Abdul Samad v. Nahakhhan

**OP(C).No.736 OF 2019** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **OP(C).No.736 OF 2019** **AGAINST THE JUDGMENT IN CMA 28/2018 DATED 07-12-2018 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA** **AGAINST THE JUDGMENT IN OS 165/2017 DATED 19-03-2018 OF MUNSIFF COURT,KAYAMKULAM** ## **PETITIONER:** **ABDUL SAMAD AGED 47 YEARS S/O.MUHAMMED KUNJU, B.H. BUILDINGS,KEERIKKAD SOUTH MURI, KEERIKKD VILLAGE, KARTHIKAPALLY TALUK, KAYAMKULAM POST, ALAPPUZHA DISTRICT,PIN CODE-690 501** **BY ADVS. SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR** ## **RESPONDENTS:** **NAHAKHAN AGED 47 YEARS S/O. YUSUF KUNJU, PADINJARE MANGALATHU,KEERIKKAD SOUTH MURI, KEERIKKAD VILLAGE, KAYAMKULAM POST, ALAPPUZHA DISTRICT,PIN CODE-690 501** **R1 BY ADV. DR.V.N.SANKARJEE R1 BY ADV. SRI.V.N.MADHUSUDANAN R1 BY ADV. SRI.S.SIDHARDHAN R1 BY ADV. SMT.R.UDAYA JYOTHI R1 BY ADV. SRI.SUDHAKARAN V. R1 BY ADV. SMT.ARYA BALACHANDRAN R1 BY ADV. SHRI.SUNNY K.MANJALY R1 BY ADV. SRI.M.M.VINOD** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-09-2020, THE COURT ON 01-10-2020 DELIVERED THE FOLLOWING:** **OP(C).No.736 OF 2019** **2** ## **R. NARAYANA PISHARADI, J ---------------------------------------------------O.P (C) No. 736 of 2019** **-----------------------------------------------------** Dated this the 1[st] day of October, 2020 ## **JUDGMENT** The petitioner is the plaintiff and the respondent is the defendant in the suit O.S.No.165/2017 on the file of the Munsiff's Court, Kayamkulam. 2. The plaintiff is said to be suffering from bipolar disorder and the suit was instituted by his wife as his next friend. 3. In this original petition filed under Article 227 of the Constitution of India, the plaintiff has challenged the order of the trial court granting interim mandatory injunction in favour of the defendant, which stands confirmed by the appellate court. 4. The plaintiff has not produced in this original petition copy of the plaint or copy of the application for interim mandatory injunction filed by the defendant or copy of the counter statement filed in that application. Therefore, the original petition is considered in the light of the facts mentioned in the impugned orders passed by the courts below. **OP(C).No.736 OF 2019** **3** 5. The suit is instituted for granting a decree of declaration of title of the plaintiff over the plaint schedule property and also for granting a decree of prohibitory injunction. 6. The case of the plaintiff in the suit is, that the plaint schedule property belonged to him, that on 19.09.2016 he executed sale deed No.1033/2016 in respect of that property in favour of the defendant, that the aforesaid sale deed was executed by him without knowing its contents as he was suffering from mental illness, that the sale deed is not supported by consideration, that the sale deed is void and that the plaint schedule property is in his possession. The suit was instituted by the plaintiff on the basis of the apprehension that the defendant was taking steps to alienate the plaint schedule property and to make alterations to its nature. 7. The defendant filed an application as I.A.No.1509/2017 in the suit for granting an order of interim mandatory injunction, directing the plaintiff to reconstruct the wall of the shop room in the building which was allegedly demolished by the plaintiff and to open the shutters of the shop room by removing the padlocks put in by the plaintiff inside. 8. The defendant filed the aforesaid application on the following allegations: The property having an extent of 93 sq.m. in **OP(C).No.736 OF 2019** **4** re-survey No.110/2 in block No.12 of the Keerikkad Village and the shop rooms therein bearing Nos. KMC II/139 F and KMC II/139 G and the right to make construction on its upstairs was purchased by the defendant from the plaintiff and thereafter, the defendant is in possession and enjoyment of the property. With the ulterior motive to obtain an ex-parte order of injunction by misleading the court, the plant schedule property was described in the plaint suppressing the existence of the shop rooms. The plaintiff did not take out a commission, though it was necessary. The shop rooms which belong to the defendant are lying together without any common boundary separating the same. The southern wall of the said shop rooms and the northern wall of the plaintiff's residential house are common. Further, the western wall of the defendant's shop room and the adjacent wall of the plaintiff's shop room also are common. Taking advantage of the absence of any commission report to show the status of the shop rooms at the time of institution of the suit, on the right of 19.05.2017, the plaintiff and his wife and their men trespassed into the shop rooms belonging to the defendant after demolishing the western extremity of the common wall of the southern side and locked the shutters of the plaint schedule shop rooms from inside. Due to the said reason, the defendant is not able to open the shop rooms from **OP(C).No.736 OF 2019** **5** outside. The defendant came to know about the said act only on 20.05.2017 at 11.30 a.m when his wife attempted to open the shutters of the shop rooms from outside. She preferred a complaint before the Sub Inspector of Police, Kayamkulam. Consequently, the police reached the spot and inspected the premises and noticed that the plaintiff had trespassed into the plaint schedule shop rooms after demolishing the common wall and locked the shutters from inside. The plaintiff concealed the demolished portion by placing an almirah there. The defendant then took out a commission and obtained a report. The plaintiff had no right to demolish the wall of the shop room of the defendant forcibly and to trespass into the same. He is liable to reconstruct the western extremity of the southern wall of the shop room of the defendant, which was demolished on 19.05.2017, and to open the padlock put on the shutters. 9. The plaintiff filed objection to the application, contending as follows: The application filed by the defendant for granting interim mandatory injunction against the plaintiff is not maintainable. The defendant was never in possession of the plaint schedule property. The plaintiff did not take out any commission due to severe financial stringency. He did not demolish any wall on 19.05.2017. Till the filing of the suit, the plaintiff had locked the shutters of the shop rooms **OP(C).No.736 OF 2019** **6** from inside and outside. However, after the institution of the suit, the defendant broke open the padlock outside the plaint schedule shop room and locked the same using new padlocks. The plaintiff had locked the shop room from inside for the last several years. The defendant had preferred several frivolous complaints before the Kayamkulam police and harassed the plaintiff and his wife. The statement in the commission report that a door was erected after the construction of the building is correct. The building was constructed in the year 2000 and the door was erected in the year 2013. The commissioner has not reported that a door was erected recently after demolishing the wall. The application filed by the defendant is liable to be dismissed. 10. The trial court, on the basis of the commission report which was obtained at the instance of the defendant, found that the plaintiff had put door on the southern wall of the shop rooms in the property subsequent to the institution of the suit and locked the shop room from inside using padlocks. Therefore, the trial court granted an order of mandatory injunction directing the plaintiff to reconstruct the western extremity of the wall on the southern side of the shop rooms Nos. KMC II/139 F and KMC II/139 G in the plaint schedule property and to open the three padlocks put on the shutters of the said shop **OP(C).No.736 OF 2019** **7** rooms from inside. 11. The plaintiff filed the appeal C.M.A. No.26/2018 challenging the aforesaid order passed by the trial court. The appellate court dismissed the appeal and confirmed the findings and the order of the trial court. 12. The plaintiff has filed this original petition challenging the orders passed by the courts below. 13. Heard the learned counsel for the petitioner and also the respondent. 14. Learned counsel for the petitioner contended that, an order of interim mandatory injunction can be passed only for restoring status quo ante at the time of the institution of the suit. Learned counsel would further contend that, in the instant case, there was no material before the trial court to ascertain the status quo with regard to the plaint schedule property at the time of institution of the suit and therefore, the courts below have gone wrong in passing the impugned orders. 15. Learned counsel for the respondent contended that, the plaintiff did not deliberately take out any commission for local inspection at the time of institution of the suit, with view to screen from the court the real state of affairs. Learned counsel contended **OP(C).No.736 OF 2019** **8** that, immediately on coming to know about the demolition of the wall of the shop room by the plaintiff, the defendant took out a commission and it is on the basis of the report of the commissioner that the trial court found that the plaintiff had demolished the wall of the shop room. 16. The provision contained in Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 (for short 'the Code') reads as follows: “1. Cases in which temporary injunction may be granted.-- Where in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property **OP(C).No.736 OF 2019** **9** in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.” 17. The aforesaid provision contemplates granting three types of orders under three different and distinct situations. Clause (a) of Order XXXIX Rule 1 of the Code deals with a situation where the property in dispute is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree. Clause (b) of Order XXXIX Rule 1 of the Code contemplates a situation where the disputed property is under the threat of being removed or disposed of by the defendant with the intention of defrauding his creditors. Clause (c) of Order XXXIX Rule 1 of the Code deals with a situation where the defendant threatens to dispossess the plaintiff or otherwise causes injury to the plaintiff in respect of disputed property. 18. The orders under Clauses (b) and (c) of Order XXXIX Rule 1 of the Code are to be made against the defendant in the suit. On the other hand, Clause (a) of Order XXXIX Rule 1 of the Code contemplates passing order against any party to the suit. After the institution of the suit, the plaintiff may act detrimental to the interest of the defendant in respect of the property which is the the subject matter of the suit by allowing it to be wasted or damaged or alienated. In such a situation, the defendant can invoke the provision contained **OP(C).No.736 OF 2019** **10** in Clause (a) of Order XXXIX Rule 1 of the Code. It appears that the legislature has intentionally used the expression “any party to the suit” in Clause (a) of Order XXXIX Rule 1 of the Code which would mean that the defendant can seek an order of temporary injunction against the plaintiff when the property in dispute is in danger of being wasted, damaged or alienated by the plaintiff. The mischief to be prevented by an order of temporary injunction under situations covered by clauses (b) and (c) of Rule 1 of Order XXXIX of the Code should be that of the defendant. But, the mischief sought to be prevented by an order of temporary injunction in a situation covered by clause (a) of Rule 1 may be of either of the parties to the suit. 19. Granting an order of temporary injunction under clause (a) of Rule 1 of Order XXXIX includes an order of interim mandatory injunction also. ## 20. In **Dorab Cawasji Warden V. Coomi Sorab Warden : AIR** **1990 SC 867** , the Supreme Court has held as follows: “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 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 **OP(C).No.736 OF 2019** **11** 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. (3) The balance of convenience is in favour of the one seeking such relief. 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”. (emphasis supplied) 21. Admittedly, in the instant case, the document of title in respect of the plaint schedule property is in the name of the defendant. The plaintiff had admittedly executed the sale deed conveying the plaint schedule property in favour of the defendant, who is none other than his brother-in-law. The plea of the plaintiff is that he was not aware of the contents of the sale deed executed by him as he was suffering from bipolar disorder and that the sale deed executed **OP(C).No.736 OF 2019** **12** by him is void. It is the further plea of the plaintiff that there was no consideration for the sale deed. These are all matters which have to be proved by adducing evidence during the trial of the case. The defendant had produced before the trial court the sale deed and other necessary documents to prove that he had paid the sale consideration to the plaintiff. 22. The plaintiff did not even mention in the plaint the existence of the shop rooms in the property. It is the plea of the plaintiff that he has been in possession of the plaint schedule property even after the execution of the sale deed in favour of the defendant. However, the plaintiff did not take out any commission at the time of institution of the suit to conduct any local inspection of the property and he deliberately screened the real state of affairs in respect of the property from the court. 23. Immediately on coming to know about the demolition of the wall of the shop room, the defendant took out a commission and obtained a report with regard to the condition and nature of the property and the shop rooms therein. The trial court relied upon the commission report to find that demolition of a part of the wall of the shop room was recently done and the shop room was locked from inside by using padlock. **OP(C).No.736 OF 2019** **13** ## 24. The trial court has stated in its order as follows: “The case of the defendant is that after the institution of the suit on 05.04.2017, the plaintiff and his wife and their men had trespassed into the shop rooms in the plaint schedule property on 19.05.2017 and locked its shutter from inside and the wife of the defendant came to know about the same on 20.05.2017 only when she had attempted to open the shop room from outside. Exts. B3 and B4 prove that the wife of the defendant had preferred a compliant before the Sub Inspector, Kayamkulam on 20.05.2017 and the police had registered Ext.B9, First Information Report out of the said occurrence...... After entering appearance, the defendant had taken out a commission and the said commissioner had submitted Ext.C1 report. In Ext.C1, it was reported that a door was created on the southern wall on the plaint schedule shop room facilitating entry from the building portion in the possession of the plaintiff. The said opening on the said wall, which was made subsequent to the date of construction of the building, as well as Ext. B9 F.I.R and the plaintiff's efforts to keep the lie of the shop rooms and its possession as on the date of institution of the suit away from the notice of the court by not taking out a commission during the time of admission of the suit itself proves that the plaintiff had locked the shop room from inside subsequent to the date of institution of the suit as contended by the defendant.” **OP(C).No.736 OF 2019** **14** 25. The appellate court has dealt with the matter as follows: “According to the defendant, taking advantage of the absence of commission report, after the filing of the suit, on 19.05.2017, the plaintiff and his wife and their men had trespassed into the shop-rooms belonged to the defendant, after dismantling the western extremity of the common wall on the southern side forcibly and locked the shutters of the plaint schedule shop rooms from inside. According to the defendant, he came to know about the same only on 20.05.2017 and that is only when he attempted to open the shop-room from outside. According to the defendant, on knowing about the same, he immediately preferred a complaint, before the S.I. of Police, Kayamkulam. The photocopy of the petition submitted before SHO Kayamkulam is marked as Ext.B3 and receipt issued from the Police Station showing the lodging of the said complaint is marked before the lower Court as Ext.B4 and certified copy of the mahazar prepared by the police is marked as Ext.B5 and the certified copy of the FIR registered on the basis of the complaint lodged by the defendant is marked as Ext.B6. Moreover, the defendant had taken out a commission and the Commissioner had submitted a report. The said report is marked as Ext.C1. In the commission report, it is seen stated that, in order to facilitate entry from the building portion, which is in the possession of the plaintiff, a door is seen created on the southern wall of the plaint schedule shop-room. According to him, the same seems to have been constructed subsequent to the date of construction of the building. According to him, the said portion is seen not properly leveled or plastered. Of course, Ext.C1 report helps the defendant to prove his contention **OP(C).No.736 OF 2019** **15** that, the plaintiff had dismantled the common wall to facilitate an entrance to the plaint schedule shop-rooms. Moreover, in the said background, nobody can be blamed, if it is inferred that, the plaintiff purposefully did not file a commission application along with the suit to screen the real state of affairs existing in the disputed property, from the view of the Court. Therefore, I am of the view that, the defendant had prima facie succeeded in showing that, after the institution of the suit and after obtaining an exparte interim injunction order, the plaintiff had demolished a portion of the common wall, which separates the plaint schedule shop-rooms with the portion of plaintiff's building and had locked the shop-rooms from inside”. 26. Prima facie, the defendant is the owner of the plaint schedule property. As noticed earlier, the plaintiff did not take out any commission to show that he retained possession of the plaint schedule property even after the execution of the sale deed in respect of the property in favour of the defendant. In such circumstances, defendant has got a strong prima facie case. By taking out a commission, the defendant was also able to show that, subsequent to the institution of the suit, the plaintiff demolished the wall of the shop room in the plaint schedule property and locked the shop room from inside using padlocks. If an order of interim mandatory injunction is not granted in his favour, it would cause irreparable injury to the defendant as he would not able to use the shop room of which, prima facie, he is the **OP(C).No.736 OF 2019** **16** owner. Therefore, the balance of convenience is also in favour of the defendant. 27. In the aforesaid circumstances, the trial court as well as the appellate court has properly considered the materials and taken a reasonable view of the matter. It cannot be found that the order passed by the trial court, which stands affirmed by the appellate court, is arbitrary or perverse or without jurisdiction. 28. The argument that under Order XXXIX Rules 1 and 2 of the Code, the Court has the jurisdiction to maintain the status of the parties on the date of filing of the suit or on the date of passing of the order but cannot direct the parties to do something which was not in existence at the time of filing of the suit, is not a general rule of universal application (See **Hammad Ahmed v. Abdul Majeed : (2019) 14 SCC 1** ). 29. True, an interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction (See **Kishore Kumar Khaitan v. Praveen Kumar Singh : AIR 2006 SC** **OP(C).No.736 OF 2019** **17** **1474** ). In the instant case, the courts below have concurrently found that, subsequent to the institution of the suit, the status of the property in dispute was altered by the plaintiff and it is detrimental to the interest of the defendant, who is the owner of the property. 30. At this juncture, it is also to be noted that the plaintiff had filed an application for temporary injunction for restraining the defendant from alienating the plaint schedule property and making any alteration to it. An ex-parte order of injunction was granted against the defendant in that application. Subsequently, the trial court vacated the ex-parte order of injunction and dismissed the application for temporary injunction filed by the plaintiff. The plaintiff had also filed an application for interim mandatory injunction against the defendant contending that the defendant had, on the next day of institution of the suit, locked the shop rooms in the plaint schedule property by using padlocks and praying that he may be directed to open the shutters of the shop rooms by removing the padlocks. The aforesaid application was also dismissed by the trial court. The appeals filed by the plaintiff against the aforesaid orders passed by the trial court were also dismissed. The original petitions filed by the plaintiff before this Court, challenging the orders of the appellate court refusing an order of injunction in his favour, have also been dismissed **OP(C).No.736 OF 2019** **18** by separate judgments. 31. When the subordinate courts have assumed jurisdiction which they do not have or have failed to exercise jurisdiction which they do have or when the jurisdiction though available, it is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, this Court may step in to exercise its supervisory jurisdiction under Article 227 of the Constitution. While exercising the said jurisdiction, this Court has a limited role to play. It is not the function of this Court, while exercising its supervisory jurisdiction, to enter into disputed questions on facts. When the orders passed by the courts below are not perverse or when it is not shown that the courts below have neglected or failed to take into consideration the relevant factors, interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution is not warranted. In exercising the supervisory power, the High Court does not act as an appellate court and it cannot review or re-weigh the evidence upon which the determination of the inferior court purports to be based. 32. In the aforesaid circumstances, I find no sufficient ground to interfere with the orders passed by the courts below. The original petition is liable to be dismissed. **OP(C).No.736 OF 2019** **19** Consequently, the original petition is dismissed. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn **OP(C).No.736 OF 2019** **20** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF JUDGMENT DATED 19.03.2018 IN I.A. NOS.984/2017,1235/2017,1509/2017 AND 1587/2017 IN O.S.NO. 165/2017 ON THE FILES OF THE MUNSIFF'S COURT, KAYAMKULAM.** **EXT.P2: COPY OF THE COMMON JUDGMENT IN C.M.A.NO.26/2018, C.M.A.NO.27/2018 AND C.M.A.NO.28/2018 ON THE FILES OF THE ADDITIONAL DISTRICT JUDGE-I, MAVELIKKARA DATED 07.12.2018 AND RECEIVED ON 15.12.2018.** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**