Baby v. Seema and Wilson

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942** ## **OP(C).No.1133 OF 2020** ## **PETITIONER/APPELLANT/PETITIONER/PLAINTIFF:** **BABY AGED 57 YEARS D/O.SAROJINI, NELLIKKUNNATHU VEEDU, EDATHARA, MURUKKUMON MURI, NILAMEL VILLAGE, KOTTARAKKARA TALUK.** **BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 SEEMA AGED 30 YEARS W/O.SAJEEVAN, EDATHARA, MURUKKUMONMURI, NILAMEL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691 535. 2 WILSON AGED 65 YEARS S/O.KOCHU PARVTHY, THUNDUVILA VEEDU, EDATHARA, MURUKKUMONMURI, NILAMEL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691 535.** ## **BY ADV.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30-09-2020, THE COURT ON 05-10-2020 DELIVERED THE FOLLOWING:** O.P(C) No.1133 of 2020 2 ## **R. NARAYANA PISHARADI, J** **---------------------------------------------------O.P (C) No. 1133 of 2020** **-----------------------------------------------------** Dated this the 5[th] day of October, 2020 ## **JUDGMENT** The petitioner is the plaintiff and the respondents are the defendants in the suit O.S. No. 531/2017 on the file of the Munsiff's Court, Kottarakara. 2. The suit is instituted for granting a decree of prohibitory injunction restraining the defendants from trespassing into the plaint B schedule way and closing the way by installing any gate and also causing any obstruction to the plaintiff to use the way. 3. The plaintiff filed an application as I.A. No. 3329/2017 (Ext.P2) for granting an order of temporary injunction restraining the defendants from committing the aforesaid acts. O.P(C) No.1133 of 2020 3 4. The defendants filed objection to the application for temporary injunction raising various contentions. 5. As per Ext.P5 order, the learned Munsiff dismissed Ext.P2 application on finding that the plaintiff failed to establish a prima facie case. 6. The plaintiff filed appeal as C.M.A.No.4/2018 challenging Ext.P5 order passed by the trial court. As per Ext.P6 judgment, the appellate court dismissed the appeal. 7. This original petition under Article 227 of the Constitution of India is filed by the plaintiff challenging the legality and propriety of Ext.P5 order and Ext.P6 judgment. 8. Heard learned counsel for the petitioner and also the respondents. 9. On a close scrutiny of Ext.P5 order and Ext.P6 judgment, it is seen that the trial court as well as the appellate court failed to examine whether the plaintiff had established a prima facie case with regard to the right claimed by her. 10. It is trite that an order of temporary injunction can be O.P(C) No.1133 of 2020 4 granted by the Court only if it is satisfied that the plaintiff has made out a prima facie case; that balance of convenience is in favour of passing an order of injunction; and that irreparable injury will be caused to the plaintiff, if the order of injunction sought is not granted. 11. The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the plaintiff's rights is compared with or weighed against the need for protection of the defendant's rights or likely infringement of the defendant's rights, the balance of convenience tilting in favour of the plaintiff; and (iii) clear possibility of irreparable injury being caused to the plaintiff if the temporary injunction is not granted. 12. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are O.P(C) No.1133 of 2020 5 both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the "balance of convenience" lies. 13. It is also well-settled that when a party fails to prove prima facie case, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all. When a party fails to prove prima facie case, it is not open to the Court to grant injunction in his O.P(C) No.1133 of 2020 6 favour, even if he has made out a case that balance of convenience is in his favour and that he would suffer irreparable loss and injury in case of refusing injunction (See **Kashi Math Samsthan v. Srimad Sudhindra Thirtha Swamy : A.I.R 2010 SC 296** ). 14. What is meant by 'prima facie case'? The contention of the plaintiff must be bona fide. The question sought to be tried must be a serious question and not merely a triable issue. In **Muthukoya v. Muthukoya : 1988 (1) KLT 664** , a Division Bench of this Court has held as follows: _“It is not every contention which is bona fide; it is not every question which is a serious question. Where can the court draw the line? There must be some material on record in support of the claim of legal right put forward by the person who seeks interlocutory relief of injunction; such material must, either by itself or in the light of material placed before the court by the opposite party, satisfy the court that it could, at that stage and under those circumstances act on it. This is precisely what can be comprehended by the expression 'prima facie case'._ ” (emphasis supplied). O.P(C) No.1133 of 2020 7 15. In the instant case, the specific plea of the plaintiff, as asserted in the plaint, is that there exists a way as described in the plaint B schedule and that it is a public way and that the defendants have no right to cause any obstruction to her to use that way. The specific plea made in the third paragraph of the plaint is that the disputed way is a public way. The plea of the defendants is that there is no way in existence as described in the plaint B schedule and that there exists a way inside their property but it is a private road. 16. On the basis of the aforesaid pleadings, the trial court should have examined whether there exists a way as described in the plaint B schedule and whether the plaintiff has established a prima facie case with regard to her claim that the aforesaid way is a public way to the use of which the defendants have no right to cause any obstruction. 17. The trial court did not specifically find whether any way as described in the plaint B schedule existed. But, the trial court found that there is a way and since the defendants claimed that the plaint B schedule way is their property and since the O.P(C) No.1133 of 2020 8 plaintiff did not claim any right of easement over their property, the plaintiff has got no prima facie case. The trial court blindly accepted the plea of the defendants that the way in existence forms part of their property and jumped to the conclusion that, without claiming any right of easement over that property, the plaintiff could not establish a prima facie case. The trial court did not consider, on the basis of the materials produced by the plaintiff, whether she could establish a prima facie case with regard to her claim that the disputed way is a public way. 18. The appellate court stated that the disputed way admittedly belongs to the defendants and therefore, the plaintiff can claim only an easement right over the way. The appellate court also ignored the plea of the plaintiff that the disputed way is a public way but assumed that the plaintiff has admitted that the way forms part of the property owned by the defendants. 19. In the instant case, as stated above, the trial court failed to consider and to enter a finding as to whether the plaintiff could, on the basis of the materials produced by her, establish a prima facie case that the disputed way is a public O.P(C) No.1133 of 2020 9 way. 20. It is a case where the trial court as well as the appellate court failed to exercise their jurisdiction properly. They failed to consider the relevant facts and materials. In such circumstances, this Court is compelled to invoke the power under Article 227 of the Constitution of India to interfere with the findings entered by the courts below. 21. Consequently, the original petition is allowed and Ext.P5 order and Ext.P6 judgment are set aside. Ext.P2 application for temporary injunction filed by the plaintiff is restored to the file of the trial court. The trial court shall consider and dispose of Ext.P2 application afresh. It is made clear that this Court has not made any findings with regard to the right of the plaintiff or the defendants over the disputed way. (sd/-) ## **R. NARAYANA PISHARADI JUDGE** **lsn** O.P(C) No.1133 of 2020 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** **THE TRUE COPY OF THE PLAINT IN OS NO.531/2017 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA.** - **EXHIBIT P2** - **THE TRUE COPY OF THE I.A.NO.3329/2017 IN OS NO.531/2017 DATED 9/10/2017 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA.** - **EXHIBIT P3 THE TRUE COPY OF OBJECTION TO THE IA.NO.3329/2017 IN OS NO.531/2017 DATED 12/12/2017 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA.** - **EXHIBIT P4 THE TRUE COPY OF THE COMMISSION REPORT IN IA.3330/2017 IN OS NO.531/2017 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA.** - **EXHIBIT P5 THE TRUE COPY OF THE ORDER PASSED IN IA.NO.3329/2017 IN OS NO.531/2017 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA DATED 24/01/2018.** - **EXHIBIT P6 THE TRUE COPY OF THE ORDER PASSED IN CMA.NO.4/2018 ON THE FILE OF THE SUB COURT, KOTTARAKKARA DT.29/11/2019.** - **EXHIBIT P7** **THE TRUE COPY OF THE PLAINT IN OS NO.552/2017 ON THE FILE OF THE MUNSIFF'S COURT, KOTTARAKKARA DTD 13/10/2017.** O.P(C) No.1133 of 2020 11 ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(a) A TRUE COPY OF COMMISSION REPORT MARKED AS EXTS.CI TO C3** **EXHIBIT R1(b)** **A TRUE COPY OF ORDER DATED 18.11.2017 IN I.A.NO.3424/17 IN O.S.NO.552/17 ON THE FILE OF THE COURT OF MUNSIFF, KOTTARAKARA** **TRUE COPY** **PS TO JUDGE**