JUDGMENT : 1. This petition under Article 227 of the Constitution of India has been preferred by the petitioner/defendant being aggrieved by the order dated 14.03.2024 passed in MCA No.3/2024 by the Second District Judge, Shujalpur, District Shajapur reversing the order dated 15.02.2024 passed in RCS No.10-A/2024 by the First Civil Judge, Junior Division, Shujalpur, District Shajapur and allowing an application under Order 39 Rule 1 and 2 of the CPC preferred by the plaintiff/respondent. 2. The facts of the case in brief are that on 15.01.2024 the plaintiff instituted an action before the trial Court for permanent injunction restraining the defendant from forcibly dispossessing her from the suit shop, from causing any damage to it or from interfering with her possession over the same. She submitted that the defendant had constructed 27 shops in front of its school ground and had auctioned the same in which one shop measuring 5 x 3 square meter was allotted to plaintiff for a consideration of Rs.3,96,000/- on rent at Rs.1,026/- per month. The shop of plaintiff is bearing No.7/1. The tenancy of the suit shop has been renewed from time to time lastly on 15.01.2022 for a period of 35 months expiring on 15.09.2025. The plaintiff has not violated any of the terms of the tenancy and is carrying on her business therefrom. The defendant is however making efforts for constructing a C.M. Rise School and has issued a notice dated 30.12.2023 to plaintiff to vacate the suit shop. The same is wholly illegal and plaintiff is not liable to vacate the suit shop. 3. Along with the plaint the plaintiff also filed an application under Order 39 Rule 1 and 2 of the CPC praying for issuance of temporary injunction restraining the defendant from forcibly dispossessing her from the suit shop, from causing any damage to the same and from forcibly dispossessing her therefrom. The defendant filed its reply to the application submitting that in the school premises wherein the suit shop is situated, construction of the school at the cost of Rs.44.33 Crores is being done for which the suit shop is needed. For the construction, in a meeting held on 26.12.2024 by the Sub Divisional Officer it has been decided that a road has to be constructed from the land over which the suit shop is situated as per the sanctioned map. For the construction, in a meeting held on 26.12.2024 by the Sub Divisional Officer it has been decided that a road has to be constructed from the land over which the suit shop is situated as per the sanctioned map. The number of students in the school has increased from 1888 to about 4000-5000 and the same is running in two shifts hence it has been decided that the school be reconstructed. Presently there are three gates for entry to the school in place of which one big gate is proposed to be constructed. The shop of plaintiff is required for the said purpose hence plaintiff is not entitled for issuance of temporary injunction. 4. By order dated 14.02.2024 the trial Court rejected plaintiff's application for issuance of temporary injunction holding that from the documents filed by the plaintiff it appears that the suit shop has been constructed over land of a passage, that defendant is constructing a building of C.M. Rise School in the premises which is an infrastructure project hence it would not be expedient to issue temporary injunction in view of the provisions of Section 41 (ha) of Specific Relief Act, 1963. 5. Being aggrieved by the order aforesaid the plaintiff preferred an appeal before the appellate Court. Prior to filing of the said appeal the suit shop was demolished by the defendant. By the impugned order dated 14.03.2024 the appellate Court has held that plaintiff was in possession of the suit shop on the date of suit which has been demolished by the defendant during its pendency, that plaintiff had not violated any terms and conditions of the tenancy, that the suit shop was not on any land for a road or passage, that in the map produced by the defendant it has not been shown that the gate of the school is to be built over the land over which the suit shop is situated, that tenancy of plaintiff was valid upto 15.09.2025 hence defendant could not have demanded possession of the suit shop prior to that date in absence of any violation of the conditions of the tenancy. In consequence the appeal has been allowed and the defendant has been directed to rebuilt the suit shop within a period of 30 days and handover its possession to the plaintiff. 6. In consequence the appeal has been allowed and the defendant has been directed to rebuilt the suit shop within a period of 30 days and handover its possession to the plaintiff. 6. This petition has been preferred by the defendant mainly on the ground that the provisions of Section 41 (ha) of the Specific Relief Act have not been properly understood and applied by the appellate Court. The defendant is making construction of a school under the C.M. Rise School Project since the number of students has increased manifold. For that purpose an entry gate is required to be constructed over the land over which the suit shop has been built. The school is an infrastructure project within the meaning of Section 41 (ha) of the Specific Relief Act hence the appellate Court ought not to have issued mandatory injunction in favour of plaintiff. Notice was validly issued to the plaintiff but since she did not deliver possession of the suit shop and temporary injunction was refused by the trial Court, the same was legally demolished in which no illegality has been committed. The appellate Court has however exceeded its jurisdiction in granting mandatory injunction in favour of the plaintiff. The impugned order hence deserves to be set aside. Reliance has been placed by the learned counsel for the defendant on the decisions in N.G. Projects Limited Vs. Vinod Kumar Jain and Others (2022) 6 SCC 127 , Shashi Kumar Meena and Others Vs. Manish Singh and Others 2019 SCC Online MP 4347, Indo Nippon Chemicals Co. Ltd. V.s. Mumbai Metropolitan Region Development Authority 2023 SCC Online Bom 747 and Ravi Gupta Alias Ravi Prakash Vs. Govt. of NCT of Delhi and Another, CS (OS) No.500/2019 decided on 15.01.2020.. 6. Per contra, learned counsel for the plaintiff has submitted that defendant has acted in a highly illegal manner in demolishing the shop of plaintiff. The plaintiff was in legal occupation of the suit shop as a tenant. No violation of any of the terms of tenancy was done by her. The tenancy of the plaintiff has not been terminated by the defendant hence by merely issuing a notice, possession could not have been obtained forcefully by it. The next day after passing of order by the trial Court, the shop has been demolished even before appeal could be preferred. It is hence submitted that the petition deserves to be dismissed. The tenancy of the plaintiff has not been terminated by the defendant hence by merely issuing a notice, possession could not have been obtained forcefully by it. The next day after passing of order by the trial Court, the shop has been demolished even before appeal could be preferred. It is hence submitted that the petition deserves to be dismissed. 7. I have considered the submissions of the learned counsel for the parties and have perused the record. 8. Firstly it would be relevant to consider the issue as to whether any construction is proposed to be made over the land over which the suit shop is situated during constructing of school by the defendant under the C.M. Rise School scheme. Various documents were produced by the defendant before the Courts below showing the plans, estimates and maps of proposed construction of the school. In the map of the new construction three gates are shown to be proposed to be constructed towards the main road. From the map it has not been shown that the third gate which shall be constructed would be over the land over which the suit shop is situated. There is no statement or recital in the map to the said effect. From the map it is apparent that whatever construction is to be made by the defendant is within the school premises and no construction is proposed to be made over the land of the suit shop. It is hence apparent that the new construction to be made by the defendant would not in any manner impact the suit shop which is not a hindrance to the proposed construction of the defendant which is contended by it to be an infrastructure project. Categoric finding in this regard has been recorded by the appellate Court in paragraph 28 of its order and no material has been brought on record by the defendant to demonstrate that the said finding is factually incorrect in any manner in view of which there is no reason to disbelieve the same. In such circumstances the provisions of Section 41 (ha) of the Specific Relief Act, 1963 do not help the defendant in any manner and the judgments in that regard relied upon by the learned counsel for the defendant are not required to be considered. 9. Admittedly the plaintiff is a tenant of defendant in the suit shop. In such circumstances the provisions of Section 41 (ha) of the Specific Relief Act, 1963 do not help the defendant in any manner and the judgments in that regard relied upon by the learned counsel for the defendant are not required to be considered. 9. Admittedly the plaintiff is a tenant of defendant in the suit shop. The tenancy was renewed from time to time and was for the last time renewed on 15.10.2022 for a period of 35 months ending on 15.09.2025. The same was very much in force at the time of filing of the suit by plaintiff. In the notice which had been issued by the defendant to plaintiff, she was told to vacate the suit shop by 25.01.2024. She immediately instituted the suit along with an application for issuance of temporary injunction which was rejected on 15.02.2024. On the very next day, early in the morning, the defendant demolished the suit shop though appeal against the order dated 15.02.2024 was preferred by plaintiff on the very next day. The defendant did not afford a breathing time of even 24 hours to the plaintiff to approach the appellate Court and seek issuance of interim order in her favour. In the facts of the case, heavens would not have fallen if plaintiff had been granted reasonable time for approaching the appellate Court. 10. From a perusal of the agreement executed between the parties it is seen that a condition has been incorporated therein that if plaintiff continues to pay regular rent of the suit shop she would be entitled to retain possession of the same and after expiry of the period of 35 months she would be entitled for renewing the tenancy upon increase of rent by 10%. There is no clause in the agreement which entitles the defendant to terminate the tenancy of the plaintiff prior to expiry of its period. The only grounds of termination provided in the agreement are when plaintiff keeps a sub tenant or creates any nuisance. That is not the case of the defendant itself. In absence of any enabling provision in the tenancy agreement entitling the defendant to terminate the tenancy by simply issuing a notice, the same could not have been done by the defendant during subsistence of the tenancy. That is not the case of the defendant itself. In absence of any enabling provision in the tenancy agreement entitling the defendant to terminate the tenancy by simply issuing a notice, the same could not have been done by the defendant during subsistence of the tenancy. Pertinently the notice which was issued by defendant to plaintiff only demanded possession of the suit shop from her without even terminating the tenancy itself. The plaintiff being a lawful tenant under an agreement and not in violation of any terms or conditions of the same could not have been forcibly dispossessed by the defendant. On the contrary, upon rejection of her application for issuance of temporary injunction the suit shop has been demolished by the defendant in an autocratic, high handed and illegal manner which cannot be countenanced . 11. In the available facts and circumstances of the case, the appellate Court has rightly directed the defendant to reconstruct the suit shop and to deliver its possession to the plaintiff by applying the principles as regards mandatory injunction laid down by the Apex Court in the case of Dorab Cawasji Warden Vs Coomi Sorab Warden 1990 (2) SCC 117 in which it has been held as under :- “16. The relief of interlocutory mandatory injunctions are thus 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 or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff 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. Generally stated these guidelines are: (1) The plaintiff 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. 17. 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 circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” 12. Since the suit shop has been illegally demolished during pendency of the suit it was not obligatory on part of the plaintiff to have either amended the plaint or to have filed any application before the appellate Court for issuance of mandatory injunction in her favour which could have been and has rightly been granted by the appellate Court. It has already been held by the Apex Court in State of M.P. and Another Vs. Uttam Chand and Others 2000 (2) JLJ 143 that if during pendency of suit plaintiff is dispossessed from the disputed property the Court is competent to grant relief of possession without amending the plaint. It was held as under :- “22. The last argument of the learned counsel for the appellants is that mandatory injunction cannot be granted without notice to the appellants. The relief of mandatory injunction is equitable and discretionary and the possession of the trespasser cannot be protected. The learned counsel fort the appellants/State cited two decisions of this Court reported in 1973 JLJ 914 : 1973 MPLJ 973 (Rama and another v. Mangilal) in which it was held that mandatory injunction should not be granted to restore status-quo on date earlier to suit, and 1990 (I) MPWN 136 Dattatraya Vaishampayan v. Janakarya Vibhag Karamchari Grih Nirman Sahakari Samiti in which it has been held that possession must be legal and the injunction cannot be granted in favour of trespasser. 23. 23. In reply the learned counsel for the Repondents submitted that mandatory injunction can be granted on interlocutory applications. They are not trespasser. Notices were already served on the Government Pleader. During the pendency of the suit if the plaintiff is dispossessed from the property-in-dispute, the Court is competent to grant the relief of possession even without amendment in the plaint. The learned Court below has rightly granted mandatory injunction on the ground that on the day of the suit Respondent No. 5 was admittedly in possession and he was dispossessed on the same day. The learned Court below also came to the conclusion that it appears that the Respondents were dispossessed subsequently but the proceedings were drawn in the date of 21.6.1999. Admittedly Respondent No. 5 was found in possession on the day of the suit. There is a prima facie case in favour of the Respondents and the balance of convenience is also in their favour and on the basis of the decisions in case of Mansingh v. Mst. Parobai [ 1990 (I) MPWN 37 ] and in case of Darshanlal v. Ramshanker [ 1981 (I) MPWN 111 ] in which it was held that the possession of the Respondents may be restored if they are dispossessed after institution of the suit or during pendency of suit the discretion can be exercised.” 13. Thus in view of the aforesaid discussion, I do not find that the appellate Court has committed any illegality in passing the impugned order issuing mandatory injunction in favour of plaintiff. The petition is found to be devoid of merits and is hereby dismissed.