Doctrine of ‘Interlocutory Mandatory Injunction’ & Principle of ‘Moulding of Relief’: Analysis

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Preface:

The relief of interlocutory mandatory injunctions are granted generally to preserve/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.

Since the granting of interlocutory mandatory injunction to a party who fails to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted 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 the following principles of caution that require to be met before an interlocutory mandatory injunction may be granted-

i.          The plaintiff praying for grant of interlocutory mandatory injunction must have a strong case for trial. That is, the standard should be higher than that of a prima facie case that is often required for grant of prohibitory injunction.

ii.         The grant of interlocutory mandatory injunction is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

iii.       The balance of convenience is in favour of the one seeking grant of relief of interlocutory mandatory injunction.

Though the above principles 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 judicial discretion.

In the matter of: Dorab Cawasji Warden V/s Coomi Sorab Warden & Ors, (1990) 2 SCC 117, it was observed that:

…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…”.

Jurisprudence behind the Grant of Interlocutory Mandatory Injunction:

A mandatory injunction can be granted on an interlocutory application as well as at the hearing of the lis, 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.

In the matter of: Samir Narain Bhojwani V/s Aurora Properties & Investments & Anr, (Civil Appeal No. 7079 of 2018, Supreme Court of India, Date of Decision: 21.08.2018), it was held that, 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 interest of justice demands that the status qua ante be restored by way of an interim mandatory injunction.

Principle of ‘Moulding of Relief’:

The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ‘cautious cognizance’ of the subsequent changes of fact and law to mould the relief. Notably, in the matter of: Ramesh Kumar V/s Kesho Ram, 1992 Supp (2) SCC 623, the Hon’ble Supreme Court of India quoted with approval the decision in the matter of: Lachmeshwar Prasad Shukul V/s Keshwar Lal Chaudhuri, AIR 1941 FC 5, in which it was held that:

…But with regard to the question whether the court is entitled to take into account legislative changes since the decision under appeal was given, I desire to point out that the rule adopted by the Supreme Court of the United States is the same as that which I think commends itself to all three members of this Court. In Patterson V/s State of Alabama, 294 US 600, Hughes, C.J., said:

‘…We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered…’…”.

That the decision in the matter of: Patterson (Supra) was followed with approval in the case of: Minnesota V/s National Tea Co., 309 US 551 (555), wherein Sulaiman, J. observed that, an appeal is by way of a re-hearing and the court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the appeal was heard. Moreover, an appeal being in the nature of a ‘re-hearing’, the courts in numerous cases have recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against.

In the matter of: Lekh Raj V/s Muni Lal & Ors, (2001) 2 SCC 762, it was observed that:

…In case subsequent event or fact having bearing on the issue or relief in a suit or proceeding, which any party seeks to bring on record, the court should not shut its door. All laws and procedures including functioning of courts are all in aid to confer justice on all who knock its door. Courts should interpret the law not in derogation of justice but in its aid. Thus, bringing on record subsequent event, which is relevant, should be permitted to be brought on record to render justice to a party. But the court in doing so should be cautious not to permit it in a routine. It should refuse where a party is doing so to delay the proceedings, harass the other party or doing so for any other ulterior motive. The courts should even before admitting should examine, whether the alleged subsequent event has any material bearing on issues involved and which would materially affect the result…

Similarly, in the matter of Pasupuleti Venkateswarlu V/s Motor & General Traders, (1975) 1 SCC 770, commenting upon the principle of moulding of relief, the Hon’ble Supreme Court of India held that:

…It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice- subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed

Although the ordinary rule of civil law is that the rights of the parties stand crystallized on the date of the institution of the suit yet the court has power to mould the relief in case the following three conditions are satisfied:

a.   That the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;

b.   That taking note of such subsequent events or changed circumstances would shorten the litigation and enable complete justice being done to the parties; and,

c.   That such subsequent event has been brought to the notice of the court promptly and in accordance with the rules of procedural law and thereby the opposite party has not been taken by surprise.

In a particular case a petitioner may be entitled to relief in law, but yet may be denied the relief in equity because of subsequent or intervening events, that is, the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled to may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may also be other circumstances which render it inequitable to grant the petitioner any relief over the respondent because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment.

Change in Law vis-à-vis Principle of Moulding of Relief:

So far as the aspect of ‘change in law’ vis-à-vis ‘principle of moulding of relief’ is concerned, it is necessary to understand the doctrine of prospective, retrospective and retroactive operation of statute. In the matter of: Badrinarayan Shankar Bhandari & Ors V/s Omprakash Shankar Bhandari, (2014) 3 MWN (Civil) 225, it was observed that:

i.          A prospective statute operates forward from the date of its enactment conferring new rights on parties without reference to any anterior event, status or characteristic;

ii.         A retrospective statute operates backwards, attaching new consequences, though for the future, but to an event that took place before the statute was enacted. It takes away vested rights. Substantive benefits which were already obtained by a party are sought to be taken away because of legislation being given effect to from a date prior to its enactment. The rules of interpretation of statute raise a presumption against such retrospective effect to a legislation. If the legislature has not expressly or by necessary implication given effect to a statute from a date prior to its enactment, the court will not allow retrospective effect being given to a legislation so as to take away the vested rights.

iii.       The intermediate category is called the retroactive statute, which does not operate backwards and does not take away vested rights. Though it operates forward, it is brought into operation by a characteristic or status that arose before it was enacted. For example, a provision of an Act is brought into force on 01.01.2014, and is applicable to those who are employed as on 01.01.2014. Here there are two elements:

(a) The Act is applicable as regards the person who took employment on 01.01.2014, and,

(b) The Act is applicable to a person who was already in employment and thus, an employee as on that date, that is, 01.01.2014.

Therefore, insofar as the Act applies to a person, who took employment on 01.01.2014 is concerned, the Act is prospective, and, insofar as the Act applies to a person, who had taken employment before 01.01.2014 is concerned, the Act is retroactive.

So far as application of ‘principle of moulding of relief by reason of change in law’ is concerned, the principle of moulding of relief is applicable only when there has been a change in law regards being had to statutes having either retrospective or retroactive effect. Moreover, there can be a situation where by pursuant to interpretation of a particular provision of a statute by the Hon’ble Supreme Court, relief was denied to the plaintiff/defendant by the trial court but later when the matter is taken up in appeal and is pending adjudication, the erstwhile decision of the Hon’ble Supreme Court gets reversed by a larger bench which gives an interpretation to that particular provision of the statute which finds favour with the appellant. Here also the appellant, that is the erstwhile plaintiff/defendant, can ask for relief (with or without modification) from the appellate court by relying upon the judgment of the larger bench of the Hon’ble Supreme Court of India.

Excursus:

There is a marked difference between moulding of relief and granting of mandatory relief at an interlocutory stage. So far as the latter is concerned, it 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. Prayer for moulding of relief can be allowed only when post the filing of the lis subsequent events come to fore which either make the relief previously asked for incomplete or infructuous.

Takeaways:

1.   In India the law of injunctions is broadly governed by Order XXXIX of the Code of Civil Procedure, 1908 and Sections 36 to 42 of the Specific Relief Act, 1963. Moreover, Section 94 (c) of the Code of Civil Procedure, 1908 states that in order to prevent the ends of justice from being defeated the court may, if it is so prescribed, grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold. Also, it is a settled law that under Section 151 of the Code of Civil Procedure, 1908 there is no bar on a court of law in granting injunction or supplementary orders in just cases.

2.   Principles governing grant of injunction orders:

i.          Ubi jus ibi remedium (For every wrong the law provides a remedy)

ii.         One who seeks equity must come with clean hands.

iii.       One who seeks equity must do equity.

iv.        Where equities are equal, the law will prevail.

v.         Equity follows the law.

vi.        Grant of injunction order is in the nature of an equitable relief, and the court has undoubtedly power to impose such terms and conditions as it thinks fit. Such conditions, however, must be reasonable so as not to make it impossible for the party seeking injunction order to comply with the same and there by virtually denying the relief which the party would otherwise ordinarily be entitled to.

3.   According to the purport of Section 39 of the Specific Relief Act, 1963, 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 grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

4.   The relief of interlocutory mandatory injunction can be granted to preserve or to 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 for the restoration of that which was wrongfully taken from the party complaining the breach. Grant of interlocutory mandatory injunction is based on following factors:

i.          The plaintiff should have a strong case for trial. That is, it should be of a higher standard than that of a prima facie case that is normally required for grant of prohibitory injunction;

ii.         The grant of interlocutory relief is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money; and,

iii.       The balance of convenience is in favour of the one seeking the relief.

The grant or non-grant of an interlocutory mandatory injunction ultimately rests in the sound judicial discretion of the court to be exercised in the light of facts and circumstances of each case.

5.   The wordings of Order XXI, Rule 32 (1) of the Code of Civil Procedure, 1908 indicate that for the purpose of enforcement of a decree for injunction, a judgment debtor can either be put in civil prison or his property can be attached or both of the above said means can be resorted to. Order XXI, Rule 32 (5) of the Code of Civil Procedure, 1908 indicates that the court can direct the judgment debtor to perform the act required in the decree or the court can get the said acts done through some other person appointed by the court at the cost of the judgment debtor.

About Shivam Goel

Shivam GoelShivam Goel; B.Com (H), LL.B. (Delhi University), LL.M. (NUJS, Kolkata); Author of: Corporate Manslaughter and Corporate Homicide: Scope for a New Legislation in India, Partridge India, 2015; Associate, S.G. & Co. (New Delhi); advocate.shivamgoel@gmail.com

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