The Law and Principles of Mandatory Injunction

Jojy George Koduvath.

Classification of Injunctions

1. On the basis of the Nature of the Order of the Court.

  • (a) Prohibitory Injunction, and  
  • (b) Mandatory Injunction

2. On the basis of Duration of the Period of the Order.

  • (a) Perpetual Injunction, and
  • (b) Temporary Injunction

Relevant provisions of the Specific Relief Act

 S.2 (a)ObligationObligation” includes every duty enforceable by law
S.4Specific relief Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws: Sp. relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.
S.34 Declaration  Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:  Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not inexistence, and for whom, if in existence, he would be a trustee.
    S.36 Preventive relief how granted.- Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
  S.38  Perpetual injunction  Perpetual injunction when granted (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-         (a) where the defendant is trustee of the property for the plaintiff;         (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;          (c) where the invasion is such that compensation in money would not afford adequate relief;          (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
S.39Mandatory injunctionsMandatory injunctions: 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.
S.41Injunction when refused  Injunction when refused: An injunction cannot be granted- (a) to restrain any person from prosecuting a judicial proceeding …..; (b) to restrain instituting …  any proceeding in a court not sub-ordinate … (c) to restrain any person from applying to any legislative body (d) to restrain – proceedings in a criminal matter; (e) prevent breach of contract performance of which not be specifically enforced; (f) to prevent – an act of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained …. except in case of breach of trust; [(ha) if it would impede or delay the progress or completion of infrastructure project or interfere with the continued provision of relevant facility …..] (i) when the conduct of the plaintiff or his agents …. disentitle him to be the assistance of the court; (j) when the plaintiff has no personal interest in the matter.

Temporary Injunction Granted when- Prima Facie Case and Balance of Convenience; Also to Preserve Status Quo

In Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai, 2006 5 SCC 282, it is pointed out by our Apex Court that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorized and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorized, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorized and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality.

In Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867 : (1990) 2 SCC 117, our Apex Court also held that he 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.

Temporary Mandatory Injunction and Ad Interim Mandatory Injunction

Temporary Mandatory Injunction is granted rarely; because, it may tantamount to granting the final relief itself.

Grant of Ad Interim Mandatory Injunction (ex-parte, till the appearance of opposite party) is still restricted, as it is given only in very exceptional cases and on strong circumstance to protect the rights and interest of the parties.

Following are the Two Landmark Decisions on this subject

  • (1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867
  • (2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697

(1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867 : (1990) 2 SCC 117, is the laudable decision on interim mandatory injunction. It is laid down in this decision that interlocutory mandatory injunctions are granted to:

  • (i) preserve or restore the status quo ante, of the last non-contested status which preceded the pending controversy, or
  • (ii) to compel the undoing of those acts that have been illegally done, or
  • (iii) the restoration of that which was wrongfully taken from the party complaining.

It is also pointed out that the court would consider the prospect of granting of a mandatory injunction finally, after trial; and delineated that a fresh state of affairs cannot be allowed to be created by the grant of such an injunction.

(2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697, is the decision in the matter of elections in a Co-operative Society where the Apex Court moved forward and stated that Interim Mandatory Injunction can be granted if the court is satisfied that refusal of injunction would tantamount to dismissal of the main petition itself and there would be nothing left to be allowed when the final pronouncement  comes.

1. Dorab Cawasji Warden v Coomi Sorab Warden, AIR  1990 SC 867 (Doctrine of higher standard)

In this decision it is held as under:

  • “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.”

The Apex Court had relied on English decisions as under:

  • ” 12. In Evans Marshall & Co. Ltd. v. Bertola SA (1973) 1 All ER 992 the Court of Appeal held that:
    • “Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter or law, precluded its grant;”.
  • The case law on the subject was fully considered in the latest judgment in Films Rover International Ltd. v. Cannon Film Sales Ltd. (1986) 3 All ER 772, Hoffmann, J. observed in that case:
    • “But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as guidelines, i.e. useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the wrong decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or Would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.”
  • Again at page 781 the learned Judge observed :
    • “The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be no dispute about the use of the term mandatory to describe the injunction, the same question of substance will determine whether the case is normal and therefore within the guideline or exceptional and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would be in fact carry a greater risk of injustice than granting it even though the court does not feel a high degree of assurance, about the plaintiffs chances of establishing his right, there cannot be any rational basis for withholding the injunction.”
  • and concluded that :
    • “These considerations lead me to conclude that the Court of Appeal in. Locabail International Finance Ltd. v. Agroexport (1986) 1 All ER 901 at p. 906, (1986) 1 WLR 657 at p. 664 was not intending to fetter the courts discretion by laying down any rules which would have the effect of limiting the flexibility of the remedy, to quote Lord Diplock in the Cyanamid case (1975) 1 All ER 504 at p. 510, (1975) AC 396 at p 407. Just as the Cyanamid guidelines for prohibitory injunctions which require a plaintiff to show no more than an arguable case recognise the existence of exceptions in which more is required (compare Cayne v. Global Natural Resources plc (1884) 1 All ER 225), so the guideline approved for mandatory injunctions in Locabail recognises that there may be cases in which less is sufficient.
  • On the test to be applied in granting mandatory injunctions on interlocutory applications in 24 Halsburys Laws of England (4th Edn.) para 948 it is stated:
    • “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.”

2. Deoraj v. State of Maharashtra, AIR 2004 SC 1975

Deoraj v. State of Maharashtra, AIR 2004 SC 1975 : (2004) 4 SCC 697, pertained to elections in a Co-operative Society. The Apex Court observed in this case that if interim orders were not granted, by the time the matter came up for final hearing, there might be nothing left to grant a relief.  It is pointed out that grant of interim mandatory relief may be justified where withholding of interim relief may tantamount to dismissal of the main petition itself (in spite of a prima facie case). Therefore, it was observed that if there was a very strong prima facie case, although the interim mandatory order amounted to granting final relief itself, considering the balance of convenience and irreparable injury, the Court could allow the interim relief. At the same time, the Court cautioned that this order should be passed in rare cases in compelling circumstances, alone. The Apex Court held as under:

  • “12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.”

Other Decisions

It is pointed out in Samir Narain Bhojwani v. Aurora Properties and Investments, 2018-8 MLJ 227: 2018-10 Scale 33, that the principle expounded in Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867, has been consistently followed by the Apex Court in decisions including Metro Marins v. Bonus Watch Co. (P) Ltd, (2004) 7 SCC 478, Kishore Kumar Khaitan v.  Praveen Kumar Singh, (2006) 3 SCC 312, and Purshottam Vishandas Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73).

In Dr Syed Afzal v. Rubina Syed Faizuddin, 2020-1 CivCC 412; 2020-1 RCR (Civ) 185, the Supreme Court has observed that though the court has power to grant interim mandatory injunctions,  it did not mean that the same could be granted even without giving opportunity of hearing to the opposite side, especially when the main appeal was pending for the six years. The Supreme Court observed in Hammad Ahmed v. Abdul Majeed, 2019 – 14 SCC 1, that ad interim mandatory injunction is granted only ‘on strong circumstance so that to protect the rights and interest of the parties’.

Injunction is a possessory remedy.

Courts protect settled possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769). Injunction is a possessory remedy. (See: Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402. Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533. Referred to in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145. )

Courts grant injunction without seeking declaration when title is clear, simple and straight-forward; and when no serious denial or cloud on title (not any apparent defect):   Anathula Sudhakar v. Buchi Reddi: AIR 2008 SC 2033.

But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.

Settled Possession and Established Possession

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:

  • “13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:­ 

  • “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.”

‘Possession is good against all but the True Owner’

This principle is declared in Parry v. Clissold, (1907) AC 73. Though the Supreme Court accepted this principle in Nair Service Society Ltd. vs. K.C. Alexander and others, AIR 1968 SC 1165, it was with a clarification. It reads as under:

  • “(17) In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73, to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly:
  • “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”

When Declaration is Needed for grant of Injunction

See Blog: Declaration and Injunction

  1. As Introductory/preliminary to grant (1) Injunction or (2) Recovery (Unnikrishnan v.  Ponnu Ammal: 1999 1 KLT 298: AIR 1999 Ker 405)
  2. When serious denial or cloud on title (or right): Anathula Sudhakar v. P Buchi Reddy AIR 2008 SC 2033.
  3. Asserted title or civil right is not clear, simple and straight-forward; or, not well-established (lawful possession). (Eg. inchoate rights like title on adverse possession).
  4. Complicated or complex questions of fact and law to be ‘adjudicated’ (Anathula: 2008 SC 2033; Eg. Legitimacy of a child; Validity of Marriage: AIR 2018 SC 334;2013-3 KLJ 411; 2018-4 KLT 870; 2018-3 KLT 664;
  5. Termination of service on illegality: AIR 1951 Mad 870. Qted. in 1989 ILR (Kar) 3320; 2008 4 All LR 39. See also: AIR 1958 SC 886: Q. in 2016 2 SCC 779.
  6. Complicated questions of title: Mt. Azia v. Sukhai Biswas, AIR 1970 Pat 136; Government of AP v. Thummala Krishna Rao, (1982) 2 SCC 134; State of Rajasthan v. Smt.Padmavati Devi, JT 1995 (5) S.C. 481 .) Eg. Decree, instrument or contract stands as an insurmountable obstacle – though Plaintiff not a party : Md. Noorul Hoda V. Bibi Raifunnisa : (1996) 7 SCC 767
  7. Make clear what is doubtful – as to legal character and title. ILR 1970-2 (Del) 433: Eg. Suit by trespasser claiming adverse possession: Darshan Kumari v. Kaushalya Devi: 1990 JKLR 208; 1991 KashLJ 1 (R.P. Sethi, J) for dispelling cloud: AIR 1953 (Gau) 162.

When Injunction granted without declaration

  • When title or civil right is well established (or clear, simple and straight-forward).
  • When title is clear and simple, the court may venture a decision on the issue of title, even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, the court should not decide the issue.
  • Persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration. (Anathula: 2008 SC 2033)
            1Title: clear,simple and straight-forward; or settled right (lawful possession)Well established possession No Substantial questions of fact and law exists (2017 -7 MLJ 627; 2005-4 MLJ 258): Unnikrishnan VS Ponnu Ammal: 1999 1 KLT 298: AIR 1999 Ker 405.No serious denial or cloud(not any apparent defect) on title (or right):   Anathula: AIR 2008 SC 2033. (Such as settled or lawful possession: Anathula: AIR 2008 SC 2033; infringement of trade mark or copyright: 2004-3 SCC 90). Void acts:2000 SC 1099; 2009-4 KLT 840; (2002) 9 SCC 28; AIR 1977 SC 1718; 2013 SC 1226. Fraud on character of a document (not contents): Prem singh Vs. Birbal: (2006) 5 SCC 353
2Particular instances specified in Sec. 38 (2) & (3) of the Sp. Rlf. Act
1. Breach of Contractual obligations(including Bylaw provisions).
2. Trustee invades plaintiff’s right.  
3. No standard for ascertaining damages.
4. Compensation in money would not be adequate relief.
5. Necessary to prevent multiplicity of judicial proceedings.
3Fiduciary (attached to trust) obligation: 41(h).
4No lis (no dispute for defendant): 2010-168 DLT 132
5Facts judicially noticeable: Evd. Act, S. 57
6Law confers a right; or, Right arises under an Act. (Eg. with expression “shall be void”):(2015)7 SCC 601; 2003 SC 4102 Sec. 74 Contract Act: while resisting a claim of return of advance or to support forfeiture of earnest money, the defendant can resist it without a counter claim. In Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136, it is held: “The Section applies whether a person is a plaintiff or a defendant in a suit.”
7Established custom/customary-rights. Village pathway, Marumakkathayam
8Constitutional right: Art. 19, 21, 300A etc.
9Estoppel against defendant S. 115, 116 (tenant), 117 (licencee) Evd. Act
10Acquiescence against defendant
11Already declared (in earlier civil case).

Cloud – Explained in Anathula – Para 12

A cloud is raised when some apparent defect in his title or some prima facie right of a third party. Not a cloud, if trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title.  (It should be serious cloud: Kurella Naga (2008) 15 SCC 150: (q. in Muddasani: AIR 2016 SC 2250)

When declaration refused  (S. 34 Proviso)           

  • 1. Further relief possible and not sought for (S. 34 Proviso). Where relief of partition is to be sought for, it should be prayed.
  • 2. Where declaration is a vehicle to launch the weapon of injunction, or recovery – if injunction or recovery itself cannot be granted (or, if granted ineffective: Brutum-fulmen applies)

When declaration given without further relief:

  1. No further relief possible on legal character/status or title.
  2. Pecuniary rights (S. 34 is limited to legal character and right to property): AIR 1971 MP 65

No decree for recovery unless ‘present right to the possession’

While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) 2020-1 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But it is pointed out that in such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.  

Ayodhya Case – Proceeded on the principle: ‘The court is the protector of all charities’.

[See Blog: M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes]

It is held in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) as under:

  • When a Shebait is negligent in its duties or takes actions that are hostile to the deity or improperly alienated trust property or refuses to act for the benefit of the idol or where the Shebait’s actions are prejudicial to the interest of the idol, it becomes necessary to confer on a next friend the right to bring an action in law against the Shebait; and a worshipper has an ad hoc power of representation to protect the interest of the idol.
  • The court can craft any number of reliefs, including the framing of a scheme. The question of relief is fundamentally contextual and must be framed by the court in light of the parties before it and the circumstances of each case.

It is clear that the our Apex Court has rendered the above edicts adopting the view that ‘the court is the protector of all charities’.

Declaration on ‘Legal Character’ & Anathula Sudhakar

See Blog: Declaration and Injunction

Sec. 34 refers to declaration of status (legal character) or right.  Anathula Sudhakar refers to denial/cloud in property rights alone; and not status (legal character).  

The same principle can be brought in ‘status’ (legal character)also. It is held in  AIR 1995 Ori 59; Quoted in: 2013 3 ILR(Ker) 259; 2013 3 KLJ 411; 2013-3 KLT(SN) 60.

Declaration is given when cloud hovering the on (or denial of) ‘Legal Character’ also.

  • Eg. Legitimacy of a child; Validity of Marriage: AIR 2018 SC 334;2013-3 KLJ 411; 2018-4 KLT 870; 2018-3 KLT 664;
  • Termination of service on illegality: AIR 1951 Mad 870. Qted. in 1989 ILR (Kar) 3320; 2008 4 All LR 39. See also: AIR 1958 SC 886: Q. in 2016 2 SCC 779.

Declaration sought only as an ancillary relief – limitation

(Declaration under Sec. 34 is not exhaustive.)

A suit for declaration is governed by Article 58 of the Limitation Act and the period of limitation is three years. But it is not applicable for declaration sought only as an ancillary relief.

In S. Krishnamma v. TS Viswajith, 2009 (4) KLT 840, it is observed that when a declaration regarding the void character of a document is sought for, the period of limitation for the suit would not be the period provided for declaration. The consequential relief sought for is to be treated as main relief for governing the period of limitation. (See Mrs. Indira Bhalchandran Gokhale  v. Union of India -AIR 1990 Bom 98). Therefore, declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.

Locus for Plaintiff in Infraction of a Municipal Building Regulation

A neighbour who is affected by an illegal construction, or a construction in infraction of a Municipal regulation, will have the locus and can maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely the look-out of the local authority. It was observed that unless, by express words or by necessary implication he is debarred (Sec. 9 CPC) from doing so, civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said: “If you have an infringement of a legal right there is a right of action without actual damage being proved….  Where you have an interference with a legal right, the law presumes damage.”

Relying on the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima w/o Caetano Joao v. Village Panchayat of Merces, AIR 2000 Bom 444, it was observed that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.

(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994 2 MahLR 869; 1994 1 MhLJ 256; D.  Thomas v. N.  Thomas1999 2 MLJ 260; Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das: 2015 1 GauLR 133.)

In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:

  • “An illegal construction of a cinema building materially affects the right to of enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”

Andhra Pradesh High Court in Bhagwan Das v. Harish ChetwalIt held as under, as appears from the reported judgment, Sarada Bai v. Shakuntala Bai AIR 1993 AP 20 t:

  • “The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
  • If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. The answer is quite apparent and it is in the affirmative.”


You find in this cluster

  1. Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
  2. Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
  3. Sec. 91 CPC and Suits Against Wrongful Acts
  4. Vesting of Property in Trusts
  5. Clubs and Societies, Bye Laws Fundamental
  6. The Law and Principles of Mandatory Injunction
  7. Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
  8. Unstamped & Unregistered Documents and Collateral Purpose
  9. Pleadings Should be Specific; Why?
  10. How to Contradict a Witness under Sec. 145, Evidence Act
  11. Rules on Burden of Proof & Adverse Inference
  12. Presumptions on Documents and Truth of its Contents
  13. Best Evidence Rule in Indian Law
  14. Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
  15. Village Pathways and Right to Bury are not Easements.
  16. Sec. 65B,  Evidence Act: Certificate for Computer Output
  17. Legal Personality of Trustees and Office Bearers of Societies
  18. Interrogatories: When Court Allows, When Rejects?
  19. Can a Party to Suit Examine Opposite Party, as of Right?
  20. ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
  21. Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
  22. Incidents of Trust in Clubs and Societies.
  23. Management of Societies and Clubs, And Powers of General Body and Governing Body
  24. How to Sue Societies, Clubs and Companies
  25. Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
  26. Notary-Attested Documents: Presumption, Rebuttable
  27. Judicial & Legislative Activism in India: Principles and Instances
  28. Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
  29. Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
  30. Custom & Customary Easements in Indian Law
  31. What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
  32. Constructive Res Judicata and Ineffectual Res Judicata
  33. Is Decree in a Representative Suit (OI R8 CPC) Enforceable Against Persons Not Eo-Nomine Parties?
  34. Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
  35. Court Interference in Election Process
  36. Significance of Scientific Evidence in Judicial Process
  37. ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
  38. Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
  39. Article 370: Is There Little Chance for Supreme Court Interference
  40. Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
  41. M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
  42. Vesting of Property in Societies and Clubs
  43. Juristic Personality of Societies and Clubs
  44. Societies and Branches
  45. Effect of Registration of Societies and Incorporation of Clubs
  46. Clubs and Societies: General Features
  47. Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership
  48. Adverse Possession: An Evolving Concept
  49. What is Trust in Indian Law?
  50. Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
  51. CAA Challenge: Divergent Views
  52. Secularism & Freedom of Religion in Indian Panorama
  53. Relevancy, Admissibility and Proof of Documents
  54. Forfeiture of Earnest Money and Reasonable Compensation
  55. Declaration and Injunction
  56. Can Legislature Overpower Court Decisions by an Enactment?

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