Mandatory Injunction under Section 39 the Specific Relief Act, 1963

It is to be noted that the mandatory injunction is one which orders the doing of some positive act by a Defendant, at times changing the status of the persons. However, a plea of mandatory injunction does not extend so far as to status of parties but only restores the Plaintiff is to their original position as per Section 39 of the Specific Relief act, 1963.

Section 39 of the Specific Relief Act reads as:

“When to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion issue an injunction to prevent the breach complained of and also to compel performance of the requisite act.”

Also, a mandatory injunction may be in the alternative form, but it must command something to be done, and with such positiveness as not to leave compliance with the mandate wholly at the pleasure of the persons enjoined. [H.C. Joyce on injunction]

A mandatory injunction relief can never be a vague one. It can be issued to compel the execution of certain work. The jurisdiction to grant a mandatory injunction relief is to be exercised with caution and be strictly confined to cases where the remedy by damages is not adequate for the purpose of justice, and restoring things to their former condition is the only remedy which will specify the requirements of the case. [Colls V. Home & Colonial Stores 1904 AC 193]

In Jagabandhu v. Rajmohan 78 Ind Cas 599, it is held that ‘a mandatory injunction is a most exceptional remedy and only one which is never to be applied except with the greatest safeguard for the prevention of waste as well as injustice’.

When a mandatory injunction is ordered as per Section 39 of the Specific Relief Act, 1963, two things are to be taken into account;

(1) The Court has to determine what acts are necessary in order to prevent the breach of obligation whether arising out of a contract or tort;

(2) The requisite acts must be such as the Court is capable of enforcing,

See Also : Lakshi v. Tara Prosanna, 31 C 944: 8 CWN 710

In the decision Shibsaran v. Amir 1900 AWN 190 it is observed that the granting or refusal of mandatory injunction is always a matter of discretion of the Court which is asked to grant such an injunction. The considerations which apply to the grant of a mandatory injunction are somewhat different from the considerations which govern the grant of prohibitory injunction although the general principles for the grant of both types of injunctions are essentially the same.  [Puranchand V. Nitya Nand AIR 1958 Punjab 460]

In order to secure the relief of mandatory injunction, the right, to restrain the violation of which the injunction is asked for, ought to be clearly made out; also that there is a present want to use that right, with which the obstruction complained of is an interference. [Bradburn v. Morris 3 Ch D 812] The relief by way of mandatory injunction is limited to cases of probability of extreme or very serious damage. [Darnell V. Pritchard 35 LJ Ch 223]

The relief of mandatory injunction shall be granted where damages will be no adequate remedy. [Ramsubbier V. Shenbagaratnam AIR 1927 Mad 357] The relief of mandatory injunction shall be ordered where a legal right of the Plaintiff is affected. Even a threat of invasion of right will warrant the relief of mandatory injunction being granted. [Meghu V. Kishun Ram AIR 1954 Patna 477]

If a Defendant has encroached upon the Plaintiff’s properties without right or an excuse, or has interfered with his rights or changed the condition of his own property, then, mandatory injunction shall be issued as a general rule. In such a situation, the Defendant cannot approach a plea of equity against the Plaintiff’s claim of restoration of property to the state it was in before the wrong was done. [Linch v. Union Institute, 159 Mass 406]. If injury constitutes a perennial trespass upon the plaintiff’s right a mandatory injunction shall be issued. [Mool Chand v. Chhoga, ILR 1961 Rajesthan 836: AIR 1961 Rajesthan 25]

If the purpose is dishonest or knowledge of trespass is brought home to the Defendant mandatory injunction shall issue and compensation is no remedy. [Lalji v. Vishwa Nath, AIR 1929 Bombay 137]

The removal of encroachment, by a mandatory injunction, is normally the rule. The consideration of Defendant’s inconvenience is not material. Moreover, the plea that plaintiff’s injury is not serious, is also not relevant. A mere delay in praying for the relief or sufferance of injury for a long period will not justify a refusal of relief.

In a case where a sign has been erected in 1950 encroaching upon the Plaintiff’s property by 8 inches to his knowledge and in the year 1955 when a notice of removal has been given by the Plaintiff, the Court granted the relief of mandatory injunction and not the compensation. [Kelsen v. Imperial Tobacco Company Limited, (1957) 2 All ER 343]

See Also : Kannan v. Venkatachalam [Madras High Court, 28-07-2011]

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