Holding

An interim mandatory injunction may be granted only when the plaintiff clearly establishes prima facie possession on the date of the status‑quo order and dispossession thereafter; absent such specific findings, the order is beyond jurisdiction and must be set aside.

Summary

Kishore Kumar Khaitan filed a suit seeking a declaration of tenancy and a perpetual injunction against the owners of a building, also applying for an interim injunction. The trial court refused an ex‑parte injunction; the Additional District Judge then issued an ex‑parte order directing the parties to maintain the status‑quo without specifying what that status‑quo was. The plaintiff claimed he was in possession on 19 June 1998 (the date of the status‑quo order) and was dispossessed on 20 June 1998, and obtained an interim mandatory injunction restoring possession. The defendants challenged this order under Section 115 of the CPC; the High Court set it aside, remanded for reconsideration, and after a second hearing the District Court again granted the injunction. The Supreme Court, hearing a petition under Article 227, held that an interim mandatory injunction can be granted only when the plaintiff clearly establishes prima‑facie possession on the date of the status‑quo order and dispossession thereafter; the lower courts had failed to make such specific findings, acted without jurisdiction, and therefore the injunction must be set aside. The appeal was allowed, overturning the orders of the High Court and the Additional District Court.

Issues considered

Whether an ex‑parte order directing parties to maintain status‑quo without specifying its content is proper at the initial stage of litigation
Whether an interim mandatory injunction may be granted without explicit findings that the plaintiff was in possession on the date of the status‑quo order and was dispossessed thereafter
Whether the Additional District Judge acted without jurisdiction in granting the interim mandatory injunction
Whether the High Court correctly exercised its jurisdiction under Article 227 in upholding the injunction
Whether the document relied upon by the plaintiff satisfies Section 107 of the Transfer of Property Act to create a lease

Legislation cited

Code of Civil Procedure, 1908s. 115, s. 151, s. 39(1), s. 39(2), s. 43(1), s. 43(2)
Constitution of Indias. Article 227
Transfer of Property Act, 1882s. 107

Subjects

tenancyinterim injunctionmandatory injunctionstatus quojurisdictionArticle 227Civil Procedure CodeTransfer of Property Actleaseex parte order

Judgment

l

A KISHORE KUMAR KHA!TAN AND ANR.
v.
PRA VEEN KUMAR SINGH

FEBRUARY 13, 2006

B (S. B. SINHA AND P. K. BALASUBRAMANYAN, JJ.]

Civil Procedure Cude 1908-0. 39, I and 2 and 0. 43, R. /-Ex-parte
ad-interim order to maintain status quo--Plaintifffiling suit for declaration
C of his status as a tenant on the basis of a letter written on the letter head of
a Limited Cumpany and signed by defendant- Also seeking gram of interim
injunction pending the suit restraining defendants from interfering with his
possession of suit property-Trial Court refusing tu pass such order -District
Court, on appeal, passing an ex-parte ad interim order directing the parties
to maintain status quo without indicating what the status quo was-Held, the
D order was not proper in an original suit--The swd order should not have been
passed at the initial stage of a litigation.

Civil Procedure Code 1908--Ss. 115, 151 and 0. 39, R. I and 2 and +
0.43, R. I-Interim Mandatory lnjunction---Grant of Remedy--Transfer of
Property Act 1882--S. 107--District Court issuing an ad-interim order to
E maintain status quo--Plaintiff's plea that he was dispossessed of the suit
premises subsequent to said order-District Court passing interim mandatory
injunction directing the defendant to restore possession of the suit property to
plaintiff-No specific and adequate prima facie finding that plaintiff was in
possession on the date offilling of suit and passing of status quo order and
F that he had been subsequently dispossessed in violation of the status quo
order-Genuineness and validity of the document witnessing lease not
examined-Held, order passed without proper or adequate finding on these
aspect would be without jurisdiction-Mandatory injunction being an
extraordinary relief, such an order not supported by necessary findings
justifaing its grant can not be sustained.
G
Constitution of India-Article 227-Jurisdiction of High Court-Held, it
is to be invoked to correct errors of jurisdiction-where a court comes to a
finding of fact by asking itself a wrong question or approaches the question
in an improper manner, the said finding of fact can not be said to be one

H 176
l.r-
.
KISHORE KUMAR KHA IT AN r. PRAVEEN KUMAR SINGH 177

•. ...,f
rendered with jurisdiction and is amenable to correction at the hands of the A
court ula 227-Failure to render the necessary findings to support its order
by the court is also a jurisdictional error liable to correction-High Court
failed to exercise its jurisdiction by not setting aside the interim mandatory
injunction which was not supported by necessary findings.

The respondent-plaintiff filed a suit for declaration of his status as B
a tenant of suit property and for perpetual injunction restraining the
appellant-defendant, the owners of the building, from interfering with his
peaceful possession. Plaintiff also moved an application for grant of interim
injunction pending the suit, restraining defendant from interfering with
his possession of the property. It was claimed by the plaintiff that suit
property was leased to him by defendant and transaction was evidenced
c
by writing on the letter head of a company owned by defendant. Lease
was denied by defendant. Trial court found that there was no urgency
which justified the grant of an ad-interim ex parte order of injunction. On
appeal, Additional District Judge passed an ex parte ad-interim order
directing tt1e parties to maintain status quo as on 19.06.1998. Thereafter, D
plaintiff filed an application u/s 151 of the Code for an interim mandatory
.,\. injunction alleging that he was in possession on 19.06.1998 when order to
+ maintain status quo was passed and that he was dispossessed on the next
day in violation of that order. District Court passed as order of interim
mandatory injunction directing to restore possessio·n of suit property to
plaintiff. This was challenged by the defendants before the High Court in
E
a proceeding u/s 115 of the code. The High Court set aside the order and
remanded the matter for consideration by the District Court. The High
Court pointed out that the essential condition for passing an interim
mandatory injunction was that the party claiming it must be shown to be

...
in possession on the date of the order directing the "parties to maintain F
\
_...I
status quo and that he was dispossessed after such an order was passed.
Since, specific findings on both these aspects were lacking, the Addi.
District Judge acted without jurisdiction in passing the interim mandatory
order of injunction. The District Court reconsidered the app!ication for
interim mandatory injunction and allowed the same by upholding the
claim of the plaintiff. The challenge by the defendants to that order before G
the High Court under article 227 of the constitution was rejected. Hence
) the present appeal by the defendants challenging the said orders.

Allowing the appeal, the Court

HELD: 1. In an original suit of this nature, it was not appropriate H
l
178 SUPREME COURT REPORTS [2006] 2 S.C.R.

A for the Additional District Judge to pass an order directing the parties to
maintain status quo, without indicating what the status quo was. If he was
satisfied that the appellant before him had made out at a primafacie case
for an ad interim ex perte injunction and the balance of convenience
justified the grant to such an injunction, it was for him to have passed
B such an order of injunctioA. But simply directing the parties to maintain
status quo without indicating what the status quo was, is not an order that
should be passed at the initial stage of litigation, especially when one court
had found no reason to grant an ex parte order of injunction and the
appellate court was dealing with only the limited question whether an ad
interim order of injunction should or should not have ben granted by the
C trial court, since the appeal was only against the refusal of an ad interim
ex parte order of injunction and the main application for injunction
pending suit, was still pending before the trial court itself. (183-E, F, GI

2.1. 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
D and the prima facie materials 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. (184-B-C) +

2.2. Before ordering an interim mandatory injunction or refusing
E it, the court has first to consider whether the plaintiff has proved that he
was in possession on the date of suit and on the date of order and he had
been dispossessed the next day. Unless a clear primafacie finding that the
plaintiff was in possession on those dates is entered, an order for interim
mandatory injunction could not have been passed and any such order
F passed would be one without jurisdiction. (183-H-; 184-AJ

2.3. Admittedly, the defendants are the owners of the building. The
plaintiff was setting up a case that the plaint schedule part of the building
had been granted to him on lease on 17.04.1998 and that he had obtained
possession thereof on the basis of such a lease transaction. The lease, thus
G set up by the plaintiff has been denied by the defendants who had pleaded
that the plaintiff had been entrusted with some renovation work for which
he was being paid and the alleged document relied gn by him was a
concocted one. The grant of mandatory injunction would necessarily
depend upon the plaintiff establishing before the court that on 19.06.1998
H when the court directed the parties to maintain status quo, he was in
y
KISHORE KUMAR KllAITAN 1·. PRAVEEN KUMAR SINGH 179

• -,-7 possession as a tenant of the plaint schedule property. The burden in that A
behalf is clearly on the plaintiff, the claim he made, having been denied
by the defendants. Therefore, the first question that the District Court had
to consider pursuant to the order of remand by the High Court was
whether the plaintiff had prima facie established that the building was let
out to him as claimed. What the plaintiff has relied upon is seen to be a
letter on the letter-head of Khaitan Paper Machine Limited signed by the
B
first defendant describing himself as Managing Director and Partner of
)<,
Khaitan Estates. Prima facie it is seen that whereas the letter-head is that
of Khaitan Paper Machine Limited, obviously a limited company, the
signature is that of the Managing Director and partner of Khaitan Estates,
an entity different from Khaitan Paper Machine Limited. It is difficult to c
imagine that the letter-head of one company was used for dealing with
'I the properties of another entity which appears to be a partnership as per
the description contained in the letter. Prima facie, the document does not
satisfy the requirements of Section 107 of the Transfer of Property Act
and thought it acknowledges receipt of a sum of Rs. 2 lakhs there is no
stamp affixed to indicate that it was intended to be a receipt for the said D
_._ sum. The genuineness of this document which is seriously disputed by the
defendants, its admissibility in evidence and validity, have to be decided
-+ in the suit. Therefore, one of the questions that has to be decided is whether
ibis letter is genuine and if it is genuine, whether it is capable of bringing
into existence a lease or accepted as evidencing a lease transaction between E
the parties. Since this is the document on. which the suit is based, the
finding on the genuineness and validity of this document and the alleged
transaction created by it will have a great bearing on the claim of
possession by the plaintiff. [184-D, E, F, H; 185-A, C-E]

2.4. The approach of the Additional District Judge and the manner F
I in which he dealt with the question in spite of the directions in the .order
-1
of remand by the High Court leave a lot to be desired. Instead of discussing
the evidence properly to find whether the plaintiff had prima facie proved
his possession on 19.06.1998 as a tenant as claimed by him and whether
he had adduced any evidence to show primafacie that he had been forcibly
dispossessed on 20.06;1998, the day after the grant of ad interim ex parte
G
order to maintain status quo, the Add.itional District Judge has passed the
)
,.., interim order of mandatory injunction. Thus, we find that the order of.
interim mandatory injunction, an extraordinary relief in itself, is not
supported by the necessary findings justifying its grant. We also find that
the approach made by the Additional District Judge in not the approach H
-s
'

180 Sl:PREME COURT REPORTS !20061 2 S.C.R.

A that is called for, in entertaining a claim of this nature put forward by a .. ,..
plaintiff and hence the order is also vitiated by an erroneous approach to
the question falling for decision. (186-F-G; 187-B(

3.1. The jurisdiction under Article 227 of the Constitution may be
restrictive in the sense that it is to be invoked only to correct errors of
B jurisdiction. But when a court asks itself a wrong question or approaches
the question in an improper manner, even if it comes to a finding of fact,
the said finding of fact cannot be said to be one rendered with jurisdiction
and it will still be amenable to correction at the hands of the High Court
under Article 227 of the Constitution. The failure to render the necessary
c findings to support its order would also be a jurisdictional error liable to
correction. Here the jurisdiction to grant an interim mandatory injunction
could be exercised on entering a finding that on the day the order for
maintaining the status quo was passed, the plaintiff was in possession and
a day after the interim order was passed, he was in fact dispossessed.
(187-G, H; 188-A-B)
D
3.2. The High Court, we must say, has also not properly exercised
its jurisdiction under Article 227 of the Constitution of India. In fact, it
has failed to exercise its jurisdiction. In exercise of its jurisdiction under
Article 227 of the Constitution of India, it behoved the High Court to
..
consider whether the order of interim mandatory injunction was supported
E by the necessary findings. That is certainly a question of jurisdiction, since
the jurisdiction to pass an interim mandatory order can only be based on
such clear findings and the grant of an interim order without such findings
would be acting without jurisdiction. (187-C-E]

4. Thus, prima facie, we find that the tenancy claimed by the plaintiff
F remains to be proved in the suit. For the present, we should say that prima
facie, the plaintiff has not been able to establish' the foundation for the
possession claimed by him. The prima facie infirmities attached to the letter
said to create the tenancy cannot also be ignored, since that transaction
is the foundation of the plaintifrs claim of possession. The disturbance of
G the status quo by the defendants has not been established. Thus, prima facie
it is clear that the plaintiff has not laid the foundation f.ir the grant of an
interim order of mandatory injunction in his favour. The order so passed
by the Additional District Judge, and confirmed by the High Court,
•-
therefore, calls for interference in this appeal. (188-D-F]

H CIVIL APPELLATE JURISDICTION: Civil Appeal No. I IOI of2006.
y
)

KISllORE KUMAR KHAIT AN r. PRA VEEN KUMAR SINGH (BALASUBRAMANY AN. J. J J 8 J

.. •_,, ...>' From the Judgment and Order dated 25.11.2004 of the Calcutta High A
Court in Co No. 1087/04.

L. Nageswara Rao, Ankit Singa, Sanjeev Pandey and Nikhil Nayyar for
the Appellants.

Shravan Kumar, Kumar Jyoti Tiwari and S. Chandra Shekhar for the B
Respondent.
¥,
The Judgment of the Court was delivered by

P.K. BALASUBRAMANY AN, J. Leave granted.

I. The respondent herein, hereinafter referred to as the plaintiff, filed
c
a suit TS No.119 of 1998 before the Civil Judge, Junior Division, Howrah for
a declaration of his status as a tenant of the suit property and for a perpetual
injunction restraining the appellants herein, hereinafter referred to as the
defendants, the owners of the building, from interfering with the peaceful
possession of the plaintiff and for other incidental reliefs. Along with the suit, D
.> the plaintiff moved an application under Order XXXIX Rules 1 and 2 of the
Code of Civil Procedure (hereinafter referred to as the 'Code'), for an interim
-t injunction pending the suit, restraining the defendants from interfering with
his possession of the plaint schedule property. When the application for interim
injunction was moved on 12.6.1998, the trial court found that there was no
E
urgency which justified the grant of an ad-interim ex parte order of injunction
and taking the view that the delay will not defeat justice, refused to pass an
ad-interim order of injunction and issued notice to the defendants to show
cause within 15 days of the receipt of the notice, as to why the temporary
injunction, as prayed for by the plaintiff, shall not be granted. Feeling himself
l
aggrieved by the non-grant of an ad interim ex parte injunction, the plaintiff F
~I
filed an appeal under Order 43 Rule i of The Code of Civil Procedure before
the District Court. The Additional District Judge on 19.6.1998, while
entertaining the civil miscellaneous appeal admitted the same and issued
notice to the defendants fixing 4.9.1998 for their appearance. After allowing
an application for amendment of the application for injunction by way of
incorporating a schedule thereto, the Additional District Judge along with the
G
issuance of notice to the defendants to show cause why the prayer for
) temporary injunction shall not be granted, stating that in the light of the
materials available it was just and proper to direct the parties to maintain the
status quo as on date an,d delay in the grant of an ad-interim order may cause
H
182 SUPRE\ff COl'RT REPORTS [20061 2 S.C.R.

A complications, passed an ex parte ad interim order directing both the parties
to maintain status quo as on that day till 17. 7.1998. Thereafter alleging that
he was in possession on 19.6.1998 when the order to maintain status quo was
passed by the Additional District Judge and that he was dispossessed on
20.6.1998 in violation of that order, the plaintiff filed an application under
B Section 151 of the Code for an interim mandatory injunction directing the
defendants to put him in possession of the suit premises. The District Court
originally passed an order of interim mandatory injunction directing the
defendants to restore possession of the suit property to the plaintiff. This was
challenged by the defendants before the High Court in a proceeding under
Section 115 of the Code. The High Court set aside the order of the trial court
C and remanded the application for interim mandatory injunction for
reconsideration by the District court. Thereafter, the District court reconsidered
the application for interim mandatory injunction and allowed the same by
upholding the claim of the plaintiff that he was dispossessed after the interim
order of status quo was passed by that Court. A challenge by the defendants
to that order before the High Court under Article 227 of the Constitution was
D rejected by the High Court. This appeal by special leave is filed by the
defendants challenging those orders.

2. We may note two incidental facts at this stage. The first is the filing
of a suit TS No.153 of 1998 by the present defendants for a declaration that
E the document relied on as a rent deed by the present plaintiff, be adjudged
void and cancelled and for consequential reliefs flowing from the grant of the
main relief. The second is that even though the petition for special leave to
appeal against the order of the High Court dated 25.11.2004 was filed in this
Court on 31.3.2005, in enforcement of the order of the District Court under
challenge in this appeal, possession was delivered over to the plaintiff on
F 8.4.2005 through the process of court.
3. It is the case of the plaintiff that the suit property was leased to him
by the first defendant on 17.4. 1998 and that the transaction was evidenced by
writing in the letter-head of Khaitan Paper Machine Limited owned by the
first defendant. According to the plaintiff, there was an earlier litigation
G between the first defendant and one Shivanand Mishra, Shivanand Mishra
claiming a tenancy over a portion of the present suit premises and at the
instance of the present plaintiff, that suit was compromised, as part of the ~
compromise a sum of Rs.2 lakhs was paid to Shivanand Mishra and Shivanand
Mishra gave up his claim of tenancy. According to the plaintiff, the said sum
H of Rs.2 lakhs which was paid to Shivanand Mishra was advanced by him to
KISHORE KUMAR KHAITAN 1·. PRAVEEN KUMAR SINGH [BALASUBRAMANYAN. J.] J83

the first defendant and it was in consideration of the same and the help A
rendered by the plaintiff in the matter of settling the dispute with Shivanand
Mishra, that the first defendant agreed to handover possession of the suit
premises to the plaintiff immediately after recovering possession from
Shivanand Mishra and it was in furtherance of the promise that the tenancy
agreement was executed on 17.4.1998. Thus, the plaintiff claimed that he had B
been put in possession of the suit property as a tenant. In derogation of the
tenancy thus created in his favour, the defendants were attempting to dispossess
the; plaintiff forcibly and it was in that situation that the plaintiff was filing
the suit for a declaration of his tenancy rights over the suit property and for
a perpetual injunction restraining the defendants from interfering with his
possession as a tenant. As already noticed, though the plaintiff filed an C
application under Order XXXIX Rules 1 and 2 of the Code for an interim
injunction restraining the defendants from interfering with his possession, the
trial court did not pass an ad interim order of injunction, but only issued
notices to the defendants calling upon them to show cause why the prayer for
injunction shall not be granted. It is against this refusal of ad interim injunction
ex parte, that the plaintiff filed the appeal before the District Court in which, D
on 19.6.1998, the Additional District Judge passed an ad interim ex parte
J
order directing both the parties to maintain status quo.
-+-
4. It is necessary to notice at this stage that in an original suit of this
nature, it was not appropriate for the Additional District Judge to pass an E
order directing the parties to maintain status quo, without indicating what the
status quo was. If he was satisfied that the appellant before him had made out
a prima facie case for an ad interim ex parte injunction and the balance of
convenience justified the grant of such an injunction, it was for him to have
passed such an order of injunction. But simply directing the parties to maintain
status quo without indicating what the status quo was, is not an order that F
1
_--4-_ should be passed at the initial stage of a litigation, especially when one court
had found no reason to grant an ex parte order of injunction and the appellate
court was dealing with only the limited question whether an ad interim order
of injunction should or should not have been granted by the trial court, since
the appeal was only against the refusal of an ad interim ex parte order of G
injunction and the main application for injunction pending suit, was still
pending before the trial court itself. Therefore, we are primafacie of the view
that the Additional District Judge ought not to have passed an equivocal
r; order like the one passed in the circumstances of the case. But of course, that
aspect has relevance only to the extent that before ordering an interim
mandatory injunction or refusing it, the court has first to consider whether the H
184 SUPREME l'Ol!RT REPORTS [20061 2 S.C.R.

A plaintiff has proved that he was in possession on the date of suit and on the
date of the order and he had been dispossessed the next day. Unless a clear
prima facie finding that the plaintiff was in possession on those dates is
entered, an order for interim mandatory injunction could not have been passed
and any such order passed would be one without jurisdiction.

B 5. An interim mandatory injunction is not a rer:ledy that is easily granted.
lt is an order that is passed only in circumstances which are clear and the
prima facie materials 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
C injunction. Keeping this principle in mind, it is necessary to see whether in
the case on hand, the Additional District Judge was justified in passing the
interim order of injunction.

6. Admittedly, the defendants are the owners of the building. The plaintiff
was setting up a case that the plaint schedule part of the building had been
D granted to him on lease on 17.4.1998 and that he had obtained possession
thereof on the basis of such a lease transaction. The lease, thus set up by the
plaintiff has been denied by the defendants who had pleaded that the plaintiff ..
had been entrusted with some renovation work for which he was being paid
and the alleged document relied on by him was a concocted one. The grant
of mandatory injunction would necessarily depend upon the plaintiff
E establishing before the court that on 19.6.98 when the court directed the
parties to maintain status quo, he was in possession as a tenant of the plaint
schedule property. The burden in that behalf is clearly on the plaintiff, the
claim he made, having been denied by the defendants. Therefore, the first
question that the District Court had to consider pursuant to the order of
p remand by the High Court was whether the plaintiff had primafacie established
that the building was let out to him as claimed. The building is seen to be
of a substantial dimension, within the District of Howrah, part of a city,
commercially important. Prima facie it is difficult to imagine that such a
building or the second floor and part of the ground floor of a building of this
nature would have been let out in such an infonnal manner and the transaction
G not being evidenced even by a rent deed executed by the lessor and the lessee
in terms of Section 107 of the Transfer of Property Act. What the plaintiff
has relied upon is seen to be a letter on the letter-head of Khaitan Paper
Machine Limited signed by the first defendant describing himself as Managing ••
Director and Partner of Khaintan Estates. Prima facie it is seen that whereas
H the letter-head is that of Khaitan Paper Machine Limited, obviously a limited
T KISHORE KUMAR KHA IT AN r. l'RAVEEN KUMAR SINGH [BALASUBRAMANYAN. J.J J 85

company, the signature is that of the Managing Director and partner ofKhaitan A
Estates, an entity different from Khaitan Paper Machine Limited. It is difficult
to imagine that the letter-head of one company was used for dealing with the
properties of another entity which appears to be a partnership as per the
description contained in the letter. Secondly, the letter purports to be an
acknowledgement for having received a sum of Rs.2 lakhs as security from
the plaintiff and creating a tenancy in favour of the plaintiff, and inducting B
the plaintiff into possession in respect of the entire second floor and shop
rooms in the ground floor as a tenant on a monthly rent of Rs.7,000/- and
conferring upon the plaintiff a right to do certain other acts in the premises.
It is also stated that a stamped agreement would be created by the signatory
as well as his wife, in favour of the plaintiff. Prima facie, the document does C
not satisfy the requirements of Section 107 of the Transfer of Property Act
and though it acknowledges receipt of a sum of Rs.2 lakhs, there is no stamp
affixed to indicate that it was intended to be a receipt for the said sum. As ·
noticed, the rent stipulated is also Rs.7,000 per month. Suffice it to notice,
that the genuineness of this document which is seriously disputed by the
defendants, its admissibility in evidence and validity, have to be decided in D
the suit. Therefore, one of the questions that has to be decided is whether this
letter is genuine and if it is genuine, whether it is capable o! bringing into,~
existence a lease or accepted as evidencing a lease transaction between the
parties. Since this is the document on which the suit is based, the finding on
the genuineness and validity of this document and the alleged transaction E
created by it will have a great bearing on the claim of possession by the
plaintiff. No doubt the signature of defendant No. I found in the document is
admitted but with an explanation that it is a got up document. A suit has also
been filed by the defendants challenging it.

7. At this stage it is not necessary to go further into this aspect because F
what we are concerned with is whether pursuant to the order of remand
earlier made by the High Court directing the District Court to take evidence
and to decide the question falling for decision, the District Court has considered
the relevant aspects and whether its order granting an interim mandatory
order of injunction is capable of being sustained or is free from jurisdictional G
error.

J 8. While setting aside the original order passed by the Additional District
' Judge, and remanding the application for an interim mandatory injunction,
the High Court specifically pointed out that the essential condition for passing
an interim mandatory injunction was that the party claiming it must be shown H
,
'
186 SUPREME COlJRT REPORTS [2006] 2 S.C.R.

A to be in possession on the date of the order directing the parties to maintain
status quo and it must be further to shown that he was dispossessed after such
an order was passed and that specific findings on both these aspects were
necessary to sustain an order. The court had found that such findings were
lacking and hence the Additional District Judge acted without jurisdiction in
passing the interim mandatory order of injunction. The order passed was set
B aside and the application filed by the plaintiff was remanded. Certain directions
regarding production of documents and their receivability were also issued.
The District Court was directed to decide the claim of the plaintiff afresh, in
accordance with law and in the light of the directions issued in that order.

C 9. It is seen that after the remand, the parties produced some evidence.
The Additional District Court set out the arguments on the side of both the
parties. Then it referred to certain decisions cited by the parties. It observed
that there was at least some prima facie foundation in the claim of the plaintiff
that the tenancy agreement was executed by defendant No. I and whether it
was concocted out of a signed blank letter head and whether it had legal
D force could only be decided in the suit. It did not discuss the oral evidence
that was taken pursuant to the order of remand and merely stated that it has
perused the evidence. After referring to some cash memos and money receipts
produced, by the plaintiff, it held that they prima facie showed that the plaintiff
was in possession. Then it abruptly observed that at least prima facie it is
E proved that the plaintiff was in possession of the suit property on 19.6.1998,
the date of the passing of the order of status quo. It stated that as such his
possession must be restored and it was a fit case where the court should
invoke its inherent jurisdiction to order restoration of possession.

10. We must say that the approach of the Additional District Judge and
F the manner in which he dealt with the question in spite of the directions in
the order of remand by the High Court leave a lot to be desired. Instead of
discussing the evidence properly to find whether the plaintiff had prima facie
proved his possession on 19.6.1998 as a tenant as claimed by him and whether
he had adduced any evidence to show prima facie that he had been forcibly
dispossessed on 20.6.1998, the day after the grant of ad interim ex parte
G order to maintain status quo, the Additional District Judge has passed the
interim order of mandatory injunction. We are of the view that there is no
proper or adequate finding by the Additional District Judge either of prima ...•
facie possession of the plaintiff on 19.6.1998 or of his forcible dispossession
on 20.6.1998, Apparently, not even a neighbour or occupant of any part of
H the building was examined in support of the case of forcible dispossession on
'y

.,.. KISHORE KUMAR KHAITAN "· PRAVEEN KUMAR SINGH [BALASUBRAMANYAN. J.J J 87

·'
. ··y' the morning of 20.6.1998. ln fact there does not appear to be any such
finding of dispossession in spite of the direction in that behalf in the order
A
of remand. Thus, we find that the order of interim mandatory injunction, an
extraordinary relief in itself, is not supported by the necessary findings
justifying its grant. We also find that the approach made by the Additional
District Judge is not the approach that is called for, in entertaining a claim
of this nature put forward by a plaintiff and hence the order is also vitiated B
by an erroneous approach to the question falling for decision.

-.\. 11. The High Court, we must say, has also not properly exercised its
jurisdiction under Article 227 of the Constitution of India. In fact, it has
failed to exercise its jurisdiction. Though the High Court rightly noticed that
the burden was on the plaintiff to show that he was in possession on the date
c
of the order directing the parties to maintain status quo and that he was
dispossessed in violation of the subsisting interim order, it did not scrutinize
the order to find out whether the requisite findings had been entered by the
Additional District Judge on both those aspects. It did not even consider
whether there was a clear finding that the plaintiff was forcibly dispossessed D
on 20.6.1998 as alleged by him. It did not also consider whether the finding
,..) on possession was rendered based on a discussion of the available evidence
and whether the directions in the order of remand had been complied with.
·+
In short, in exercise of its jurisdiction under Article 227 of the Constitution
of India, it behoved the High Court to consider whether the order of interim
E
mandatory injunction was supported by the necessary findings. That is certainly
a question of jurisdiction, since the jurisdiction to pass an interim mandatory
order can only be based on such clear findings and the grant of an interim
. order without such findings would be acting without jurisdiction. We may
incidentally notice that there is no prima facie material to indicate that on
20.6.1998 the plaintiff was, in fact, dispossessed by the defendants. We may F
in this context notice that the plaintiff could not show that he had either
_L become a member of the tenants association of the building or had entered
into an arrangement with it for the consumption of electricity in terms of the
alleged rental arrangement. We have already noticed that none of the occupants
of the building was examined to prima facie show dispossession.
G
12. The jurisdiction under Article 227 of the Constitution may be
restrictive in the sense that it is to be invoked only to correct errors of
j jurisdiction. But when a court asks itself a wrong question or approaches the
question in an improper manner, even if it comes to a finding of fact, the said
finding of fact cannot be said to be one rendered with jurisdiction and it will H
188 SUPREME cm:R r REPORTS [20061 2 S.C.R.

A still be amenable to correction at the hands of the High Court under Article
227 of the Constitution. The failure to render the necessary findings to support
its order would also be a jurisdictional error liable to correction. Here the
jurisdiction to grant an interim mandatory injunction could be exercised on
entering a finding that on the day the order for maintaining the status quo
B was passed, the plaintiff was in possession and a day after the interim order
was passed, he was in fact dispossessed. The interim direction to maintain
status quo was an ex parte order. From the order of the Additional District
court it is not possible to come to the conclusion that on a proper advertence
to the relevant materials, prima facie clear findings had been rendered by that
court on these aspects. The prima facie infirmities attached to the letter said
C to create the tenancy cannot also be ignored, since that transaction is the
foundation of the plaintiffs claim of possession.

13. Thus, primafacie, we find that the tenancy claimed by the plaintiff
remains to be proved in the suit. For the present, we should say that prima
facie, the plaintiff has not b,;en able to establish the foundation for the
D possession claimed by him. It is significant to note that not even another
tenant of the building among the various tenants in the building, was examined
to establish that the plaintiff while in possession, had been dispossessed on
20.6.1998 as claimed by him. Any way, the Additional District Judge has not
referred to any such evidence except referring to the affidavit of Shivanand
E Mishra, who even according to the plaintiff was no more in occupation.
Thus, the disturbance of the status quo by the defendants has not been
established. Thus, prima facie it is clear that the plaintiff has not laid the
foundation for the grant of an interim order of mandatory injunction in his
favour. The order so passed by the Additional District Judge, and confirmed
by the High Court, therefore, calls for interference in this appeal.
F
14. Before parting, it is necessary to notice the argument that after the
order of the High Court and after the filing of this petition for special leave
to appeal to this Court, the plaintiff was put in possession pursuant to the
order under challenge through the process of court. Now that we have set
aside the order of the High Court and that of the Additional District court and
G rejected the prayer of the plaintiff for mandatory injunction, the defendants
would be entitled to re-delivery of possession by way of restitution. The
possession will be restored to them through court. But considering the questions
to be decided in the suit, we direct the defendants, once they are put in
possession of the premises in restitution, not to create any third party interest
H in respect of the plaint schedule building (being a part of the whole building)
y

KISHORE KUMAR KHAITAN r. rRAVEEN KUMAR SINGH !BALASUBRAMANYAN. J.) 189

pending disposal of the suit. Considering the nature of the suit and the question A
involved, we would request the trial court, in which the suit has been filed,
to try and dispose of the suit expeditiously. We clarify that it would not be
necessary to consider the inte,.im application for prohibitory injunction
separately and the same would also be disposed of along with the suit by the
trial court. The suit will be disposed of after trial untrammeled by any of the B
observations contained in these interim orders.

15. The appeal is, thus allowed, the orders of the High Court and that
of the Additional District Court are set aside with the directions as above and
the trial court is requested to dispose of the suit itself expeditiously and in
accordance with law. The appellants would be entitled to their costs throughout. C

K.G. Appeal allowed.

_l_

j