REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    4005    OF 2011

(Arising out of Special Leave Petition (C) No. 26974 of 2010)

 Purshottam Vishandas Raheja and another         …Appellants

             Versus

Shrichand Vishandas Raheja (D) through Lrs. and others …Respondents

J U D G M E N T

Gokhale J.

Leave granted.

2. This appeal by special leave by original Defendants Nos. 1  

and 2 seeks to challenge the Judgment and Order dated 12.8.2010  

passed by a Division Bench of the Bombay High Court allowing the  

Appeal  No.  550/2009  against  the  order  of  a  Single  Judge  dated  

9.9.2009 in Notice of Motion No. 1787/2009 in Suit  No. 1266/2009  

filed by Respondent No. 1 (since deceased).  The learned Single Judge

had granted a limited relief  to Respondent No.  1 (original  plaintiff)  

whereas  by  the  Order  passed  by  the  Division  Bench  the  Notice  of  

Motion taken up by the original Plaintiff had been made absolute in  

terms of prayers (a), (b) and (c), and thereby granting full  interim  

relief which was sought by Respondent No. 1 herein.  

3. In view of the demise of Respondent No. 1, the heirs of  

Respondent No. 1 have come on record of the appeal. Their case is  

that  the  interim  relief  as  was  sought,  though  in  the  nature  of  

mandatory relief, was necessary in the facts and circumstances of the  

case. As against that, the submission on behalf of the Appellants is  

that  the  learned  Single  Judge  had  exercised  his  discretion  

appropriately  and  there  was  no  reason  for  the  Division  Bench  to  

interfere therein. The Appellants also contend that the prayers in the  

Notice of Motion are the principal prayers in the plaint and, therefore,  

it amounts to granting a decree at the interlocutory stage which was  

not justified in the present case.  

4. The  question  for  determination,  therefore,  is  as  to  

whether, in the facts and circumstances of the case, the mandatory  

order as passed by the Division Bench was justified, or whether the  

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learned Single Judge having exercised his discretion appropriately, the  

Division Bench erred in interfering therein?  

5. The facts leading to this appeal are as follows:  

Respondent No.1 (the original Plaintiff) is the elder brother  

of Petitioner No.1 (Defendant No.1 in the Suit). Petitioner No.2 is the  

son of Petitioner No.1. The dispute between them is about the rights to  

a  property  which  is  being  developed  and  is  situated  at  Cadastral  

Survey No. 764, Mazgaon Division in Mumbai. The case of Respondent  

No.1 is that he is the exclusive owner of that property whereas the  

Appellants very much dispute the same. It is the case of Respondent  

No.1  that  by  Conveyance  Deed  dated  27.3.1981  as  rectified  by  

Rectification Deed dated 11.9.1986, he had purchased the property  

from the original  owners  and necessary  property  entries  are in  his  

name.  It is his case that he has taken steps to develop that property  

under the Development Control Rules by removing one old bungalow  

and several chawls situated thereon. Two buildings have already been  

put up on that property and the third one now named as ‘Siddhagiri’ is  

under construction.

6. It  is  his  further  case that  since  1999,  he has not  been  

keeping  well,  and therefore,  he executed three Powers  of  Attorney  

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from time to time. The first one was executed on 8.8.2000 in favour of  

his wife and Appellant No.1 which was for performing various acts and  

deeds on his behalf as his Constituted Attorneys in furtherance of this  

project.  He executed second Power of Attorney on 21.9.2005 again in  

favour of his wife and Appellant No.1 as well as Appellant No.2 which  

is  also  in  the  similar  fashion  as  the  first  one.  The  third  Power  of  

Attorney was executed on 24.10.2000 which  is  a  specific  power  in  

favour  of  Appellant  No.1  for  giving  evidence  on  behalf  of  the  

Respondent No.1.  It was his further case that though there was one  

Joint Account with Appellant No.1 in Indian Bank since 1993, one more  

Joint  Account  was opened on  10.10.2001,  this  time in  HSBC Bank  

which  was  particularly  for  carrying  the  transactions  relating  to  the  

property and developments thereon. It was his case that all amounts  

deposited in that account belong to him. He opened one more Joint  

Account  on 1.2.2008 in the State Bank of  India with the Appellant  

which was stated to be opened for payment of taxes etc. relating to  

the property.  

7. It is the case of Respondent No.1 that from time to time  

Appellant No. 1 surreptitiously withdrew amounts that were lying with  

the HSBC bank totalling to One Crore Forty Lakhs and invested in Birla  

Sun  Life  Mutual  Funds.  The  Appellant  No.  1  had  suggested  this  

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investment to him which he had declined, and thereafter unilaterally  

this  account  was  shifted.  On  Respondent  No.1’s  protest,  the  

investments in mutual funds were redeemed and substantial amount  

came back into the account. However, an amount of about Rs. 6.9  

lakhs  was  lost  as  it  could  not  be  redeemed.  In  view  of  this  

development, he lost confidence in his brother and therefore served a  

notice  dated on 2.3.2009 on the Appellants,  revoking all  the three  

Powers of Attorney.  He called upon both the Appellants to desist from  

acting on the basis of these Powers of Attorney. He called upon them  

further  to  return  the  title  deeds  of  the  property,  and  render  the  

accounts,  and  informed  them  that  he  had  appointed  one  Yogesh  

Jadhav as the Project Manager and asked the Appellants to acquaint  

him with various contractors as also the position of work and balance  

of payment to be made. He lastly called upon the Appellants not to  

operate the account with Indian Bank as well as with the HSBC bank  

and return all the bank papers.  

8. Appellant  No.1  thereafter  wrote  to  the  Manager  of  the  

Indian Bank on 24.4.2009 pointing out  that  the  account  with  their  

bank was initially  in  the joint  names of his  father and himself  and  

subsequently on the demise of his father; the first Respondent had  

been  joined  into  that  account.  According  to  the  first  Appellant,  he  

alone was entitled to operate the account and removal of an amount of  

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Rs. 65,500/- from that account by the first Respondent was illegal. He  

asked  the  bankers  to  ignore  first  Respondent’s  earlier  letter  dated  

9.3.2009 addressed to the bank.  This was followed by a detailed reply  

by the first Appellant to the first Respondent dated 12.5.2009 wherein  

it was specifically pleaded that the Powers of Attorney were executed  

for valid consideration and the same were coupled with interest in the  

concerned  property.  Thereafter,  he  pointed  out  that  although  the  

property  stood in  the  name of  first  Respondent,  as  per  the  family  

settlement which took place on 30.1.1992, two flats on the 15th floor  

of “Arihant Tower” (first building developed) together with terrace, one  

shop, one room and six chawls together with land appurtenant thereto  

and interest therein were allotted to him and his father.  He specifically  

pleaded that the Powers of Attorney were executed to enable him and  

his son to develop those properties. He pointed out that Respondent  

No.1 was the legal heir to the extent of only one fifth share of his  

father’s fifty percent (50%) share at the time of his demise, i.e. ten  

percent (10%) only.  

9. Thereafter, it was specifically pleaded that after the demise  

of their father in the year 1994, the first Appellant started work on the  

property  to  get  the  No-Objection  Certificate  from  the  government  

authorities, spent good amount and time on the construction, provided  

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initially  temporary  accommodation,  and  thereafter  permanent  

accommodation to the occupants of the shops and chawls, developed  

the property by spending crores of rupees. He, inter alia, coordinated  

with the architects, took steps to obtain permissions and No-Objection  

Certificates  (NOCs)  from  the  Housing  Board  and  the  Municipal  

authorities  and attended court  matters.  He further pointed out that  

since Respondent No.1 had failed to effect the necessary transfers of  

various  properties,  discussions  took  place  with  the  assistance  of  

lawyers for an understanding, and in spite of that he was making a  

dishonest claim on the property knowing fully well what had come to  

his share, viz.  only ten percent (10%) of the property.  He further  

pointed out that he had a larger counter-claim running into crores of  

rupees against Respondent No.1, and that the entire property was in  

his exclusive possession for several years and there was no question of  

appointing anyone else as Project Manager. With respect to the bank  

account, he specifically pointed out that the bank account was being  

operated by him in his  own independent  right  and the Respondent  

could not order him to refrain from operating the said account.  

10. This  led  to  the  first  Respondent  to  file  the  above  

mentioned suit against the appellants.  The Indian Bank, Hong Kong &  

Shanghai  Banking Corporation  (HSBC Bank) and the State Bank of  

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India  were  joined  as  defendants  No.3  to  5  respectively.  The  three  

principal prayers in the suit were as follows:

“[a] Defendant Nos. 1 and 2 and their servants and agents  be  restrained  by  a  permanent  order  and  injunction  of  this  Hon’ble Court from in any manner directly or indirectly acting  or  holding  themselves  out  as  Attorneys  or  Agents  of  the  Plaintiff or dealing with any of the properties or businesses of   the  Plaintiff,  including  property  bearing  Cadastral  Survey  No.764 of Mazgaon Division situate at 119, Chinchpokali Cross  Lane,  Byculla,  Mumbai  400  027  described  in  Exhibit  –  A-3  hereto or any premises thereon or under construction thereon  or any part thereof;

[b]  Defendant Nos. 1 and 2 and their servants and agents  be  restrained  by  a  permanent  order  and  injunction  of  this  Hon’ble  Court  from in  any  manner  directly  or  indirectly  entering upon property bearing Cadastral  Survey No.764 of  Mazgaon  Division  situate  at  119,  Chinchpokali  Cross  Lane,  Byculla, Mumbai 400 027 described in Exhibit – A-3 hereto or  any premises thereon or under construction thereon or any  part thereof;

[c] Defendant Nos. 1 and 2 and their servants and agents  be ordered and decreed to deliver to the Plaintiff documents   listed  in  Exhibit  –  U  hereto  and  all  other  documents,  correspondence and records belonging to the Plaintiff in the  possession or power of Defendant No.1 or Defendant No.2.”

The Notice of Motion taken out in the Suit had the following prayers:   

“(a) that pending the hearing and final  disposal  of  the Suit,   Defendant  Nos.  1and  2  and  their  servants  and  agents  be  restrained  by  interim  orders  and  injunctions  of  this  Hon’ble  Court from in any manner, directly or indirectly.

(i)Acting or holding themselves out as Attorneys or  Agents of the Appellant or dealing with any of the  properties or  businesses of the Plaintiff,  including  property  bearing  Cadastral  Survey  No.764  of  Mazgaon Division situate at 119, Chinchpokali Cross  Lane, Byculla, Mumbai 400 027 described in Exhibit   

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“A-3”  to  the  Plaint  or  any  premises  thereon  or   under construction thereon or any part thereof;

(ii) entering  upon  property  bearing  Cadastral  Survey  No.764  of  Mazgaon  Division  situate  at  119,  Chinchpokali Cross Lane, Byculla, Mumbai 400 027  described  in  Exhibit  “A-3”  to  the  Plaint  or  any  premises thereon or under construction thereon or  any part thereof;

(iii) operating or signing any Cheques on or giving any  instructions  relating   to  or  withdrawing  any  amounts form Account No. 417627508 in the joint  names  of  the  Plaintiff  and  Defendant  No.1  with  Defendant No. 3.

(iv) operating or signing any Cheques on or giving any  instructions  relating   to  or  withdrawing  any  amounts from Account  No. 002-236586-006 in the  joint names of the Plaintiff and Defendant No.1 with  Defendant No. 4.

(v) operating or signing any Cheques on or giving any  instructions  relating   to  or  withdrawing  any  amounts  from Account   No.  20006421901 in  the  joint names of the Plaintiff and Defendant No.1 with  Defendant No. 5.

  (b) that  pending  the  hearing  and  final  disposal  of  the  Suit,   Defendant Nos.1 and 2 and their servants and agents be directed by  an interim order and injunction of this Hon’ble Court to deliver to the  Plaintiff  documents  listed  in  Exhibit  “U”  to  the  Plaint  and all  other   documents, correspondence and records belonging to the Plaintiff in  the possession or power of Defendant No.1 or Defendant No.2

(c)    that pending admission, hearing and final disposal of the Suit;

(i)   Defendant  No.3  and  their  servants  and  agents  be  restrained by an order and injunction of this Hon’ble Court   from honouring any Cheques signed by Defendant No.1 on  or  acting  on  any  instructions  given  by  Defendant  No.1  relating to Account No.417627508 with Respondent No. 3  permitting any withdrawal of amounts by Defendant No.1  from Account No.417627508 with Defendant No. 3; (ii)   Defendant  No.4  and  their  servants  and  agents  be  restrained by an order and injunction of this Hon’ble Court   from honouring any Cheques signed by Defendant No.1 on  or  acting  on  any  instructions  given  by  Defendant  No.1  

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relating to Account No.002-236586-006 with Defendant No.  4 permitting any withdrawal of amounts by Defendant No.1  from Account No. 002-236586-006 with Defendant No. 4;

     (iii)   Defendant No.5 and their servants and agents be  restrained by an order and injunction of this Hon’ble Court   from honouring any Cheques signed by Defendant No.1 on  or  acting  on  any  instructions  given  by  Defendant  No.1  relating to Account No.20006421901 with Defendant No. 5  permitting any withdrawal of amounts by Respondent No.1  from Account No. 20006421901 with Defendant No. 5;”

11. Respondent No.1 filed affidavit in support containing the  

same submissions as above whereas the Appellant filed a reply based  

on the letters which have been pointed out above. Thereafter, further  

affidavits  from both  the  parties  were  filed.  Two sisters  of  the  two  

brothers have filed their joint affidavit in this Motion supporting the  

contention  raised  by  Appellants  herein  that  there  was  a  family  

settlement on 30.01.1992 and as per the terms of the settlement, the  

Byculla property came to Appellant No.1 and their father, and some  

other properties were given to Respondent No.1. They also supported  

the  submission  of  the  Appellants  that  only  on  the  demise  of  their  

father, the Respondent No.1 can claim ten percent (10%) share in that  

property and nothing more.  

12. In  view of  these pleadings when this  matter  was  heard  

before the learned Single Judge, he formed an opinion that it was not  

possible to hold at that stage whether the documents of powers of  

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attorney were merely powers simpliciter  given by the owner of the  

property, or whether they contained agency coupled with interest as  

contended by the Appellants herein. The Appellants had pointed out  

that although the property was purchased in the name of Respondent  

No.1,  almost  ninety  percent  of  the  amount  for  the  purchase  was  

contributed by Appellant No. 1.   Besides this,  the joint account in  

Indian Bank was opened way back in the year 1993 and the amount  

realized from the sale of the flats was being deposited therein. He was  

the person on the spot dealing with that property and only on the  

basis of the fact that the document of title stood in the name of the  

first  Respondent  the  interim  order  as  sought  could  not  have  been  

granted.  The plea of the Appellants had to be examined particularly  

when  their  sisters  were  supporting  the  Appellants  with  respect  to  

family settlement which was allegedly arrived at when their father was  

alive. Granting of the interim order as prayed would have meant that  

the  Appellants  will  be  required  to  withdraw  themselves  from  the  

concerned property.  They will  be restrained from entering into that  

property  or  holding  out  as  the  attorneys  of  Respondent  No.1  

concerning that property. The Order by the learned Single Judge also  

records that with respect to the stage of the construction it was the  

counsel for the Appellants who placed the facts before the Court on  

instructions that the construction was nearly complete, payments to  

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various  agencies  had been made by the first  Appellant  and at  this  

belated stage if  any interim order was passed it  would not only be  

inconvenient to Appellants, but also to the purchasers of the flats and  

other third parties.

13. The grant of interim order would mean discontinuance of  

the scenario on the spot as it existed at that point of time. Hence, the  

prayers  restraining  the  Appellants  as  attorneys  or  agents  of  first  

Respondent or restraining them from entering into the property could  

not be granted. As far as the prayer for the return of the documents in  

possession of the Appellants was concerned, the learned Judge noted  

that it was not possible to issue final orders with regard to them. He,  

however, recorded that appellants had agreed to forward photocopies  

of those documents to Respondent No.1.  The learned judge held that  

no prima facie case for a mandatory injunction was made out, yet in  

paragraph 22 of his order, he granted a limited interim order which  

reads as follows:  

“22. For the aforesaid reasons, it is held that no prima  facie case is made out by the plaintiff and considering that  the development and construction work has progressed to a  substantial  extent  and  only  some  finishing  works  are  remaining so also 23 flats have been already sold, interest of   justice  would  be  sub-served  if  it  is  directed  that  the  development and construction work can be completed at site.  The flats can be sold on the basis of the documents executed  but  all  sale  proceeds  must  be  deposited  in  the  concerned  joint bank account alone.  The joint bank account would be  

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allowed to be operated only to the extent of paying off the  liabilities insofar as the suit  property and its development,   which shall include payment to contractors and other agents.  However, such payment shall be made only on production of   necessary proof and it is only thereafter the first defendant  can release the sums from this joint account in favour of the  contractors/agents/third parties.  Needless to state that the  payment for the works which have been carried out through  any contractors, sub-contractors, agents would be made only  upon the Architect  of  the project  certifying the said works  and issuing the necessary and relevant certificates to certify  the  completion thereof.  Apart from paying off these monies,   the bank account shall not be utilized by the first defendant  for any other purposes.  The monies received from the sale of  23 flats are stated to be deposited in the said joint account  by the Plaintiff.

The documents are signed in favour of third parties by  either the plaintiff or plaintiff’s daughter.  As far as balance  27 flats  are concerned,  it  would be open to both sides  to  negotiate with prospective buyers with necessary intimation  to  each  of  them.   It  would  also  be  open  for  the  first   defendant  to  forward  the  offers  for  consideration  to  the  plaintiff  and  vice  versa.   All  documents  in  favour  of  such   purchasers  shall  be  signed  by  the  plaintiff  and/or  his  daughters  Laxmi  and  Sangita.   However,  this  entire  arrangement  is  without  prejudice  to  the  rights  and  contentions of both sides.  The plaintiff should furnish details   of all the offers received and agreements which are entered  into  by  him  to  the  first  defendant  so  as  to  enable  first   defendant to verify the particulars thereof.  It is only after   the  offers  are  intimated  in  writing  that  the  plaintiff  can  conclude the transactions and not otherwise.”  

14. Being  aggrieved  by  that  limited  order  and  seeking  full  

interim relief, Respondent No. 1 filed an appeal to the Division Bench.  

The learned Judges of the Division Bench were impressed by the fact  

that  the  conveyance  of  the  property  was  in  the  name  of  the  

Respondent and the flats were being sold in his name. Though the  

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learned Judges noted that the explanation given by the Respondent  

No.1 about  opening of  the joint  account  in the year 1993 was not  

satisfactory, they emphasized the fact that in the Powers of Attorney  

there was no reference to the family arrangement. They also posed  

the question that if  the Appellants had developed the property why  

there was no reference to those dealings in their tax returns. They,  

however, noted the fact that Respondent No.1 had not enough money  

to purchase the property in the year 1991 (though he contends that he  

had taken the money as loan from Appellant No.1). In view of these  

factors, they were persuaded by the fact that the Powers of Attorney  

had been revoked and in fact two flats which were supposed to be  

given to Appellant No. 1 were sold by the first Respondent in the year  

1993. The Division Bench, therefore, was of the view that a strong  

prima facie case was made out and an interim order will have to be  

granted.  Being aggrieved by this order, the present appeal has been  

filed.  

15. The  submission  on  behalf  of  the  Appellant  is  that  the  

totality of circumstances have got to be seen and the factum of family  

settlement along with the contribution to the purchase of the property  

by  Appellant  No.1  has  to  be  given  due  weightage.  It  was  also  

submitted on their behalf that the Appellants are the persons on the  

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spot  and  they  are  developing  the  property  and  none  of  the  

Respondents are available there. The flats are undoubtedly sold in the  

name of the first Respondent because the property stands in his name.  

In  any  case,  it  is  submitted  that  the  nature  of  powers  under  

documents have got to be examined on evidence with respect to the  

family  settlement  and  the  Appellants  cannot  be  non-suited  at  the  

Motion stage when it was a family dispute and particularly when the  

sisters who were parties to the family settlement were supporting the  

submission  of  the  Appellant.  The  Respondent,  on  the  other  hand,  

submitted that this was a fit case to grant the interim mandatory order  

as was granted by the Division Bench. The property belonged to the  

Respondent and it is only because he was not well that the Appellants  

carried out the development thereon. Now, they are taking advantage  

of the situation.  

16. We  have  noted  the  submissions  of  both  parties.  The  

question which comes up for our consideration is whether the learned  

Single Judge exercised his discretion in such an arbitrary or perverse  

manner that the Appellate Court ought to have interfered with it? The  

Learned Single Judge has passed a detailed order explaining as to why  

he was constrained to grant only the limited interim relief. It was in  

the interest  of  both the parties as well  as the flat  purchasers.  The  

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Order passed by the learned Single Judge is also on the basis that  

anything beyond the limited protection given at that stage would deny  

the opportunity to the Appellants to establish their case at the trial  

when it is not in dispute that Appellant No.1 contributed ninety percent  

of  the  purchase  money  to  the  property  and  he  took  steps  all  

throughout  to  develop  the  property.  Undoubtedly,  there  are  many  

inconsistencies in the stories that are put up by both the parties, and  

an interlocutory stage is not the one where one can reach at a definite  

conclusion one way or the other, particularly where the fact situation is  

as above and it would result into non-suiting one party.  

17. As stated above, the question comes up as to whether the  

order passed by the Division Bench was necessary.    Mr. Nariman,  

learned  counsel  appearing  for  the  Respondents,  relied  upon  the  

Judgment of this Court in Dorab Cawasji Warden v. Coomi Warden  

[(1990) 2 SCC 117] in support.  

18. As far as this judgment is concerned, it must be noted that  

it  was  a  suit  by  one  joint  owner  of  an  undivided  family  house  to  

restrain the other joint owners/their heirs from transferring their share  

of  the  house  and  from  parting  with  possession  to  a  third  

party/purchaser and restraining the purchaser from entering into and  

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or remaining into possession of the suit property.  This was on the  

basis of the mandate of Section 44 of the Transfer of Property Act and  

particularly  its  proviso.   This  Court  went  into  the  question  as  to  

whether interlocutory injunction of a mandatory character as against  

the  prohibitory  injunction  could  be  granted?    The  counsel  for  the  

Respondents  pointed  out  that  the  mandatory  injunctions  were  

essential  to  avoid  greater  risk  of  injustice  being caused as  held  in  

Films Rover International Ltd. v. Cannon Film Sales Ltd.  [(1986)  

3 All ER 87].  There is no difficulty in accepting that this Court did  

accept  that  test.   It,  however,  laid  down the law in  that  behalf  in  

paragraphs 16 and 17 as follows:

“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.

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(3) The balance  of  convenience  is  in  favour  of  the  one seeking such relief.

17. Being essentially an equitably 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.”    

19.  In Metro Marins and another v. Bonus Watch Co. (P) Ltd.  

and others [reported in (2004) 7 SCC 478], the Respondent had filed  

a suit for possession contending that the license of the Appellant to the  

suit property had expired.  The Respondent had prayed for a judgment  

on admission and alternatively an injunction directing the Appellant to  

immediately  hand  over  vacant  and  peaceful  possession  of  the  suit  

property.  The learned Single Judge of the Calcutta High Court who  

heard the interlocutory application, came to the conclusion that he did  

not find any reason to pass such an order in view of the fact that the  

suit was still pending and granting of such relief would tantamount to a  

decree before trial.  The Appellate Bench, however, re-examined the  

facts and observed that the litigation to be a luxury litigation directed  

the  Receiver  to  put  the  Respondent/Plaintiff  in  possession.   In  the  

appeal to this Court, the learned counsel for the Appellants pointed out  

that the Appellants were very much in possession of the premises and  

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the order passed by the Division Bench was contrary to the law laid  

down  in  Dorab  Cawasji  Warden  (Supra).   The  counsel  for  the  

Respondents, on the other hand, defended the order of the Division  

Bench by contending that the period of license having come to an end,  

mandatory injunction passed by the Division Bench was justified.  A  

Bench of Three Judges of this Court allowed the appeal and explained  

the  proposition  in  Dorab  Cawasji  Warden (Supra)  as  follows  in  

paragraph 9:

“9. Having considered the arguments of the learned  counsel  for the parties and having perused the documents  produced, we are satisfied that the impugned order of  the  appellate court cannot be sustained either on facts or in law.  As  noticed  by  this  Court,  in  the  case  of  Dorab  Cawasji   Warden v. Coomi Sorab Warden it has held that an interim  mandatory  injunction  can  be  granted  only  in  exceptional   cases  coming  within  the  exceptions  noticed  in  the  said  judgment.  In our opinion, the case of the respondent herein   does not come under any one of those exceptions and even  on facts it is not such a case which calls for the issuance of  an  interim  mandatory  injunction  directing  the  possession  being handed over to the respondent.”

20.    In  Kishore  Kumar  Khaitan  and  another vs.  Praveen  

Kumar Singh [reported in (2006) 3 SCC 312], this Court once again  

reiterated  the  principles  with  respect  to  the  interim  mandatory  

injunction in paragraph 6 in the following words:

“6. 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 materials   

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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.”  

21.   In our view, the learned Single Judge has considered all the  

relevant  aspects  of  the  matter  and  thereafter  passed  the  limited  

interim order whereby documents for sale of the flats will continue to  

be signed by the Respondents, though, the monies coming into the  

bank account thereafter will be utilized only for the purposes that are  

necessary, as stated in paragraph 22 extracted above.  The appellants  

have not been directed to be removed from the property inasmuch as  

they were the people on the spot carrying on the development prior to  

filing of  the suit.  The order  sought  by the respondents,  if  granted,  

would  mean  granting  all  the  reliefs  and  a  sort  of  pre-trial  decree  

without the opportunity to the Appellants to have their plea examined  

with respect to the family arrangement, which plea is supported by  

their sisters.   

22. The test  to  be applied to  assess  the  correctness  of  the  

order of the learned Single Judge would be whether the order is so  

arbitrary,  capricious  or  perverse  that  it  should  be  interfered  at  an  

interlocutory stage in an intra-Court appeal. In  Wander  Ltd.  and  

another vs. Antox India P.Ltd. [reported in 1990 (Supp) SCC 727],  

a bench of Three Judges of this Court has laid down the law in this  

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respect  which  has  been  consistently  followed.   In  that  matter,  

Appellant No.1 being the registered proprietor of a Trade Mark had  

entered  into  an  agreement  with  the  Respondent  permitting  it  to  

manufacture  certain  pharmaceutical  product.   On the  basis  of  that  

arrangement, the respondent applied for the requisite license from the  

authorities concerned.  In view the dispute between the parties, the  

Appellant  called  upon  the  Respondent  to  stop  manufacturing  the  

particular  product,  and  entered  into  an  arrangement  with  another  

company.   The  Respondent  filed  a  suit  and  sought  a  temporary  

injunction  to  restrain  the  Appellant  and  its  new  nominee-company  

from manufacturing the products concerned.  This was on the basis of  

continued user in  respect  of  the Trade Mark of  the product  by the  

Respondent.   It  was contended that user  was in his  own right.   A  

learned Single Judge of the High Court declined to grant the interim  

injunction  which  was  granted  in  appeal  by  the  Appellate  Bench  of  

Madras  High  Court.   This  Court,  in  its  judgment,  held  that  the  

Appellate Bench had erred firstly, in misdirecting with respect to the  

nature of its powers in appeal and secondly, in basing its judgment on  

the alleged user of the Trade Mark. A  bench  of  Three  Judge  of  this  

Court laid down the law in this behalf in paragraph 14 of the judgment  

which is as follows:

“14.  The  appeals  before  the  Division  Bench  were  against the exercise of discretion by the Single Judge.  In  

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such appeals, the appellate court will not interfere with the  exercise  of  discretion  of  the  court  of  first  instance  and  substitute its own discretion except where the discretion has  been shown to have been exercised arbitrarily, or capriciously  or  perversely  or  where  the  court  had  ignored  the  settled  principles of law regulating grant or refusal of interlocutory  injunctions.  An appeal against exercise of discretion is said  to  be  an  appeal  on  principle.   Appellate  court  will  not   reassess the material and seek to reach a conclusion different   from the one reached by the court below if the one reached  by that court was reasonably possible on the material.  The  appellate court would normally not be justified in interfering  with  the  exercise  of  discretion  under  appeal  solely  on  the  ground that if it had considered the matter at the trial stage  it would have come to a contrary conclusion.  If the discretion   has been exercised by the trial  court  reasonably  and in  a   judicial manner the fact that the appellate court would have  taken a different view may not justify interference with the  trial court’s exercise of discretion.  After referring to these  principles Gajendragadkar, J. in Printers (Mysore) Private Ltd.  v. Pothan Joseph. (1960) 3 SCR 713

….These  principles  are  well  established,  but  as  has  been observed by Viscount Simon in Charles Osenton & Co.   v. Jhanaton’… the law as to the reversal by a court of appeal   of  an order made by a judge below in the exercise of his   discretion is well established, and any difficulty that arises is  due only  to the application of  well  settled principles  in  an  individual case’.

The appellate judgment does not seem to defer to this   principle.”   

     It is to be noted that the proposition laid down has been  

consistently followed thereafter.  

23. For  the  reasons  stated  above,  in  our  view,  the  present  

case, is not one where mandatory interim injunction, as sought by the  

Respondents was justified.  The learned Single Judge had passed a  

reasoned order, and, in no way, it could be said that he had exercised  

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the discretion in an arbitrary, capricious or perverse manner, or had  

ignored  the  settled  principles  of  law  regarding  grant  or  refusal  of  

interlocutory injunction.  There was no reason for the Appellate Bench  

to interfere and set aside that order.  

24.          This appeal is, therefore, allowed.  The order passed by the  

Division Bench is  set aside and that of  the learned Single Judge is  

restored.  We make it clear that we have not made any observations  

on  the  merits  of  the  rival  claims  of  the  Appellants  as  well  as  the  

Respondents.  We have confined  ourselves  only  with  respect  to  the  

question as to what should be the interlocutory arrangement in the  

facts and circumstances of the present case.  In our view, the order  

passed by the learned Single Judge was well reasoned and justified in  

that context.   

In the facts of the case, the parties will bear their own costs.  

………………………………..J. [ P.Sathasivam]

………………………………..J. [ H.L. Gokhale ]

New Delhi May 6, 2011.

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