P. Singh for the plaintiff-respondent No. 1. Shri Navin Sinha and Shri R.N. Singh both have stated before us that respondent No. 2 is a proforma respondent and this appeal can be finally decided at the admission stage itself. In view of the statement made by the learned counsel for the parties we have taken up this appeal for final disposal at the admission stage itself with the consent of learned counsel for the parties. Learned counsel for the appellant has urged that while issuing notice to the appellant ex parte interim mandatory injunction could not be granted by the court below without recording reasons as provided by the first proviso to Order XXXIX, Rule 3, C.P.C. He further urged that by way of interim relief the court below had granted final relief which is illegal. The learned counsel for the respondent on the other hand has urged that in some cases even interim relief can be granted, which is in the nature of final relief. He has supported the impugned order. Before considering the rival contention of the learned counsel for the parties, it is necessary to extract the interim mandatory injunction order dated 19.5.2006 passed by the court below, which is as under : ...[VERNACULAR TEXT OMMITED]...
(3.) THE question that arises for consideration is whether it is mandatory to record reasons while granting interim mandatory injunction? Order XXXIX, Rule 3, C.P.C., reads is as under :- "3. Before granting injunction, Court to direct notice to opposite party.-THE Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party : Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant- (a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with- (i) a copy of the affidavit filed in support of the application ; (ii) a copy of the plaint ; and (iii) copies of documents on which the applicant relies, and (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent." It is well settled that while deciding the issue of injunction the Courts have to consider the cumulative factor i.e., prima facie case, balance of convenience and irreparable loss but on an interlocutory application for grant of an interim mandatory injunction, the Court has to record a definite finding on prima facie case of a higher standard or specific circumstance for grant of interim mandatory injunction. The Apex Court in Dorab Cawasji Warden v. Coomi Sorab Warden and others, (1991) ARC 1 : (1990) 2 SCC 117 has laid down the guidelines in paragraph 16 which is extracted below : "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 of 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, 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." ;