RASUL KARIM Vs. PIRUBHAI AMIRBHAI

JUDGEMENT

(1.) I think of this Court s revisional power of some general interest manner in which the question brought a suit the object directing the defendant to corrugated iron sheets with and invaded his easement being the nature of the made and acceded to by ordered the defendant to up, and this order was Breach of contract or injury of a lame contract or relating to the a mandatory injunction is not e rule. of the Specific Relief Act bions are treated as distinct from party provided for. The English the Judicature Act, 1873, and of this, even in England, the injunction on interlocutory application cases that occurred: Gale v. Courts of Justice Chambers to prejudice the defence. One act is decreed without there being line and before the merits are Order fully the erections the defendant which the injunction has been will, in no way, be prejudiced erections at our expense in case the discretion of the Court. the discretion in the plain-of interfere under Section 115 with discretion. The erections a proper case for the exercise. The question raised is one pending upon a principle. The is raised is this The plaintiff 1 which was to obtain an order down an erection consisting of the plaintiff alleged obstructed pf ancient light and air. That interlocutory application was learned Subordinate Judge who down the erection he had put confirmed on appeal by the learned " District Judge. 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, v-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.) An examination of the case-law upon which this dictum rests is very interesting, and it confirms my impression speaking generally, that there can hardly be a case of a true mandatory injunction which could be given upon an interlocutory application without virtually prejudging and deciding in anticipation a part or whole of the suit according to the extent and scope of the mandatory injunction. For example, in one of the earliest cases, that of Robinson v. Lord Byron (1785) 1 Bro. C. C. 588 upon which, I think, most of the succeeding cases, as well as the passages in accredited text books rely, the Lord Chanceller, Lord Thurlow, after considerable doubt and hesitation as to the appropriate language, thought that before the hearing he might issue a mandatory injunction to the defendant Lord Byron. But the facts of that case were rather peculiar, and in truth, looking to the form the Lord Chancellor s injunction took, it would be hard to say that it really went much beyond an ordinary prohibitory injunction which of course can always be granted in such suits. The facts, as far as I remember them, were that Lord Byron had the control of large quantities of water and by means of sluices and dams he continually over flowed or starved the plaintiff s mill. The plaintiff brought a suit for an injunction restraining Lord Byron from thus playing fast and loose with the water supply and it was admitted on affidavits at the hearing of the interlocutory motion that the defendant was acting in this manner with the deliberate intention of extorting money from the plaintiff. Thereupon the Lord Chancellor framed an injunction the effect of which was that Lord Byron was restrained from using his power over the water in any other manner than he had been doing prior to the suit. Now it is clear that this is a very unusual injunction and when properly analysed its effect might be restricted to future acts, which is the effect of all true interlocutory prohibitory injunctions. But I admit that the line is drawn very fine, for practically in obeying the injunction it might be 10th open some sluices he had already opened.

(3.) Now the difficulty which appear to have felt about which was intended fied in the case of Allport v. Securities Company Limited. (1895) 72 L.T. 533. There the plaintiff according the defendant had removed The plaintiff accordingly bi shut off from all access to inconvenient back staircas defendant to reconstruct from any such interference was tried before North, J., interlocutory application grievous injury had all needed immediate remedy which was asked for in with merely as a grammal manner, " an injunction refrain from permitting the Now in so far as any future negative form of that kinition was meaningless, but the same as though the defendant to rebuild thinking and deciding the would by the learned Judge who only before him on affidavit the defendant could make In these circumstances it was little use in having at all