Nature of Mandatory injunction should not be granted.

Nature of Mandatory injunction should not be granted.

Samir Narain Bhojwani vs.

M/s. Aurora Properties and Investments and Anr.

Para 13: The question as to whether respondent no. 2 was obligated to hand over the possession of 8 flats to respondent no. 1 as per the settlement agreement dated 4th November, 2016 and the Consent Terms dated 25th September, 2017 and whether the appellant had to hand over the keys of the said flats to respondent no. 1, were answered by the Single Judge in the affirmative, with the finding that the respondent No. 2 was the rightful owner of the balance 39.6 flats, including the 8 flats, out of the 88 constructed flats, and that the appellant had no rights over the same.

Para 15: The Single Judge thus directed the appellant, by a mandatory order, to hand over the keys and the possession of the said 8 flats to respondent no. 1 along with 16 parking spaces, recording that he had moulded the reliefs originally sought by respondent no. 1 in the changed circumstances of the case and in order to shorten the litigation and do complete justice.

Para 24: That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not an interlocutory stage. The nature of order passed against the appellant in 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 Dorab Cawasji Warden Versus Coomi Sorab Warden and Others,2 has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction.

“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.    

 

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