Calcutta High Court: In an appeal against the trial court’s order to postpone an application for a mandatory injunction to the final hearing of the suit on the ground that the relief sought was in final form and should not be granted at the interlocutory stage, a division bench comprising of Harish Tandon* and Madhuresh Prasad, JJ., disagreed with the trial court’s reasoning and emphasised that the court has the power to grant mandatory injunctions at the interlocutory stage. The Court held that the impugned order was not in line with established legal principles and directed the demolition of the constructed rooms as per the Advocate-Commissioner’s reports.
Brief Facts
In the instant matter, the plaintiff-appellant filed suit seeking partition and separation of shares in a joint property. An application for a temporary injunction was disposed of on 07-02-2019, directing the maintenance of status quo. Subsequently, an application for the appointment of an Advocate-Commissioner was granted to investigate the alleged construction by Respondent 1 in violation of the status quo order. The first report by the Advocate-Commissioner reported that the construction is in progress and the second report, which was submitted after 3 months, reported that the construction is complete.
The plaintiff filed an application under Section 151 of the Civil Procedure Code, 1908 (CPC), seeking a mandatory injunction for the demolition of the constructed rooms. The trial court vide order dated 08-10-2020 postponed the application filed under Section 151 of the CPC, stating that such relief cannot be granted at the interlocutory stage. The trial court directed the consideration of the application at the final hearing of the suit. Aggrieved by the impugned order dated 08-10-2020 passed by the trial court, the appellant preferred the present appeal challenging the same.
Appellant’s Contentions
The appellant contended that the Advocate-Commissioner’s reports established a violation of the temporary injunction because construction violated the order, as open courtyard had ceremonial significance. Reference was made to legal precedents, including the Division Bench judgment in Indian Cable Company Ltd. v. Sumitra Chakraborty, 1985 SCC OnLine Cal 31, Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117 and Surjit Singh v. Harbans Singh, (1995) 6 SCC 50, to support the contention that the court has the power to pass a mandatory injunction at the interlocutory stage.
Legal Principles
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Courts are not denuded of power to grant mandatory injunction at interlocutory stage.
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Courts should be circumspect but can grant such relief in exceptional cases.
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An act done in defiance of an injunction order is illegal and must be remedied by the court.
Court’s Assessment
The Court found construction, mentioned in Advocate-Commissioner’s reports, in violation of the order and questioned the maintenance of status quo. The Court emphasized that the court, when faced with a violation of an order, should not be powerless to remedy the wrong by passing a mandatory injunction.
The Court criticised the trial court’s notion that evidence was scanty, stating that Advocate-Commissioner reports provided sufficient proof of the violation. The Court disagreed with the trial court that a mandatory injunction in final form cannot be granted at the interlocutory stage. Reference was made to Indian Cable Company Ltd. (Supra), emphasising that the court has the discretion to grant such relief in exceptional cases. Citing Dorab Cawasji Warden (Supra), the Court emphasised that the court is not denuded of powers to grant a mandatory injunction at the interlocutory stage.
Court’s Decision
The Court set aside the impugned order of the trial court and upheld the mandatory injunction for demolition. The Court directed the demolition of the constructed rooms based on the Advocate-Commissioner’s reports. The Court directed the demolition to be undertaken in the presence of the Advocate-Commissioner who submitted the reports. The respondent 2 was tasked with the demolition, and if not completed, the plaintiff was authorized to undertake it at the cost of the respondent 1. The appeal and applications were disposed of with no order as to costs.
[Sanat Kumar Kundu v. Dilip Kundu, 2023 SCC OnLine Cal 5620, order dated -12-2023]
*Judgment by Justice Harish Tandon
Advocates who appeared in this case :
Mr. Samrat Dey Paul, Counsel for the Appellant
Mr. D.K. Adhikari, Mr. Samir Kumar Adhikari, Counsel for the Respondent 1
