Mandatory&Prohibitory injunctions

In one minute

A prohibitory injunction tells a person to stop doing something. A mandatory injunction tells him to do something, usually to undo what he has done. The first is the ordinary kind. The second is stronger and the court grants it with more care.

Section 38 of the Specific Relief Act, 1963 covers the ordinary perpetual injunction. Section 39 covers the mandatory one. In exams, "Mandatory Injunction" is a short-note question. You must give section 39, the difference from the prohibitory kind, and the test for interim relief.

Exam focus

Frequency: Occasionally asked
Usually asked as: Both (long answer and short answer)

Legal provision

Section 38: a perpetual injunction may be granted to prevent the breach of an obligation existing in the plaintiff's favour, and where the defendant invades or threatens to invade the plaintiff's right to property in the four cases listed. The Act does not use the word "prohibitory".
Section 39: it may be necessary, to prevent the breach of an obligation, to compel the performance of certain acts which the court is capable of enforcing. The court may then in its discretion grant an injunction to prevent the breach complained of. It may also compel performance of the requisite acts.
Section 40: damages may be claimed in addition to, or in place of, an injunction under section 38 or 39.

Meaning and definition

A prohibitory injunction forbids an act. A mandatory injunction compels an act. Section 39 says the court may both "prevent the breach complained of" and "compel performance of the requisite acts". So a mandatory injunction has two parts: a restraint and a positive order.

The decision tree shows how a court approaches a request for a mandatory injunction.

Will the court order a positive act?How to read this: go down the boxes in order. A "No" answer sends you to the result beside the box.

1. Is a positive act, such as removing a wall, necessary to prevent the breach? section 39
No: a prohibitory injunction under section 38 is enough.
2. Is the act one that the court is capable of enforcing? section 39
No: the court cannot grant a mandatory injunction.
3. Is the plaintiff asking for it only until the end of the suit (interim relief)? Order XXXIX
No: the court decides at the hearing and may order it by decree.
4. Does the plaintiff show a strong case, serious or irreparable injury, and a balance of convenience in his favour? Dorab Cawasji Warden
No: the interim mandatory injunction is refused.
All answers "Yes": the court may grant an interim mandatory injunction to restore the last peaceful position or to undo an act illegally done.

Detailed explanation

1. Prohibitory injunction (section 38)

This is the ordinary order. It says "do not". It can be temporary or perpetual. Section 38(1) prevents breach of an obligation. Section 38(3) covers invasion of property rights in four cases: a trustee; no standard for measuring damage; money not adequate; and avoiding many suits.

Example. A builder in Hyderabad starts building beyond the sanctioned limit. The neighbour asks the court to stop him. The court forbids further building.

2. Mandatory injunction (section 39)

This order says "do". The court commands an act: demolish what was built, restore support, hand back a key. Two conditions appear in the section. The act must be necessary to prevent the breach, and the court must be capable of enforcing it.

Example. The same builder has finished a wall across a shared passage. The court orders him to remove the wall and not to obstruct the passage again.

3. Why the court is more careful with mandatory orders

A mandatory order can force heavy cost or loss on the defendant. It may also give the plaintiff the final relief too early. In Redland Bricks Ltd. v. Morris (1970), the House of Lords said a mandatory injunction is never granted "as of course". The plaintiff must show a very strong probability that grave damage will follow, and the order must state clearly what the defendant has to do.

4. Interim mandatory injunction

The Supreme Court laid down three principles in Dorab Cawasji Warden v. Coomi Sorab Warden (1990).

The plaintiff has a strong case for trial, of a higher standard than the prima facie case needed for a prohibitory injunction.
It is necessary to prevent irreparable or serious injury that normally cannot be compensated in money.
The balance of convenience is in favour of the plaintiff.

Such orders are generally granted to preserve or restore the last uncontested position that came before the dispute, or to undo an act that was illegally done. Whether to grant them rests in the court's sound discretion on the facts.

5. Damages in place of the injunction (section 40)

The plaintiff may claim damages in addition to a mandatory or prohibitory injunction, or instead of it. The claim must be in the plaint, but the court must allow an amendment at any stage. A dismissed suit bars a later suit for damages for that breach.

6. Bars (section 41)

Both kinds are subject to section 41. For example, no injunction lies where equally efficacious relief can certainly be had in another usual way, or where the plaintiff has acquiesced in a continuing breach, or where it would impede an infrastructure project.

Prohibitory and mandatory compared

Point	Prohibitory injunction	Mandatory injunction
Section	38 (and 37 for temporary orders)	39
What it orders	Stop doing something	Do or undo something, and stop the breach
Care by the court	Ordinary discretion	Higher threshold; the court must be able to enforce the act
Interim test	Prima facie case, balance of convenience, irreparable injury	Strong case, serious or irreparable injury, balance of convenience (Dorab Cawasji Warden)
Example	Do not build beyond the limit	Demolish the part built beyond the limit

Don't confuse: mandatory injunction and specific performance

Both order a positive act, so students mix them. The source of the duty differs.

Point	Mandatory injunction (section 39)	Specific performance (section 10)
Basis	Any obligation whose breach is to be prevented	A contract
Aim	Prevent the breach and compel the acts needed	Carry out the contract
Typical use	Remove a wrongful structure	Execute a sale deed

Inside the concept (mandatory injunction). A landowner in Kakinada puts up a gate that blocks a neighbour's right of way. The court orders him to take the gate down.

Just outside it (specific performance). A seller refuses to sign the sale deed he agreed to sign. The court orders him to execute it. The order comes from the contract of sale.

Common mistakes

Writing that the Act uses the word "prohibitory". It does not.
Giving the prima facie test for an interim mandatory injunction. The standard is higher.
Forgetting that the court must be capable of enforcing the act (section 39).
Confusing a mandatory injunction with specific performance.
Forgetting that a mandatory injunction also restrains the breach.

Apply it

Problem

Lavanya's flat in Guntur has a common staircase. Her neighbour Bhaskar builds a locked iron grill across it, cutting off her access. She files a suit and asks at once for an order that he remove the grill. Bhaskar says that a mandatory order cannot be given before trial. What should the court do?

Issue. Can an interim mandatory injunction be granted?

Rule. The court may compel acts it can enforce (section 39). At the interim stage the plaintiff must show a strong case, serious or irreparable injury and balance of convenience (Dorab Cawasji Warden).

Application. The grill was fixed recently, so the last peaceful position was open access. Without access, Lavanya suffers a serious loss that money does not cure. Removing a grill is an act the court can enforce, and Bhaskar's loss is small.

Conclusion. The court may grant an interim mandatory injunction to remove the grill. It can later grant a perpetual one by decree.

Leading case laws

Dorab Cawasji Warden v. Coomi Sorab Warden (1990)
Facts. A dispute over an undivided family dwelling house arose after shares were transferred to outsiders. The trial court granted an interlocutory mandatory injunction and the Supreme Court upheld it. (1990) 2 SCC 117.

Principle. An interlocutory mandatory injunction needs a strong case, necessity to prevent serious or irreparable injury, and balance of convenience. It is granted to restore the last uncontested position or to undo an illegal act.

Why it matters. It is the Indian standard for interim mandatory relief.
Redland Bricks Ltd. v. Morris (1970)
Facts. A brick company's excavation caused land to slip onto a neighbour's land. The neighbour won a mandatory injunction to restore support. [1970] AC 652.

Principle. A mandatory injunction is discretionary and never as of course. The plaintiff must show a very strong probability of grave damage. The order must say exactly what work is required, and the House of Lords discharged the vague order.

Why it matters. It shows the caution courts use with mandatory orders.
Anathula Sudhakar v. P. Buchi Reddy (2008)
Facts. Two sites in Matwada, Warangal, were sold twice from the same family. The first buyers sued only for a perpetual injunction.

Principle. A bare injunction suit lies only where the plaintiff is in lawful possession and there is no real cloud on title.

Why it matters. It shows when a prohibitory injunction is the right remedy for a title dispute.

How to write this answer in the exam

5-mark answer (for example, "Mandatory Injunction")

State section 39 and its two conditions: necessary to prevent the breach; acts the court can enforce.
Explain that it both restrains the breach and compels acts.
Contrast it with the ordinary prohibitory injunction.
Give the interim test from Dorab Cawasji Warden.
Add an example.

10-mark answer

The classification: temporary and perpetual; prohibitory and mandatory.
Prohibitory injunction: section 38.
Mandatory injunction: section 39 with an example.
Interim mandatory relief and Redland Bricks.
The comparison table.
Damages (section 40) and refusals (section 41).

Key points to remember

Prohibitory: "do not" (section 38). Mandatory: "do" or "undo" (section 39).
Section 39 needs a necessary act that the court is capable of enforcing.
Interim mandatory injunction: strong case, serious or irreparable injury, balance of convenience (Dorab Cawasji Warden).
It is granted to restore the last uncontested position or to undo an illegal act.
Damages may be claimed with or instead of the injunction (section 40).

Quick self-test

1. Which section deals with mandatory injunctions?

Section 39 of the Specific Relief Act, 1963.

2. What two conditions does section 39 set?

The performance of the acts must be necessary to prevent the breach, and the acts must be ones the court is capable of enforcing.

3. What is the standard for an interim mandatory injunction?

A strong case of a higher standard than prima facie, necessity to prevent serious or irreparable injury, and balance of convenience in the plaintiff's favour.