CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

HIGH COURT OF DELHI CS(OS) 804/2022
DR AJIT ANNASAHEB SHINDE ….. Plaintiff
       versus
INDIAN ORTHOPAEDIC ASSOCIATION & ORS….. Defendants

• Specific Relief Act Section 39 Section 151 CPC Suit for declaration and permanent injunction with respect to Indian Olympic Association Election, 2022 Provision of Section 39 provides for mandatory injunction which may be granted by Court in case it is deemed necessary that to prevent breach o obligation, certain act is required be omitted or compelled to be done – Such injunction may be granted to aggrieved party when, first, there is obligation on part of defendant to perform certain acts but same breached and secondly, relief sought by aggrieved party is enforceable by court – Therefore, apparent that relief under section 39 of Specific Relief Act, 1963 is not one which may be granted in routine manner – Instead, stricter judicial scrutiny is to be exercised in cases where at the interim stage, mandatory injunction is sought – In present case, plaintiff has sought relief against defendants in form of directions from High Court to preserve data of Elections and to provide him with same – Plaintiff made several allegations against defendants to allege that IOA Elections, 2022 not conducted in transparent, legal and valid manner – Averments pertaining to illegalities in election process are subject matter of suit on merits which are not entered into at this stage for purposes of adjudicating instant application – Hence, dismissal of suit for mandatory injunction upheld.

Relevant Paras:

24. The provision provides for a mandatory injunction which may be granted by a Court in case it is deemed necessary that to prevent a breach of an obligation, a certain act is required be omitted or compelled to be done. Such injunction may be granted to an aggrieved party when, first, there is an obligation on part of the defendant to perform certain acts but the same has been breached and secondly, the relief sought by the aggrieved party is enforceable by the court.
25. The Hon’ble Supreme Court in the matter of Samir Narain Bhojwani vs. Aurora Properties & Investments, (2018) 17 SCC 203, elaborated upon the scope of Section 39 of the Specific Relief Act, 1963 and opined as under: M “24. …… 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. This Court in Dorab Cawasji Warden v. Coomi Sorab Warden [Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117] , has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paras 16 & 17, after analysing the legal precedents on the point as noticed in paras 11-15, the Court went on to observe as follows : (SCC pp. 126-27)
“16. The relief of interlocutory mandatory injunctions
are thus granted generally to preserve or restore the
status quo of the last non-contested status which
preceded the pending controversy until the final
hearing when full relief may be granted or to compel
the undoing of those acts that have been illegally done
or the restoration of that which was wrongfully taken
from the party complaining. But since the granting of
such an injunction to a party who fails or would fail to
establish his right at the trial may cause great injustice
or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party
who succeeds or would succeed may equally cause
great injustice or irreparable harm, courts have
evolved certain guidelines. Generally stated these
guidelines are:
(1) The plaintiff has a strong case for trial. That is,
it shall be of a higher standard than a prima facie
case that is normally required for a prohibitory
injunction.
(2) It is necessary to prevent irreparable or serious
injury which normally cannot be compensated in
terms of money.
(3) The balance of convenience is in favour of the
one seeking such relief.
17. Being essentially an equitable relief the grant or
refusal of an interlocutory mandatory injunction shall
ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying
them as prerequisite for the grant or refusal of such
injunctions would be a sound exercise of a judicial
discretion.”
(emphasis supplied)
25. The Court, amongst others, rested its exposition on the dictum in Halsbury’s Laws of England, 4th Edn., Vol. 24,
“948. Mandatory injunctions on interlocutory
applications.—A mandatory injunction can be granted
on an interlocutory application as well as at the
hearing, but, in the absence of special circumstances,
it will not normally be granted. However, if the case is
clear and one which the court thinks ought to be
decided at once, or if the act done is a simple and
summary one which can be easily remedied, or if the
defendant attempts to steal a march on the plaintiff,
such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that
when he receives notice of an interim injunction it is
completed, a mandatory injunction will be granted on
an interlocutory application.”
26. The principle expounded in this decision has been
consistently followed by this Court. It is well established that 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.
[See Metro Marins v. Bonus Watch Co. (P) Ltd. [Metro Marins v. Bonus Watch Co. (P) Ltd., (2004) 7 SCC 478], Kishore Kumar Khaitan v. Praveen Kumar
Singh [Kishore Kumar Khaitan v. Praveen Kumar Singh, (2006) 3 SCC 312] and Purshottam Vishandas
Raheja v. Shrichand Vishandas Raheja [Purshottam
Vishandas Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73 : (2011) 3 SCC (Civ) 204] .]

26. Therefore, it is apparent that the relief under Section 39 of the Specific Relief Act, 1963 is not one which may be granted in a routine manner. Instead, stricter judicial scrutiny is to be exercised in cases where NEUTRAL CITATION No.2023:DHC:3492
CS(OS) 804/2022 Page 10 of 13 at the interim stage, mandatory injunction is sought. As reiterated by the
Hon’ble Supreme Court in the aforementioned judgment, while adjudicating upon an application for mandatory injunction, the important consideration is that such a relief may 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. It is only in cases where
the circumstances invite intervention of the court at an interim stage for the reason that there is a likelihood of alteration of the status quo that a
relief of mandatory injunction may be granted.

For read the Judgment click here

DR AJIT ANNASAHEB SHINDE versus INDIAN ORTHOPAEDIC ASSOCIATION & ORS. JUDGMENT DELHI HIGH COURT

 

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