RAMA Vs. MANGILAL

JUDGEMENT

(1.) THIS is an application in revision by the defendants in a suit for permanent injunction from the dissident order of the appellant Court granting a temporary injunction of a mandatory nature in favour of the plaintiff non -applicant, directing the defendants (applicants here) to break down part of the wall constructed by them around their house so that the cattle coming out of the plaintiff's house may be able to go out through" the" opening.

(2.) THE facts of the case are comparatively simple and the difference in the factual allegations will be resolved after hearing in the trial Court. At this stage the point for consideration is whether in a situation like this the exceptional course of granting a mandatory injunction to break down part of a structure can be granted, and whether the status quo that is sought to be restored should be the status -quo on the date of the initiation of the proceedings or the status -quo on an earlier date when according to the plaintiff his encroachment started.

(3.) MEANWHILE the plaintiff prayed for a temporary injunction for the duration of the suit, the injunction being one of a mandatory nature calling upon the defendants to make a breach in the wall even now with security being afforded by the plaintiff to compensate the defendants in case he the plaintiff -lost the suit. The defendants opposed it because it was a serious matter to break down a structure already put up in due course by the defendants before the commencement of the suit. The defendants again led evidence by affidavit to show that the cattle of the house of the plaintiff had never been moving in that direction. The plaintiff, for his part, produced a sale deed in which he urged that a sketch map however crude had been included indicating an opening or door on the western side of this house. The trial Court refused to grant the temporary injunction while the appellate Court felt that all the requirements for a temporary injunction were found here and though it involved breaking down of a structure and the nature of a mandatory injunction, it should be granted. From that the defendants have come up in revision, the temporary mandatory injunction for breaking down part of the wall having been stayed for the duration of the present proceeding.