Mandatory Injunctions (Section 39)

A mandatory injunction is an order requiring the defendant to do a positive act — to pull down what was wrongfully built, to remove what was wrongfully placed, to restore what was wrongfully taken, or otherwise to undo a wrongful state of things created by him. Where the prohibitory injunction examined under preventive relief and Sections 36 to 37 commands abstention, the mandatory injunction commands action. Section 39 of the Specific Relief Act, 1963 codifies the relief.

The mandatory injunction sits within the wider injunction cluster — alongside perpetual injunctions under Sections 38 to 41 — but it has its own distinctive considerations. The relief is more drastic than a prohibitory order; courts therefore exercise the discretion with greater caution, and the threshold for granting it at the interlocutory stage is correspondingly higher.

Statutory anchor — Section 39

Two illustrations attached to the section sharpen the doctrine. First — A, by new building, obstructs lights to the access and use of which B has acquired a right under the Indian Limitation Act. B may obtain an injunction not only to restrain A from going on with the buildings, but also to pull down so much of them as obstructs B's lights. Second — A threatens to publish statements concerning B which would be punishable under the Indian Penal Code. The court may grant an injunction to restrain the publication, even though the publication may be shown not to be injurious to B's property.

Section 39 thus contains a twin command: a prohibitory part (preventing the breach) and a mandatory part (compelling the requisite acts). The two parts can co-exist in the same decree; the mandatory part is what makes the injunction mandatory.

Mandatory and prohibitory injunctions — the structural distinction

The cleavage runs through the form of the order. A prohibitory injunction restrains a party from continuing or commencing a wrongful act; the order is negative — “the defendant shall not”. A mandatory injunction requires the defendant to do a positive act for the purpose of putting an end to a wrongful state of things created by him, or otherwise in fulfilment of a legal obligation; the order is affirmative — “the defendant shall”. It is a command to undo what has been done, or to do something to restore things to their former condition.

An illustration helps. A is B's medical adviser. He demands money from B; B declines to pay. A then threatens to make known the effect of B's communication to him as a patient. This is contrary to A's duty. B may not only obtain a prohibitory injunction restraining A from doing so; he may also obtain a mandatory injunction ordering A to destroy all written communications made by B as patient of A. The first form of relief stops the wrong; the second form undoes the wrong's preparatory ground.

Where the relief by way of mandatory injunction lies, the court will not grant a negative injunction. A lessee in a cinema agreement who complains that the lessor is going to lease the cinema to another must sue for a mandatory injunction; he cannot make do with a mere negative injunction (Jawahar Theatre v Kasturibai (1961) A. M.P. 102).

Section 39 — the two ingredients

When a mandatory injunction is granted under Section 39, two elements must be addressed:

1. The court must determine what acts are necessary to prevent a breach of the obligation. The acts may take a variety of forms — pulling down a building, destroying copies produced by piracy of copyright or trade mark, removing trees on the defendant's land, removing overhanging branches, restoring a building to its original condition, providing maintenance to the widow of the testator (Bhagwan Kaur v Chetan Singh AIR 1988 P&H 198), or executing the documents necessary to effect a transfer.
2. The requisite act must be such as the court is capable of enforcing. The order must be capable of being supervised and policed; if the court cannot enforce its own order, the relief is denied.

Within the wider scheme and object of the Specific Relief Act, mandatory injunctions occupy a special place — they alone, among the injunctive reliefs, can undo a wrongful state of things created before the suit. The general principles for the grant of mandatory injunction are essentially those that govern prohibitory injunction, but the considerations are stricter (Puran Chand Sant Lal v Nitya Nand AIR 1958 Punj 460). The court will consider the balance of convenience and inconvenience, whether injury can be adequately compensated by money, the conduct of the parties, and the nature and extent of the encroachment or infringement of the rights of the party complaining. The discretion is exercised on the basis of the facts of each case (Pabbar Ram v Bhagwan Dass, 1987 All LJ 403).

It cannot be laid down that a mandatory injunction will issue only where pecuniary compensation would not afford adequate relief — even if that is a consideration, it is not the sole test. Equity is alive to the special situations in which the wrong has produced a continuing physical or proprietary harm that money cannot quite undo: an obstruction to light, an encroachment, a structural alteration, the diversion of water — these typically require the act itself to be undone.

Where the relief was granted — case-law illustrations

Co-owners. Where one co-owner without the consent of the other puts up a construction on joint land and the other sues for mandatory injunction, the court considers whether the plaintiff approached at the earliest opportunity. Unless there is a special equity in the defendant's favour, the relief is granted; but where the plaintiff stood by while the defendant proceeded with the construction, the court takes that into account. The relevance of the defendant having spent considerable money is also weighed; whether the loss to the plaintiff can be compensated by money payment is the recurring controlling question (Sardari Lal Gupta v Siri Krishan Aggarwal AIR 1984 P&H 439).

Injury to land. Trees on the defendant's land that damaged crops on the plaintiff's land and affected its fertility were ordered removed by mandatory injunction (Mahabir Chowdhary v Jadu Nandan Tiwari (1972) A.P. 338). Overhanging branches were ordered removed (Vishnu Jagannath v Vasudeo Raghunath (1919) 43 Bom 164). Where the defendant deliberately kept the height of his roof such that water flowed into the plaintiff's courtyard, a mandatory injunction issued to stop the flow of water — which, if allowed to continue, would mature into an easement on the plaintiff's property (Mathu Singh v Sanwalla (1971) A. Raj. 241). The latter case underlines the linkage between Section 39 SRA and the law of easements: the relief is sometimes the only way to prevent the inadvertent creation of an easement against the plaintiff.

Contracts and execution of documents. A court may uphold a contract by means of mandatory injunction, exercising the discretion more cautiously than it would in granting a prohibitory order. In Khawaza Bux v Mirza Md. Ismail (AIR 1984 All 83), a mandatory injunction issued directing the defendant to forthwith execute the necessary documents required to effectuate the transfer of a permit under the Motor Vehicles Act. The doctrinal anchor here connects with the wider rule under specific performance of contracts — the mandatory injunction is, in some forms, the close cousin of specific performance.

Breach of confidence. The communication of information regarded by the giver and accepted by the recipient as confidential, having a material connection with the giver's commercial interest, imposes on the recipient a fiduciary obligation to maintain that confidence unless the giver relaxes it (Schering Chemicals Ltd. v Falkman Ltd. (1981) 2 All ER 321). A mandatory injunction may issue to restore the confidence breached.

Breach of obligation indirectly running to the plaintiff. The obligation should normally be towards the plaintiff. But in Raghunath v Mathura Municipality (1950) A.A. 505, a mandatory injunction was exceptionally granted against a defendant who was under no direct obligation to the plaintiff but whose performance of an obligation to the Collector — who in turn owed a duty to the plaintiff — was a condition precedent to the enforcement of the plaintiff's right. An injunction was issued against the Commissioner of the Bangalore Corporation at the instance of tenants of a building when the Corporation issued a notice to the landlord for demolition without observing principles of natural justice (Commr., Corporation of the City of Bangalore v M/s Kapoorchand Brothers AIR 1982 Kant 23).

Mandatory injunction even after the act is completed

There is no rule preventing the court from granting a mandatory injunction where the injury sought to be restrained has been completed before the action is commenced. A mandatory injunction may be granted even after the injury has been completed, provided the plaintiff has not lost his right by delay or acquiescence (Smith v Smith (1875) LR 20 Eq. 500). Where there is a restrictive covenant (not to build) and there is a breach of it, the covenantee is entitled to an injunction without the necessity of showing damage (Lord Manners v Johnson (1875) 1 Ch. D. 673).

This is an important exam point: the mandatory injunction can act after the wrongful act, undoing it; the prohibitory injunction can only act against the wrongful act in the first instance (or against its continuation). The two reliefs together cover the spectrum from threatened wrong to consummated wrong.

Interim mandatory injunction — the higher threshold

The grant of a mandatory injunction at the interlocutory stage is permissible — but only in exceptional cases (Baban Narayan Landge v M.B. Toucher AIR 1989 Bom 247). It is only in very rare cases of extreme hardship and compelling circumstances that interim mandatory injunction is granted, and that too only to restore the status quo ante. The court has, for example, granted interim mandatory injunction directing the defendant-landlord to reconstruct a demolished wall and to make the premises habitable for the plaintiff tenant (Goverdhan Singh v Mulkh Raj AIR 1973 J&K 63).

The standard at the interlocutory stage is higher than the ordinary prima facie case threshold required for a prohibitory injunction. The plaintiff must make out an unusually strong and clear case — a strong case for trial. The court will not exercise the power unless it feels a high degree of assurance that at the trial a similar injunction would in all probability be granted, and that irreparable injury will be caused if the thing complained of is allowed to continue until the final decision (Indian Cable Co. Ltd. v Smt. Sumitra Chakraborty AIR 1985 Cal 248).

The Indian leading authority on the standard for interim mandatory injunction is Dorab Cawasji Warden v Coomi Sorab Warden (1990) 2 SCC 117, which crystallised the test that the plaintiff must show — a strong case for trial; that the balance of convenience is in his favour; that, if the injunction is refused, the resulting hardship to the plaintiff would be much greater than would result from granting it; and that the relief is necessary to prevent serious irreparable harm. Courts have applied this standard to flat-purchase cases, restoration of demolished walls, and tenant-protection scenarios.

Two illustrative outcomes: where the plaintiff had paid more than 95% of the value for the purchase of a residential flat and the defendants had been exploiting him by extracting amounts beyond those agreed, the Delhi High Court issued a mandatory injunction directing the defendants to hand over the flat without delay (Mrs. Vijay Srivastava v M/s Mirahul Enterprises AIR 1988 Del 40). And where during the continuance of a tenancy the landlady surreptitiously took possession in breach of the statutory protection under the Rent Act, the court restored the tenant to possession on an interlocutory application for mandatory injunction (Indian Cable Co. case, supra).

The plaintiff's conduct — clean hands and acquiescence

An injunction will not be granted where the plaintiff's conduct is not proper, or where pecuniary compensation is an adequate relief. Where a plaintiff had pledged shares with a bank against an overdraft and the bank brought a suit for recovery, threatening to sell the shares if the debt was not paid, the plaintiff's suit for injunction restraining the bank from selling the shares was refused (Haridas Mundra v National & Grindlays Bank Ltd. (1963) A. Cal. 132). Equity insists on the plaintiff's clean conduct and on the inadequacy of damages.

Delay and acquiescence cut into the relief in the same way they cut into prohibitory injunction. A plaintiff who lets the defendant proceed with a construction to the point of substantial expenditure, while standing by in full knowledge of his rights, will be denied the mandatory order. The bar is statutory in part — Section 41(g) of the SRA bars an injunction to prevent a continuing breach in which the plaintiff has acquiesced — but the equitable filter is broader, applying even where the breach is not strictly continuing. The interface with the declaratory decree under Sections 34 and 35 sometimes resolves a fact-pattern in which the plaintiff is too late for a mandatory injunction but still entitled to a declaration of right.

What cannot be granted under Section 39 — the negative limits

Where no relief for a mandatory injunction was ever claimed, it cannot be entertained on prayer or decreed by permitting an amendment of the plaint or by suo motu exercise of judicial discretion (State of U.P. v Prag Ice & Oil Mill, Aligarh 1983 All LJ 1155). Where a discretionary relief is disallowed on the ground that, in the circumstances, it is not a proper relief, it cannot be said that the civil court had no jurisdiction to entertain the suit; the suit fails not on jurisdiction but on the equitable assessment (Ram Awalamb v Jata Shankar 1968 All LJ 1108 (FB)).

Section 41 of the SRA continues to police the boundary. The mandatory injunction cannot issue to compel performance of a contract that cannot be specifically enforced (Section 41(e)) — for instance, a determinable contract or a contract for personal service. It cannot run against a non-party to the action so as to indirectly aid or abet the act enjoined; the proper remedy is contempt (Eliot v Klinger (1967) 3 All ER 141). And the equally-efficacious-relief filter under Section 41(h) applies — but with an important softening, since mandatory injunction is often the only remedy that can undo a completed wrong.

Damages in lieu of or in addition to mandatory injunction

Section 40 SRA, which allows damages either in addition to or in lieu of injunction, applies to mandatory injunctions under Section 39 just as it applies to perpetual injunctions under Section 38. Where damages are an adequate remedy, the injunction will not be granted; the plaintiff claiming demolition of a wall put up by an educational institution was decreed damages in lieu of mandatory injunction as he would not thereby suffer irreparable loss (Ram Shankar v Mahatma Gandhi Higher Sec. School (1979) A. A. 184). The conditions for awarding damages in lieu of injunction — drawn from Meux's Brewery Co. v City of London Electric Lighting Co. (1895) 1 Ch. 287 — are spelt out in damages in lieu of or in addition to injunction.

The interlocking of Section 39 with Section 40 is significant. Even where the court is inclined to refuse the mandatory injunction at trial, the plaintiff is not left without relief if he has properly pleaded damages in the alternative. The plaint must claim the damages — failure to do so, even as an alternative, prevents the court from granting them under Section 40 unless the court allows amendment under the proviso to Section 40(2).

Drafting note — mandatory injunction prayer

A well-drafted plaint for mandatory injunction typically prays for — (i) a mandatory injunction directing the defendant to perform the specific positive acts identified (e.g., to pull down a particular construction described by metes and bounds, to remove specified obstructions, to restore the wall to its prior condition, to execute and register the documents required for transfer of permit); (ii) a perpetual injunction restraining the defendant from continuing the wrongful course of conduct or repeating it; (iii) damages in addition to or in lieu of the injunction under Section 40 SRA; and (iv) costs. Where interim mandatory relief is sought, a separate application should set out the strong case for trial, the balance of convenience, and the irreparable injury — pitched higher than the ordinary prima facie threshold of Order XXXIX of the Code of Civil Procedure. Pleading discipline is critical: the requisite acts must be specified with sufficient particularity that a decree, if passed, is capable of execution.

Because the relief operates against a person and not against the land, framing the parties matters. Section 39 cannot reach a non-party, even one who is aiding the defendant's breach; the proper remedy in that scenario is contempt. The doctrinal companion to Section 39 in cases involving instruments — for instance, where the wrongful state of things consists of a forged or improperly executed deed — is the law of cancellation of instruments under Sections 31 to 33; the plaint may need to combine cancellation with mandatory relief, or in some cases rescission of contracts under Sections 27 to 30 where the underlying contract is voidable.

Exam angle — common MCQ traps

Three traps recur on Section 39. First, candidates apply the same standard to interim mandatory injunctions as to ordinary prima facie-based prohibitory injunctions; the standard is materially higher — Dorab Cawasji Warden requires a strong case for trial and a high degree of assurance that the relief would issue at trial. Second, students mistake the rule on completed wrongs — the mandatory injunction is not barred merely because the wrongful act has been completed before the suit; what bars it is delay or acquiescence. Third, the mandatory injunction is sometimes confused with specific performance; the two are different remedies even though they share equitable footing — and where the underlying contract is not specifically enforceable under Section 14, the mandatory injunction is barred by Section 41(e). The interlocking of Sections 38, 39, 40 and 41 is the architecture every fact-pattern eventually tests.