1. The defendant is the appellant before me. The respondents filed the suit for a declaration that the irrigation `bode' marked in the plaint plan A, B, C, D is used by the plaintiffs for irrigating their land, and for the issue of a permanent injunction restraining the defendant from interfering with the said `bode'. It was alleged inter alia, that the land of the plaintiffs R. S. No. 346 marked as `P' in the plaint plan and the defendant's land R. S. No. 345/1, marked as `Q' in the plaint plan, originally belonged to one family. On partition, plot `P' fell to the share of the vendors of the plaintiffs and the plot `Q' fell to the share of the defendant's predecessors-in-title. At the time of partition, for the purpose of irrigating plot `P' the bode described as A, B, C, D was an easement of necessity. The plot `P' was purchased under the sale-deed Ex. A-1 dated 31-5-39 by the plaintiffs. The existence of the bode is mentioned in the said sale-deed. The vendors of the sale-deed had agreed to widen the bed of the bode. The plaintiffs and their predecessors-in-title were irrigating the land with the water that flows through the said A, B, C, D bode, for over the statutory period peacefully, uninterruptedly and as of right to the knowledge of the defendant and his predecessor-in-title. The plaintiffs' land had no other source of irrigation nor there exist any vents to draw irrigation water from the neighbouring lands. Since the defendant has been interfering and is threatening to close the bode claiming of the title to the bode and right to take water through the plaintiff's land and for the issue of a permanent injunction was prayed for.
2. The suit resisted by the defendant alleging inter alia that there was no bode in existence nor the plaintiff's land at any time used to get water through the bode on the land of the defendant. The plaintiffs with the assistance of nearly 200 people dug the bode for the first time on 26-5-66 a few days prior to the suit. The defendant immediately lodged a complaint with the police and issued necessary notices. It was therefore contended that the plaintiffs neither have any title nor have they any easementary rights either by way of necessity or by prescription, and in the circumstances, no injunction can be issued against the defendants.
3. The plaintiffs obtained an interim injunction which existed during the pendency of the suit.
4. The trial Court after framing appropriate issues and recording the evidence adduced by the parties, dismissed the plaintiff's suit, holding that the recitals of Ex. A-1 do not support the contention of the plaintiffs that the bode was in existence at the time when the said document was executed. On interpretation of the document it was found by the trial Court that the vendors had undertaken for the first time to dig the bode. It was further held that P. W. 2 admitted that on the date of the sale-deed, there was no bode in existence on the land of the defendant. It was also held that the plaintiffs have failed to prove that they have acquired rights in the A, B, C, D bode by grant or as an easementary right by prescription. A further finding was recorded that the suit bode was newly dug by the plaintiffs on 26-5-66 and that it was not in existence prior thereto. It is upon these findings that the trial Court dismissed the suit.
5. Dissatisfied with that judgment, the plaintiffs carried the matter in appeal to the Subordinate Judge's Court, Narsapur. Before the appeal was filed, the defendant in view of the findings given in his favour by the trial Court, closed the bode. On the date of the appeal there was no bode in existence. An application was filed before the appellate Court by the plaintiffs praying for a direction in the form of a mandatory injunction directing the defendant to dig the bode in his land which he had closed. That application was opposed by the defendant on the ground that in view of the categorical findings of the trial Court, the appellate Court could not issue a mandatory injunction. The appellate Court rejected the contention of the defendant and has directed as injunction in the form of a mandatory injunction asking the defendant to dig out the bode which he had closed. This conclusion was arrived at on a finding that Ex. A-1 of interpreted properly, shows the existence of the bode which the vendors and undertaken to widen. Relying upon the Commissioner's report, it was found that on the date of the suit, the bode was in existence. Keeping in view the balance of convenience, the lower Court thought that it would be proper to issue a mandatory injunction. It is this view that is now assailed in this appeal by the defendant.
6. The principal contention raised by Mr. K. B. Krishna Murthy, the learned counsel for the appellant is that under O. 39, Rule 1, Civil P. C., mandatory injunction cannot be issued. In any case, he contended that it is only in very rare and exceptional cases, that mandatory injunction can be issued and since no such circumstances existed in the case, the appellate Court erred in issuing a mandatory injunction.
7. In order to appreciate the implication of this contention, it is necessary to read Order 39, Rule 1 Civil P. C. Rule 1, Civil P. C. reads as follows:
'Where in any suit it is proved by affidavit or otherwise:-
(a) that any property is dispute, in s suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defraud his creditors; or
(c) that the defendant threatens to dispossess the plaintiff or otherwise causes injury or loss to the plaintiff.the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale removal or disposition of the property or dispossessing or otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders.'
8. A careful reading of this rule, leaves me in no doubt that the language of the rule is wide enough to include an order in the form of mandatory injunction. The words 'the Court may by order grant a temporary injunction ..............or make such other order for the purpose of preventing - damaging or - otherwise causing injury or loss as the Court thinks fit, until the disposal of the suit or until further orders' clearly take in their fold, an order in the mandatory form for doing of a particular thing. The language does not admit of any narrow interpretation and there is no reason also of so narrowly construing the said words. I have therefore no doubt that under O. 39, R. 1, Civil P. C., injunctions in the mandatory from can be issued.
9. It is true that in Rasul Karim v. Pirbhai Amirbhai, AIR 1914 Bom 42, Beaman, J., had held that the power to issue a mandatory injunction is not within the scope of Order 39, Rule 1, Civil P. C., and doubted whether a mofussil Court in India had power to issue such mandatory injunction. This view has however been not favoured in Champsay Bhimji & Co. v. Jamna Flour Mills Co., Ltd. AIR 1914 Bom 195. It was held that such a power exists in the mufassil Courts. The said decision of the Bombay High Court was expressly dissented from by the Madras High Court in M. Kandaswami Chetti v. P. Subramania Chetti, AIR 1918 Mad 588. It can now fairly be taken as settled that on an Interlocutory Application, injunction in a mandatory from can be issued by the Civil Courts. Such a power however has to be exercised in very rare cases and with due care and caution. It is of course plain that unless there are exceptional circumstances, the mandatory injunction would not normally be issued. It is no doubt plain that such a mandatory injunction can be granted to restore the status quo existing on the date of the suit. But the issue of such an injunction cannot be claimed as a matter of right nor can it be claimed as a matter of right nor can it be issued as a matter of course. The Court must satisfy itself about the necessity of issuing such a mandatory injunction and unless there are some compelling circumstances or what is ordinarily known as exceptional circumstances, the order in the mandatory form should not be issued. What has to be seen in such cases is whether the injury complained of is immediate and pressing and irreparable, and clearly established by proofs and not acquiesced in by the plaintiff. Since an order directly compelling the removal of the obstruction, cannot ordinarily be made upon an Interlocutory Application, the onus to bring out the exceptional circumstances lies heavily upon the party who seeks the issue of a mandatory injunction. The burden is all the heavier when the trial Court has dismissed the plaintiff's suit.
10. It is no doubt true that under O. 39 Rule 1, Civil P. C., it is in the discretion of the Court to issue or refuse to issue an injunction, and the appellate Court would not normally interfere in the exercise of the discretion. The discretion should however like other cases of discretion vested in the Courts, has to be exercised in accordance with the reason and on sound judicial principles. The grant of injunction is a serious matter and Courts should always take good care to grant an injunction in cases only where such an injunction is essential. The three things which must necessarily go into consideration, while considering the question of granting or refusing an injunction are now fairly well known. The prima facie existence of a right and its infringement, irreparable injury and the balance of convenience are the three things which must necessarily be properly considered. I have already said that the matter issuing injunction is discretionary. What must therefore follow is that even if these three things exist, in a proper case, the Court can refuse even then to issue an injunction. The rule is fully established that in cases where the facts are already established and the injury is real and the plaintiff acts promptly upon his acquired knowledge of the defendant's acts, a preliminary mandatory injunction may be granted although the act complied of was fully completed before the suit on the appeal was actually filed or preferred. Nevertheless as stated earlier, exceptional circumstances have to be made out by the appellant in order to entitle him to the issue of a mandatory injunction particularly when the trial Court has gone against him on all the issues.
11. Looked at in this background, I have no manner of doubt that the lower appellate Court has erred in the exercise of its discretion, in that it did not take into consideration the very relevant aspects of the case, whether the respondent before me had a prima facie right to the bode and that the defendant had in any manner that the defendant had in any manner infringed such a right. The lower appellate Court has singularly failed to take into consideration this very aspect of the case. It is no doubt true that on interpretation of Ex. A-1, and the Commissioner's report, it found that the bode existed on the date of the suit, or when the Commissioner inspected the site. But nowhere it has been found that on the date of partition, the bode was created by way of an easement of necessity or that the plaintiff had prima facie made out a case of easement by prescription. That was in my view very necessary for the plaintiffs to make out, so that they may claim the issue of mandatory injunction. The trial Court on an appreciation of evidence, had categorically found that at the time of partition, no such bode was constructed. It was in fact found that no such bode existed at any time prior to 26-5-66 when for the first time it was dug improperly by the plaintiff. In order to arrive at the conclusion, it had taken into consideration the documentary as well as the oral evidence. With a finding of this sort, the appellate Court should have been more concerned with the prima facie case for the plaintiff on this aspect of the case. Except reviewing the same material which was already considered by the Court below, no substantial reason his been shown in the order under appeal which would show the prima facie right of the plaintiff to the bode, whether in the form of easement of necessity or easement by prescription and that such right was at any time infringed by the defendant. The lower Court also, in my opinion, was not quite correct in characterising the injury which is likely to be caused to the plaintiff as an irreparable injury. The lower appellate Court should have avoided in going into the details of the very material which forms the subject of the appeal. The lower appellate Court his considered Ex. A-1, the oral evidence and the circumstances of the case which was necessary at the time of considering the main appeal itself. Any opinion formed for the purpose of an interim order is most likely to affect the ultimate disposal of the appeal, particularly when the subject-matter of the interim application is identical. In such cases unless there is likelihood of immediate irreparable injury to a party, the best course would be to expedite the disposal of the appeal itself. Unless as stated earlier, a prima facie cases exists and a serious injury is likely to be caused if an interim order is not granted. I do not see either any prima facie case existed for the appellant or he would suffer any irreparable injury, if no interim order is passed. In the circumstances it cannot validly be contended that the balance of convenience is on the side of the respondent, and I am, therefore, satisfied that the lower appellate Court has not kept that the lower appellate Court has not kept in view the essential requirements under O. 39, R. 1, Civil P. C., and there are no exceptional circumstances existing in the case which warranted the issue of a mandatory injunction. I do not wish to go into the question whether the respondent had alternative source of irrigation or not. It is enough, however, to mention that this Court had stayed the operation of the mandatory injunction which still is in vogue, and I do not think any serious damage would be caused immediately if a mandatory injunction sought for is refused. Before I part with the case, I would like to make an observation that the lower appellate Court will not be influenced in any manner, either by its previous decision or by any observation made by me in this judgment, while disposing of the appeal which must necessarily be disposed of on its own merits and in accordance with law. I would, however, in the circumstances of the case, direct the lower appellate Court to expedite the disposal of the appeal, that would, in my view, serve the purpose of the respondent. There are, however, no exceptional circumstances existing in the case which could persuade me to take the view taken by the lower Court, May be that the lower appellate Court on hearing the main appeal, may form a different view. But that cannot by itself be a ground for the issue of an interim order. I would, therefore, allow the appeal, set aside the order of the Court below, and dismiss the application filed by the respondent in the Court below for issue of a mandatory injunction. The appellant will get the costs.
12. Appeal allowed.