MISRILAL MISRA Vs. IKRAM HUSEIN

JUDGEMENT

(1.) [After narrating facts, not material to the report, his Lordship proceeded.] It was argued by Mr. Keshavdas that the Court has no power to grant temporary mandatory injunction and that in any event mandatory injunction could be granted only to maintain the status quo as on the date of the suit, for special reasons after proof of the prima facie case and the balance of convenience. In support of his submission that the Court has no power to grant inter -locutory mandatory injunction he has relied upon the observations of Bea -man J. which are made in Rasul v. Pirubhai : AIR1914Bom42 . Beaman J. who formed a division Bench with Shah J., no doubt observed as under (p. 291):.It has always been, in my opinion, a very open question whether in strictness a mandatory injunction can properly be made on interlocutory applications. In England whatever doubts may have existed on this point may be said to have been removed by Section 25 of the Judicature Act, and it has long been a common place in the text -books that the Courts indubitably have the power to make mandatory injunctions on interlocutory motions.

(2.) THE learned Judge further observes (p. 293): An examination of this and many other cases which I have gone through, however, leaves me unshaken in the opinion that in strictness no mandatory injunction upon an interlocutory proceeding can ever be temporary.

(3.) IN the first place, the doubt expressed by Beaman J. was not shared by Shah J., who formed the Bench with him, inasmuch as in terms he observes at p. 297 that he does not desire to decide the general question argued on that application, viz., whether the Courts have power under Order XXXIX, Rule 2, to make an order restraining a defendant from committing the injury complained of, which may render it necessary for him to undo what may have been done by him before the suit. He further observes that there can be no doubt that the English Courts have the power to grant mandatory injunctions on interlocutory applications and added, he was not sure that the Indian Courts have not similar powers under Rule 2 of Order XXXIX.