Mandatory Injunctions

An injunction is an order or a decree by a Court by which a party is enjoined from committing a certain act or omission. The law relating to the grant of mandatory injunctions in general civil cases can be found in Chapter VII of the Specific Relief Act, 1963. A mandatory injunction is an injunction in a positive form, requiring a person to perform a particular act. It provides a remedy where it is not possible to restore the parties to the condition there were in before the act or omission complained of, unless the wrongdoer is made to undo the wrong which he has committed. It is usually granted when, to prevent a breach of obligation, it is necessary to compel the performance of certain acts.

The purpose of granting such an injunction is to compel a party to restore things to the condition in which they were before the plaintiff was wronged. Where the possession of certain property of a party has been violated pending legal proceedings, an order of mandatory injunction can be passed to restore such possession. An order for a mandatory injunction can be passed even at the stage of execution by an executing court. There is no requirement to amend the pleadings for this purpose.

The following five factors must be considered for the grant of a mandatory injunction:

(i)                 Whether there has been a breach of a legal obligation; 

(ii)               Whether it is necessary to maintain the parties as they currently are (status quo);

(iii)              What acts are necessary in order to prevent a breach of the obligation;

(iv)              Whether these acts are such as the court is capable of enforcing; and

(v)               Does money afford adequate relief?

A Court may also from grant a mandatory injunction where the injury sought to be restrained has stopped before the proceedings are commenced; but it will only do so in cases to prevent further serious damage. However, 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, the courts have evolved certain guidelines towards the grant of the same:

(i)                 The plaintiff has a strong case for trial, i.e., it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(ii)               It 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 such relief.

An order of a mandatory injunction can be passed at an interlocutory stage. For the grant of interim mandatory relief, a higher degree of satisfaction of the Court is required as one required of a restrictive injunction.

The principle of acquiescence is sought in cases where a relief of mandatory injunction is sought against a defendant to do an act which invades the plaintiff’s right. If the plaintiff fetters his own exercise of right by allowing the defendant to do an act, he would be barred by acquiescence in such a case. The situation would be different where a right to immovable property of the plaintiff is sought to be invaded by the defendant trespassing into the property and putting up a construction. If a suit is filed for recovery of possession and as an ancillary relief where a mandatory injunction for removal is claimed, then acquiescence cannot be claimed. The plaintiff shall be entitled to recover possession of the whole property. The situation, however, would be different if the suit is not for recovery of possession, but the suit is only for mandatory injunction.

The limitation under Article 135 of the Limitation Act, 1963 for the execution of a decree for mandatory injunction is three years.

The execution of a mandatory injunction is governed by Order XXI, rule 32(1) of the Code of Civil Procedure, 1908 by attachment of property and detention in civil prison, and under Order XXI, rule 32(5) by directing that the act may be done so far as practicable by the decree-holder, or some other person appointed by the Court. 

Once a decree for mandatory injunction is passed ordering the removal of any obstruction, it is not necessary to file another suit for removal of a new obstruction. Non-compliance of a decree of mandatory injunction is a continuing disobedience of the decree, and can be enforced in execution proceedings of the decree itself by attachment and imprisonment.