Court case(1990) 2 SCC 117

A flat in Bombay was owned in undivided shares by the appellant and his brother's branch of the family. After the brother's death his widow and sons sold their undivided share to strangers, who moved into the flat. The appellant, relying on the rule that a stranger who buys a share in an undivided dwelling house of a family may not claim joint possession (s. 44 of the Transfer of Property Act), sued for an injunction and applied for an interim mandatory injunction directing the purchasers to vacate. The High Court refused it.

The Supreme Court granted the interim mandatory injunction. Such relief is granted sparingly and only in clear cases, because it requires a party to undo something before trial. The court laid down guidelines: (1) the plaintiff must show a strong case for trial, a standard higher than the prima facie case required for a prohibitory injunction; (2) the injunction must be necessary to prevent irreparable or serious injury which normally cannot be compensated in money; and (3) the balance of convenience must favour the applicant. These are guidelines, not a rigid formula, and the court retains its discretion. On the facts, the strangers had taken possession in the face of a clear statutory bar, so the appellant was entitled to have them removed pending suit.