Compound vs M/S. Dolphin Developers
2013 Latest Caselaw 29 Bom

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                   IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                        APPELLATE SIDE CIVIL JURISDICTION




                                                                                                           
                             APPEAL FROM ORDER NO. 1108 OF 2013




                                                                                   
                                             WITH
                              CIVIL APPLICATION NO. 1306 OF 2013
                                              IN
                             APPEAL FROM ORDER NO. 1108 OF 2013




                                                                                  
    Therakan D. Joseph
    Age about 75 years,
    having his address as 3, Anthony Mirinda




                                                                      
    Compound, Near Vakola Masjid,
    Santacruz (East), Mumbai-400 055.         ig                                            ....Appellant.

                          Vs.
                                            
    M/s. Dolphin Developers,
    A registered partnership firm, having its
    address at Shop No.8, Aminabai Chawl,
    Vakola, Santacruz (East),
          


    Mumbai-400 055.                                                                         ....Respondent. 
       



    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.





                                     CORAM  :  ANOOP V. MOHTA, J.

DATE : 15 OCTOBER 2013.

ORAL JUDGMENT:-

Heard finally, by consent.

2 The Appeal from Order is filled by the Appellant-Original

Defendant, as the learned Judge, City Civil Court, Dindoshi by ad-

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interim order dated 16 September 2013 passed the following

mandatory order:-

1. Defendant is directed to remove lathe machine from

the portion admeasuring 5 x10 sq. ft. from the suit property, more particularly described in Ex. A annexed to the plaint within a period of one month from today.

3 The Appellant-Plaintiff filed the Suit some time in

September 2013 along with the Notice of Motion basically for

monetary claim and also for a mandatory order/injunction to remove

the lathe machine from the portion of the land in question.

Admittedly the Suit, as well as, the Motion is pending for hearing.

4 The learned counsel appearing for the Appellant-Original

Defendant contended that there is no case for grant of ad-interim

mandatory injunction, specifically at this stage of the construction and

the development of the property in question. The law with regard to

the grant of ad-interim mandatory injunction, as noted by the Apex

1 is Court in Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors.

as under:-

"16. The relief of interlocutory mandatory

1 (1990) SCC 117

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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,

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.

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            (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 or refusal of such injunctions would be a sound

exercise of a judicial discretion."

5 The learned counsel appearing for the Respondent-original

Plaintiff has relied on the case of Deoraj Vs. State of Maharashtra

and contended that there is no total bar to grant such mandatory

injunction, if the facts and circumstances are made out to avoid

extreme hardship or injustice. The grant of mandatory ad-interim

relief was not the issue in Deoraj (Supra).

    6                     There   is   no   total   bar   that   no   ad-interim   mandatory 
    2          2004 AIR (SC) 1975= 2004(4) SCC 699






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injunction can be granted, considering the scope and purpose of Order

39 Rules 1 and 2 of the Code of Civil Procedure (for short, the CPC)

read with Section 151 of the CPC and also considering the scheme of

Specific Reliefs Act, but this is only on a foundation of the exceptional

and compelling case, justifying the same, covering the extreme

hardship, immediate and pressing injury and injustice would be

caused, if such mandatory order is not granted.

The controversy revolved around and as submitted by the

learned counsel appearing for the parties, needs to be considered at

the time of final hearing of Notice of Motion in question. The Court

may pass appropriate order as prayed. The grant of ad-interim

mandatory injunction, in my view, is not the case made out in the

present facts and circumstances, for the reason that the construction

and/or the development of the property in question is going on since

long. It is not the case that the situation arose for the first

time/recently and therefore, they have no option but to ask for such

mandatory injunction. For further development certain steps are

required, just cannot be stated to be a matter of great urgency and/or

of any emergent hardship. The Plaintiff took its own time to take

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such action and now cannot be permitted to insist. The Court in such

background, cannot direct by ad-interim mandatory injunction to

remove those machines and basically against the owner of the

property. The rival monetary claim/contention pending the Suit can

be adjudicated at this stage, but certainly not the case of grant of ad-

interim mandatory injunction as granted in the present case without

considering the aspect of delay and latches. No ingredients as

contemplated in Deoraj (Supra) is made out for such mandatory

injunction.

8 Therefore, by keeping all points open, I am inclined to set

aside the order of the ad-interim relief, as no case is made out.

However, Notice of Motion is expedited and be disposed of within four

weeks.

9 In view of this, the Appeal from Order is allowed. The

parties are still at liberty to settle the matter.

10 The Civil Application is accordingly disposed of. No costs.

(ANOOP V. MOHTA, J.)