DATE OF JUDGEMENT:
- Petitioner: Hammad Ahmed
- Respondent: Abdul Majeed &ors.
- Hon’ble Justice Hemant Gupta
Section 39 of the Specific Relief Act, 1963 categorically deals with the grant of mandatory injunction. Since such mandatory injunctions are granted only under exceptional circumstances, court in this judgement held that unless clear and prima facie material justifies a finding that status quo has been altered by one of the parties, the order in mandatory injunction can be given.
- Section 39 – Mandatory injunctions- The object of a mandatory injunction is to restore plaintiff to the original condition and not create a new state of things. It is a most exceptional remedy applied with the greatest safeguard.Two elements have to be taken into consideration.
- Court has to determine what acts are necessary in order to prevent a breach of the obligation.
- The requisite acts must be such as the Court is capable of enforcing.
- Hakim Hafiz Abdul Majid started the business of Hamdard as a sole proprietor in the year 1906. He died on 22.06.1922 leaving behind his wife, and two sons. These three executed a deed on 28.08.1948 that in case of death of any trustees, he would be replaced by his eldest son.
- Eventually, Haji Hakim Abdul Hamid (eldest son of the founder) became the sole surviving Wakif Mutawalli. He appointed his two sons Abdul Mueed, and Hammad Ahmed as Mutawallis in 1964.
- In 1955, the Wakif Mutawalli appointed his grandsons Abdul Majeed (eldest son of Abdul Mueed) and Hamed Ahmed (eldest son of Hammad Ahmed) as fourth and fifth Mutawalli.
- On 04.07.1995, the Wakif Mutawalli constituted the Board of Mutawallis. Abdul Mueed was declared as Vice Chairman and his son Abdul Majeed as Secretary of the Board of Mutawallis and Hammad Ahmed as Senior Mutawalli.
- After the death of Wakif Mutawalli, AsadMueed (the younger son of Abdul Mueed ) was appointed as the fifth Mutawalli by Abdul Mueed (the chief Mutawalli). The dispute started in 2015, after the death of Abdul Mueed, the first and last undisputed Chief Mutawalli, when Sajid Ahmed son of Hammad Ahmed was appointed as fifth Mutawalli and Hammad Ahmed claiming himself to be the Chief Mutawalli.
- Various family members filed several suits in Delhi High Court claiming to be Chief Mutawalli. In October 2017, the single bench of Delhi High Court ruled in favor of Hammed Ahmed who asserted his claim for being the eldest male descendent.
- The appeal was then filed before a Division Bench who set aside single judge's orders. Then Hammad Ahmed approached the Supreme Court for interim relief to temporarily run the affairs of Hamdard.
- Appellant contented that there is no bar on the court to grant on injunction because even if it is illegal at the interim stage but the Appellant is entitled to control of Chief Mutawalli as he is the senior-most male descendent in the line of Wakif Mutawalli.
- On the other hand, the respondent argued that in an application under Order XXXIX Rules 1and 2 of the Code, the court will not grant interim mandatory relief resulting in the creation of an entirely new state of affairs that hitherto never existed. Further it was argued that the Division Bench has remitted the matter back to a single bench to frame a neutral administrative oversee mechanism for the management of Hamdard to balance the interest of the parties. Therefore, the order passed by the Division Bench does not require any interference.
- The Supreme Court decided to set aside Division Bench orders, giving Hammad Ahmed green light to temporarily run the affairs of Hamdard until the main suit is decided by the Delhi High Court. The court held that the ad interim mandatory injunction is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding a mandatory injunction.
- The court that the court will grant an interim relief only if it is satisfied that withholding it will prick the conscience of the court and do injustice to the parties.
- The court also held that situations may emerge where on one hand granting an interim relief will amount to granting the final relief itself and on the other hand dismissal of relief will amount to dismissal of the main petition because by the time the main matter comes up for hearing there would be nothing left to be allowed as a relief to petitioner though all the findings may be in his favour.
To decide in a prima facia case with a much higher standard, the consideration of the balance of convenience and irreparable injury may persuade the court to grant interim relief. Of course, suchshould be a rare and exceptional case.