Spencer and Srinivasa Ayyangar, JJ.:— Upon the question whether Courts in this country have the power by virtue of Order XXXIX, rule 2 of the Code of Civil Procedure, to issue temporary injunctions in a mandatory form, we are not prepared to adopt the opinion expressed by Beaman, J., in Rasul Karim v. Pirubhai Amirbhai(1). The description of temporary injunctions in section 53, Specific Relief Act, does not exclude injunctions at a mandatory nature, and in Israil v. Shamser Rahman(2), upon an application for an interim injunction, pending the disposal of a suit is was ordered that defendant should that only be restrained from further erection of a building but that he should pull down so much of it as he had erected after he became aware of the institution of the plaintiff's suit. We also may observe that Shah, J., did not agree with the opinion of his learned brother in Rasul Karim v. Pirubhai Amirbhai and that two other Judges of the Bombay High Court took a different view from Beaman, J., in Champsey Bhimji & Co.…Defendants v. Jamna Flour Mills Co. Ltd.…Plaintiffs(3).
On the merits, however, we are of opinion that the present was not a case of such urgency as to make it necessary for the protection of the plaintiff's rights that the defendant should be made to remove the screen put up by him before the rights of the parties were heard and determined in the regular suit which was filed for this very purpose. The facts of this case resamble those of Bonner v. Great Western Railway Company(4) in which a temporary injunction was disallowed.
The question of what rights the plaintiff possessed to light and air through the window which the defendant blocked by his screen might very well have been left to be decided in the suit without anticipating the results of it. We allow the appeal. Each party will bear his own costs in this Court.
N.R