Constitution of India, Article 227 - Writ Petition under Article 227 challenging the orders passed by Civil Courts refusing to grant interim injunction under Order XXXIX, Rules 1 and 2 of the CPC could very well be maintainable – CPC (V of 1908), O. 39 R. 1,2.2019 SCeJ 37
Civil Procedure Code, 1908, Order XXXIX - Principle of moulding of relief could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage - The nature of order passed against the appellant is undeniably a mandatory order at an interlocutory stage - There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage - As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. (2018)2 SCeJ 1374 SUPREME COURT E@JOURNAL
Injunction - Interim mandatory injunction - An interim mandatory injunction is not a remedy that is easily granted - It is an order that is passed only in circumstances which are clear and the prima facie material clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction - Civil Procedure Code, 1908, Order XXXIX. (2018)2 SCeJ 1374
SUPREME COURT E@JOURNAL
Injunction - Principle of moulding of reliefs - Interim mandatory injunction - Invocation of principle of moulding of reliefs so also the exercise of power to grant mandatory order at an interlocutory stage, is manifestly wrong - To put it differently, while analysing the merits of the contentions the High Court was swayed away by the consent agreement between the respondents 1 and 2, inter partes to which the appellant was not a party - Thus, he could not be bound by the arrangement agreed upon between the respondents inter se - The appellant would be bound only by the agreement entered into by the appellant with respondent No.2 dated 10th March, 2003 and at best the tripartite agreement dated 11th September, 2009 - The respondent No.2 having failed to discharge its obligation under the stated agreement dated 10th March, 2003, with the appellant cannot be permitted to take advantage of its own wrong in reference to the arrangement agreed upon by it with respondent No.1/plaintiff and including to defeat the claim of the appellant in the arbitration proceedings initiated by the appellant against the respondent No. 2 – Mandatory interlocutory injunction passed by the high court directing the appellant to hand over 8 (eight) flats along with 16 (sixteen) car parking spaces under the Settlement Agreement between respondent Nos.1 and 2 inter partes, set aside - The settlement agreement between the respondent 1 and 2 being inter partes could not be thrust upon the appellant who had executed a separate agreement with respondent No.2 - In the factual scenario in which mandatory order has been passed against the appellant, in our opinion, is in excess of jurisdiction - Such a drastic order at an interlocutory stage ought to be eschewed - It cannot be countenanced - Civil Procedure Code, 1908, Order XXXIX.
Held, the appellant could be bound only by the agreement dated 10 March, 2003 in his favour and executed by him with the respondent No. 2 - Admittedly, the said agreement is the subject matter of arbitration proceedings, inter alia because respondent No.2 had failed to discharge its obligation thereunder - The appellant has already parted with the possession of flats to respondent No.2 in furtherance of agreement dated 10th March, 2003 and respondent No.1/plaintiff could be accommodated only against those flats - Asking the appellant to hand over additional 8 flats and 16 parking spaces by way of mandatory order, would be to superimpose the liability of respondent No.2 on the appellant for discharging its obligation qua respondent No.1/plaintiff in relation to the agreement entered between them and including the subsequent Settlement Agreement dated and Consent Terms between the respondent No. 1 and 2 to which the appellant is not a party. (2018)2 SCeJ 1374 / SUPREME COURT E@JOURNAL