Specific Relief Act (SRA)
Mandatory Injunction: Section 39
Most injunctions say 'do not'. A mandatory injunction says 'do', or more often 'undo'. It is the positive order by which the court compels a party to perform an act, usually to reverse a wrong already committed and restore the earlier state of things. Section 39 permits it, but only where the court is able to enforce the act. This note explains the nature of the mandatory injunction, its two requirements, its typical uses, the higher threshold for granting it at the interim stage under the Dorab Cawasji Warden principles, and how it differs from a prohibitory injunction and from specific performance.
Figure: Section 39: the two requirements, typical uses, the higher threshold for an interim mandatory injunction, and the distinctions
1. The Provision
Section 39 ▪ The rule. When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is able to enforce, the court may in its discretion grant an injunction to compel the performance of those acts. ▪ The affirmative counterpart. It is the positive form of the injunction: instead of restraining the defendant, it commands him to act, usually to undo the effect of a wrong. |
2. The Two Requirements
What must be satisfied ▪ A breach to be prevented. There must be an obligation, and the mandatory act must be necessary to prevent its breach. The typical purpose is to restore the status quo ante, the position before the wrong. ▪ An act the court can enforce. The act to be compelled must be one the court is capable of enforcing. A vague or endless obligation the court cannot supervise will not be ordered by mandatory injunction. |
3. Typical Uses
- Removal of illegal construction or encroachment. Directing the pulling down of a structure or the removal of an encroachment raised in breach of the plaintiff's rights.
- Restoration. Restoring a demolished wall, a diverted watercourse, or a support removed, to the state before the wrong.
- Delivery or restoration of property. Directing the return of property wrongly taken or withheld.
4. The Interim Mandatory Injunction: A Higher Threshold
Dorab Cawasji Warden v Coomi Sorab Warden (1990) 2 SCC 117 A mandatory injunction at the interim stage, before trial, is granted only in exceptional cases, because it gives the plaintiff the substance of his final relief before his right is established. The Supreme Court laid down the guiding tests: the plaintiff must have a strong prima facie case, going beyond the ordinary standard for an interim order; withholding the injunction must be likely to cause greater hardship than granting it; and it must be necessary to prevent irreparable or serious injury. |
5. Mandatory Injunction Distinguished
Pair | The distinction |
|---|---|
vs perpetual (prohibitory) injunction | A prohibitory injunction restrains an act ('do not'); a mandatory injunction compels a positive act ('do' or 'undo') |
vs specific performance | Specific performance enforces a contract; a mandatory injunction enforces an obligation generally, often to undo a tort or trespass |
Interim vs final | An interim mandatory injunction meets a higher threshold than an ordinary interim order; a final one is granted by the decree |
6. Frequently Asked Questions
Q. What is a mandatory injunction?
A. Under Section 39, an order compelling the defendant to perform a positive act, usually to undo a wrong already done and restore the status quo ante, granted only where the court is able to enforce the act.
Q. What are the two requirements under Section 39?
A. That a mandatory act is necessary to prevent the breach of an obligation, and that the act is one the court is capable of enforcing.
Q. Is an interim mandatory injunction easy to obtain?
A. No. Under the Dorab Cawasji Warden principles it needs a strong prima facie case, a balance of hardship in the plaintiff's favour, and a real risk of irreparable injury, because it gives final relief before trial.
Q. How does a mandatory injunction differ from specific performance?
A. Specific performance enforces a contract; a mandatory injunction enforces an obligation generally, and is often used to undo a completed wrong such as an encroachment or trespass.
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