সতর্কীকরণ! কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে কেস রেফারেন্স ওয়েবসাইট কোন নিশ্চয়তা প্রদান করে না। কেস রেফারেন্স ওয়েবসাইটে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
Mandatory Injunction
The wall in question was built from days before the filing of the suit. It is right and proper that the order of its demolition, if at all, by way of mandatory injunction should ordinarily be passed on the conclusion of the suit. [Abdul Barik Vs. Serajul Islam 20 DLR 501]
Temporary Mandatory Injunction-Possession claimed even on the basis of imperfect document can be restored to the plaintiff dispossessed without notice-The plaintiff was in possession on the basis of some documents however imperfect that document might be and he could certainly have his possession protected under section 53A of the Act or under provision of the Specific Relief act and if dispossessed he could be put back to possession. [Bangladesh Mukri Judda Kallyan Trust Vs. Nurul Hossain 44 DLR 22]
Mandatory injunction-As the plaintiff is actually aggrieved by the granting of fresh lease of the ground floor to the petitioner during the temporary injunction matter, the petitioner cannot be allowed to steal a march on the Court by disturbing the state of possession of the suit property during the pendency of the temporary injunction matter but the petitioner is entitled to retain possession of the first floor because that was the status quo ante before the filing of the suit and the order of mandatory injunction will be operative only as to the ground floor of the suit building. [Ganesh Chandra Saha Vs. Noor Mohammad Miah and others 2 BLC (AD) 119]
Bars granting of mandatory injunction agaisnt breach of contract
Rupali Bank after denationalisation and its incorporation under the Companies Act, 1994 has become a private Bank and as such the relationship between its employer and employee is that of master and servant. As in a suit for declaration against dismissal from service no mandatory injunction can be granted, such suit is not maintainable. An employer can not be compelled to retain its employee whom it is not willing to retain. However the plaintiff may get compensation as per service regulation. [Jahiniddin (Md.) Vs. Rupali Bank Ltd. and others 13 MLR (2008) 47-52]
Injunction and contract of personal service.-(1) Declaration that a servant be deemed to be in service of his mater and for a Mandatory injunction for reinstatement of services when the relationship between the parties is one of master and servant offends section 42 of Specific Relief Act and cannot be granted. 26 DLR 11H 23 DLR 79 Dac.
Mandatory Injunction.-(1) It is to be noted that section 55 of S. R Act deals with Mandatory Injunction which directs itself to prevent the breach of contract or obligation (vide section 55 of SR Act 1877) and a temporary injunction as prescribed in section 53 of S. R Act does not exclude an injunction of a Mandatory nature (1981 Mad 586) This type of injunction can be issued only in exceptional circumstances and to maintain status quo on the date of the suit.
The mandatory Injunction Is an order requires in the deft to do some positive act for the purpose of putting and to a wrongful state of things created by him or otherwise in fulfilment of his logal obligations, So in case of Mandatory Injunction, prompt action is very essential, if an injunction is desired remedy. It is to be noted that the granting of mandatory injunction in the form of temporary nature is always a matter for the discretion of the Court in every case. Anyhow the Court has the power to issue temporary injunction on interlocutory application in a Mandatory form 1962 SC 527 Ind; 35 DLR 42
It is noteworthy to point out that under inherent power court, can grant mandatory injunction in a form of temporary injunction application (35 DLR 42 AD: 22 DLR 694 Dac, 28 DLR 449 Dac, 31 DLR 144 AD). It is granted only to restore the status quo and not to establish a new state of thing. (Bangladesh Supreme Cout Digest Vol. 1 page 206). It is always to be brone in mand that even in case where it is granted, the order must not go futher than restring the condition that existed at the time of the institution of the suit and must not create a new sfate of thing. 1956 Cal 428; 67. IC 742.
So the language of rule 1 of order XXXIX is wide enough to include the order of Mandatory injunction upon an interlocutory application. (1969 Andra 1. 1959 Karala 277, 35 DLR 42 Ad 22 DLR 694H). Further Civil Court has to issue Temporary Mandatory injunction in exercise of its inherent POIO (35 DLR 42 Ad 28 DLR 449, 31 DLR 144 AD). It is always to be borne in mind that in granting temporary injunction in a mandatory form, the Court must be satisfied that the matter is urgent and injunction is needed to immediate injury. 28 DLR 491, 35 DLR 42 AD, 29 DLR 82 SC.
An order of Mandatory Injunction in ad interim-form issued by Court only when there is an imminent and grave denger to life and property and only for the purpose of restoring or maintaining status quo and not granted to establish new state of things differing from the state which existed at the date when the suit was instituted. 22 DLR 694, 41 SC; 763 Dac.
It is to be noted that Mandatory injunction on en interlocutory application may be granted to restore status quo. 35 DLR 42 AD 22 DLR 694 Dac, 41 SC, 31 DLR 144 AD 33 DLR 298 AD.
Court has power to issue Mandatory injunction pending trial. But it is to be borne in mind that Mandatory Injunction on a interlocutory application is granted sparingly and that too not to establish a new state of things but to restore Status quo. 428: 35 DLR 42 AD.
A mandatory Injunction can be issued on an interlocutory application where a notice of institution of suit and the prayer made in the plaint for injunction to restrain the doing of a certain act, the deft does that act and thereby alters the facteal basis of the suit claim. When the injury is immediate and pressing and irreparable and clearly established by the proofs and not acquiesced in by the plff, a temporary mandatory injunction may be granted, although the act complain of was fully completed before the commencement of the suit. So it is not that temporary mandatory injunction can be granted only to restore the status quo.
Deft when puts up construction pendente lite or after decree, Court may order its demolition (1980 Pat 197). It is pertinent to point out that temporary injunction in a mandatory form cannot be issued under rules 1 and 2 of order XXXIX except when there is immediate, and grave danger to the life and property and only for the purpose of restoration or maintaining status quo. 35 DLR 42 AD; 31 DLR 117; 22 DLR 694H, 28 DLR 448H, 20 DLR 510 Dac, 7 DLR 606, 1956 Cal 428.
Suit for a Mandatory injunction for service benefits etc. The plaintiff respondents was an employee of the trust and was not an employee of any statutory corporation and his service was not under the control of the Government or statutory corporation and his office had no public character and the power of dismissal was not exercised on behalf of public corporation and his terms of services are not regulated by statutory provisions and he has no legal character and hence, the order passed by the trial court, affirmed by the appellate Court and maintained by the High Court Division that the defendant will not create any hindrance to the plaintiff from performing his responsibilities in his post with his pay are not sustainable in law.
While Disciplinary proceedings were going on against the plaintiff he voluntarily tendered his resignation on 29.06.2009 which he did not withdraw and hence, he is bound by his letter of resignation and cannot claim any service benefit from the date of his resignation but the trial court, appellate court and the High Court Division did not consider the same. In the trial court the plaintiff alleged that his resignation was not voluntary and it was obtained from him forcibly, but this allegation has not been supported by any corroborative evidence. In the circumstances, the plaintiff is not entitled to claim any service benefit form the date of his resignation.
The Appellate Division held that the instant case is a suit for declaration and for a permanent injunction as a consequential relief to the effect that the defendant be restrained from disturbing the plaintiff in his service. It is the admitted position that the plaintiff is out of his office consequent to the order of his dismissal from service and, therefore. the decree for permanent injunction cannot be an effective relief if the plaintiff gets the declaratory decree to the effect that his dismissal is illegal. Under such circumstances the plaintiff ought to have prayed for a decree for a mandatory injunction under section 55 of the Specific Relief Act but clause (e) of section 56 of the Specific Relief Act is a bar to get the decree for mandatory injunction in the case of the plaintiff and hence the suit as framed is not maintainable on the ground that a declaratory decree will not be enough and that even a decree for mandatory injunction as consequential relief is barred under the law. Further, applying the principles of the decisions as referred to above in the instant case, it is clear that the High Court Division had fallen into an error in giving the declaration because that would amount to forcing an employee upon an unwilling master. Such declaration cannot be given in law and only relief, if at all could be a claim for damages but in this case the plaintiff did not frame his suit for damages therefore, under the Law, he could not claim any relief." It would be worthwhile if the plaintiff respondent could ventilate his grievances in a properly instituted money suit or so to say for damages. In view of the above, the Appellate Division finds merit in the appeal. Accordingly, the appeal is allowed. [2023] 29 ALR (AD) 17
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