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all are jointly and severally liable to the claim; but however, the Road Transport Corporation, in terms of the lease agreement entered into with the registered owner, would be entitled to recover the amount paid to the claimants from the owner as stipulated in the agreement or from the insurer.

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Page 1 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5293 OF 2010 Managing Director, K.S.R.T.C. ....

(1) The courts can grant interlocutory mandatory injunction in certain special circumstances. [340E] (2) The relief of interlocutory mandatory injunction is granted generally to preserve or restore the status quo of the last non- contested status which preceded the pending controversy until the final hearing when full relief may be granted. But since the granting or non-granting of such an injunction may cause great injustice or irreparable harm to one of the parties, the Courts have evolved certain guide- lines. [343F-H] (3) Generally stated, the guidelines are: (1) The plain- tiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction; (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money; (3) The balance of convenience is in favour of the one seeking such relief. [344A-B] Shepherd Homes Ltd. v. Sandham, [1970] 3 All ER 402; Evans Marcgall & Co. Ltd. . Bertola SA, [1973] 1 All ER 992; Films Rover International Ltd. & Ors. v. Cannon Film Sales Ltd., [1986] 3 All ER 772; Rasul Karim & Anr. v. Pirubhai Amirbhai, ILR 1914 (38) Bom. 381; Champsey Bgimji & Co. v. The Jamna Flour Mills Co. Ltd., ILR 1914 (16) Born. 566; M. Kandaswami Chetty v. P. Subramania, ILR (1918) (4) Mad. 208; Israil v. Shamser Rahman, ILR 1914 (41) Cal. 436 and Nandan Pictures Ltd. v. Art Pictures, AIR 1956 Cal. 428, referred to. (4) Being essentially an equitable relief, the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circum- stances in each case. [344C] (5) In considering the question of interim mandatory injunction in a suit filed under section 44 of the Act, the Court has also to keep in mind the restriction on the rights of the transferee to joint possession under that section. [344D] 335 (6) In order to attract the second paragraph of section 44 of the Act the subject-matter of the transfer has to be dwelling house belonging to an undivided family and the transfer is of a share in the same to a person who is not a member of the family. [345A] Sultan Begam and Ors. v. Debi Prasad, [1908] ILR 30 All 324; Khirode Chandra Ghoshal & Anr. v. Saroda Prasad Mitra, [1910] 7 IC 436; Nil Kamal Bhattacharjya & Anr. v. Kamakshya Charan Bhattacharjya & Anr., AIR 1928 Cal. 539; Sivaramayya v. Benkata Subbamma, AIR 1930 Madras 561; Bhim Singh v. Ratnakar, AIR 1971 Orissa 198 and Udayanath Sahu v. Ratnakar Bej, AIR 1957 Orissa 139, referred to. (7) The ratio of the decisions rendered under section 4 of the Partition Act equally apply to the interpretation of the second paragraph of section 44 as the provisions are complementary to each other and the terms "undivided family" and "dwelling house" have the same meaning in both the sections. [349B] (8) Even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property, that is, the property had not been divided by metes and bounds, it would be within the provisions of section 44 of the Act. [350D] (9) In the absence of a documents evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property is held by the appellant and his brother in equal undivided shares, the plaintiff- appellant has shown a prima facie case that the dwelling house belonged to an undivided family consisting of himself and his brother. Therefore, the transfer by defendants 1 to 3 would come within the mischief of second paragraph of section 44 of the Act. [350B-C] (10) Clause 6 of the agreement to sell clearly shows that the fourth respondent knew that respondents 1 to 3 had only a limited right to transfer their undivided one half share to a stranger purchaser and they comtemplated litiga- tion in this regard. The said sale was itself hurriedly executed in a hush-hush manner keeping the entire transac- tion secret from the appellant. The purchasers were also inducted in the premises in a manner which clearly suggests that the respondents were attempting to forestall the situa- tion and to gain an undue advantage in hurried and clandes- tine manner defeating the appellant's attempt to go 336 to court for appropriate relief. The respondents in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under section 44 of the Transfer of Property Act no longer survived in view of their taking possession. [351 F; 352D-E] (11) The facts in the instant case clearly establish that not only a refusal to grant an interim mandatory in- junction will do irreparable injury to the appellant but also balance of convenience is in favour of the appellant for the grant of such injunction. [352F]

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PETITIONER: DORAB CAWASJI WARDEN Vs. RESPONDENT: COOMI SORAB WARDEN & ORS. DATE OF JUDGMENT13/02/1990 BENCH: SHARMA, L.M. (...