G.R. Luthra, J.
(1) Main question involved in the present revision petition under section 115 of the Code of Civil Procedure (in short code), which is directed against an order dated January 23, 1981 of Shri R. C. Chopra, Senior Sub Judge, Delhi, is as to whether a temporary mandatory injunction can be issued as an ad interim measure during the pendency of the suit and if so under what circumstances
(2) In Jangpura Extension Market, New Delhi, there is one block of building consisting of 10 shops on the ground floor and 10 flats on the first floor. There is one flat on every one of the shops. Flats are numbered as 1 to 10 and likewise shops are also numbered as 1 to 10. There is common stair case for approach to flats Nos. 1 and 2. There is another common stair case for approach to flats Nos. 5 & 6 and yet another one for approach to flat Nos. 7 and 8. There is no stair case for reaching flat Nos. 3 &4as well as flats Nos. 9 and 10. Flat No. 4 belongs to the plaintiff-respondent (hereinafter referred to the plaintiff). Flat No. 5 belongs to defendant petitioner (hereinafter referred to as the defendant.)
(3) According to the plaintiff she has been having access to flat No. 4 through flat No. 5, which was obstructed in the middle of March and thereafter on. April 7, 1.980 was blocked by construction of wall, shown as Cd in red colour in the plan attached with the plaint. thereforee) she bought a suit praying for the following reliefs :-
(A)a decree for mandatory injunction directing the defendant to demolish and remove the wall shown in red colour in the site plan at point Cd and to raise the old existing wall shown in green colour at point Fd thereby to restore the said premises in its old original condition so as to give free access to the plaintiff to her flat through the balcony and staircase.
(B)a decree for perpetual injunction restraining the defendant, his agents, and employees from creating any obstruction to the plaintiff's access to her flat through the balcony and staircase.
(4) Assertions of the plaintiff are as follows. Entire block of building belonged to the Rehabilitation authorities. Office of the Regional Settlement Commissioner, Jam Nagar House, New Delhi allotted flat No. 4 to Dr. Roshan Lal and executed a sale deed in the year 1960 in favor of the latter. Flat No. 5 was similarly allotted to one Nannu Mal. Dr. Roshan Lal used to have passage to his flat No. 4 through an open space in flat No. 5. In the year 1962 Nannu Mal tried to construct a wall for obstructing that. passage. Dr. Roshan Lal complained to Rehabilitation Authorities. After a lot of contest it was ultimately decided by the said authorities that Dr. Roshan Lal had right to have passage through flat No. 5 for access to flat No. 4. Thereafter there was also civil. litigation and ultimately there was a compromise. It was provided that a balcony would be constructed in which toilet of flat No. 5 would have a curve in the wall so as to give access to the occupant of flat No. 4 through aforesaid balcony. That compromise was acted upon, construction was made accordingly and Dr. Roshan Lal, had been using the passage from flat No. 5 for access to flat No. 4.
(5) Details of contest before the Rehabilitation Authorities and contest in the civil proceedings are, given in the plaint but the same are not being mentioned here because) those will be necessary at the final decision, of the case and not at this stage of issue of temporary injunction.
(6) Plaintiff purchased flat No. 4 from Dr. Roshan Lal while defendant purchased flat No. 5 from Nannu Mal: As already mentioned defendant removed curved wall of toilet in the balcony of flat No. 5 and constructed a wall with a view to obstruct passage giving approach to flat No. 4. That necessitated the suit.
(7) Plaintiff brought an application dated May 19, 1980 for issue of temporary mandatory injunction directing the defendant to demolish wall shown as Cd in the plan attached with the plaint which was causing obstruction in the approach to flat No. 4 from flat No. 5 and for further issue of injunction restraining the defendant from creating such obstruction till final disposal of the suit. That application was rejected by the trial court, on the ground that although there was prima facie case, yet as flat No. 4 was not occupied by plaintiff there would not be any irreparable injury to her for avoidance of which temporary injunction was needed. Plaintiff went in appeal which was accepted by learned Senior Sub Judge by way of passing impugned order, operative portion of which reads as under :-
'The defendant is hereby directed to make during the pendency of the suit, an opening in wall Cd of the height of six feet and width of three feet with a view to give access to the appellant or her attorney or her agents to her flat No. 4 and he is also directed to construct a wall between points F & D so as to separate the flats Nos. 4 & 5 during the pendancy of the suit. The defendant should comply with these orders within ten days, failing which the plaintiff/appellant through her attorney shall be free to put the above said directions in execution with the help of the labour engaged by them. It is, however, ordered that the plaintiff/appellant through her attorney should furnish a security of Rs.2,000.00 in the trial court within ten days with an under taking to reimburse the respondent for damages in case it is ultimately held by the trial court that the plaintiff/appellant was not entitled to the relief claimed by her. The defendant/respondent is further restrained during the pendency of the suit in the court below from obstructing the appellant, her attorney or other persons going to flat No. 4 in any way whatsoever from the staircase P to P1 and balcony ABCFG.'
(8) First contention of the learned counsel for the defendant is that mandatory injunction cannot be issued except in extremely rare cases and that too only for restoring status-quo existing on the date of the institution of the suit and that the same cannot to granted for bringing about new state of things. He, in this respect relied upon a judgment of Calcutta High Court in Man dan Pictures Ltd. v. Art Pictures Lid. and others : AIR1956Cal428 . He pointed out that in the present case even according to the allegations of the plaintiff wall directed to be demolished by the lower appellate court was constructed much before the institution of the suit that the said wall, as per allegations contained in the plaint was constructed on April 7, 1980 while the suit was brought much later on May 19, 1980, that thereforee, lower appellate court had no jurisdiction to issue temporary mandatory injunction.
(9) There is no doubt that the temporary injunction can be issued only in rare cases when there are compelling circumstances. But issuance of the same cannot be confined to only one situation of restoration of state of affairs as existing on the institution of the suit. Human affairs are so varying and unforeseen that such a rigid rule cannot be laid down. There can be very hard case where ends of justice demand issue of injunction. In Shirang Padmanabh Porob Dessai and another v. Mariana Francisco Jacques, A.I.R 1975 G & D 23 Additional Judicial Commissioner of Goa Daman and Diu held that a mandatory injunction could be granted in exercise of inherent powers under Section 151 of Code for removing a wall which was blocking a sewage and flow of rain water. That was a case of extreme hardship because but for issue of mandatory injunction there was bound to be flooding of the property of the plaintiff during rainy season. In the present case also there is extreme hardship to the plaintiff because there is no access to flat No. 4 at all and the same is lying absolutely blocked on account of construction of the wall in question by the defendant. At the request of the plaintiff Shri D.C.Pandy, Advocate was appointed as Local Commissioner. He went on the spot on July 7, 1980 and gave a report dated July 8,1980. According to him there was no other access to flat No. 4 except through flat No. 5 Actually that fact is not disputed. Further Local Commissioner found that a curved wall seem to have been demolished because remnants of the same were existing on the spot. It was on account of that curve in the wall that passage was left for having engross and agrees to flat No. 4. When there is such blocking of flat No. 4 lower appellate court was fully justified in granting mandatory injunction.
(10) The learned counsel for the petitioner contended that the plaintiff was living at Bombay, that flat No. 4 was not being used and that thereforee, there was hardly any inconvenience to the plaintiff if the same remained closed during the pendency of the suit and hence there was no justification for issue of temporary mandatory injunction. He pointed out that it was for that reason that trial court had refused to access to the request of the plaintiff for grant of such an injunction.
(11) Firstly, it is immaterial whether flat No. 4 is being used or not. The plaintiff has a right to use the same at any time she likes. Then there is an application dated December 15, 1980 supported by an affidavit of husband of the plaintiff (Shri Roop Chand) on record of trial court to the effect that he comes to Delhi very often and would like to stay in the flat if the passage of the same is not blocked. Further it is the case of the plaintiff that her attorney has been living in the flat with a view to manage and look after the same.
(12) I totally agree with the learned lower appellate court that there is prima facie case and the balance of convenience favors the plaintiff and it is absolutely necessary to issue injunction, as granted by the lower appellate court, for saving plaintiff from an irreparable injury of being totally debarred from using or having access in the flat No. 4.
(13) Hence I do not find any force in the petition and dismiss the same with costs. The petitioner has been given 15 days time to comply with the order of the learned lower appellate court. Parties have been directed to appear before the trial court on April 14,1981. A copy of this order Along with records of the trial court shall be sent to the trial court immediately. Counsel fee Rs. 200.00 .