M KANDASWAMI CHETTI Vs. PSUBRAMANIA CHETTI

JUDGEMENT

(1.) Upon the question whether Courts in this country have the power by virtue of Order XXXIX, Rule 2, of the Code of Civil procedure to issue temporary injunctions in a mandatory form, we are not prepared to adopt the opinion expressed by Beaman, J., in Rasul Karim v. Pirubhai Amirbhai 24 Ind. Cas. 625 : 38 B. 381 : 16 Bom. I : B. 288.

(2.) The description of temporary injunctions in Section 53, Specific Relief Act, does not exclude injunctions of a mandatory nature, and in Israil v. Shamset Rahman 21 Ind. Cas. 861 : 41 C. 436 : 18 C. W. N. 176 : 19 C. L. J. 47. upon an application for an interim injunction, pending the disposal of a suit, it was ordered that defendant should not only be restrained from further erection of a building but that he should pull down so much of it as he had erected after he became aware of the institution of the plaintiff s suit. We also may observe that Shah, J, did not agree with the opinion of his learned brother in Rasul Karim v. Pirbhai Amirbhai 24 Ind. Cas 625 : 38 B. 3811 16 Bom. L. R. 288. and that two other Judges of the Bombay High Court took a different view from Beaman, J. in Champsey Bhimji & Go. v. Jumna Flour Bills Co. 28 Ind. Cas. 121 : 16 Bom. L. R. 566.

(3.) On the merits, however, we are of opinion that the present was not a case of such urgency as to make it necessary for the protection of the plaintiff s rights that the defendant should be made to remove the screen put up by him before the rights of the parties were heard and determined in the regular suit which was filed for this very purpose. The facts of this case resemble those of Bonner v. G. W. R. Co. (1883) 24 Ch. D. 1 : 48 L. T. 619 : 32 W. R. 190 : 47 J. P. 580., in which a temporary injunction was disallowed.