IDUKKI DISTRICT ESTATE MAZDOOR SANGH v. BOYCE RUBBER ESTATE PRIVATE LTD.

1 OP(C) No.1875 of 2022 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 OP(C) NO. 1875 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN IA 15/2022 IN OS 182/2019 OF ``` ## **`MUNSIFF COURT, PEERUMEDU`** ## **`PETITIONER/S:`** ``` 11. IDUKKI DISTRICT ESTATE MAZDOOR SANGH, PERUVANTHANAM AREA COMMITTEE, MUNDAKAYAM EAST, REPRESENTED BY ITS SECRETARY, SUNIL S AGED 42 YEARS S/O SUKUMARAN, VALLIYAMKAVU KARA, KUPPAKKAYAM, PERUVANTHANAM VILLAGE, PEERMADU TALUK,, PIN - 685531 2MONSON AGED 54 YEARS S/O CHACKOCHI, T.R. & T COMPANY RUBBER ESTATE, KADAMAMKULAM, PERUVANTHANAM P.O, PERUVANTHANAM KARA, PERUVANTHANAM VILLAGE, PEERMADU TALUK , PIN - 685531 3GIREESH AGED 45 YEARS S/O V.G. SURENDRAN, RESIDING AT BOYCE RUBBER ESTATE LINES, PERUVANTHANAM P.O, PERUVANTHANAM KARA, PERUVANTHANAM VILLAGE, PEERMADU TALUK,, PIN - 685531 4T.G. SURESH AGED 50 YEARS S/O GOPI, RESIDING AT BOYCE RUBBER ESTATE LINES, PERUVANTHANAM P.O, PERUVANTHANAM KARA, PERUVANTHANAM VILLAGE, PEERMADU TALUK, , PIN - 685531 BY ADVS. TOM E. JACOB LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS ``` 2 OP(C) No.1875 of 2022 ## **`RESPONDENT/S:`** - `1 1. BOYCE RUBBER ESTATE PRIVATE LTD., REPRESENTED BY ITS MANAGER, KURIAN GEORGE VAZHOOR VILLAGE, KOTTAYAM DISTRICT. S/O LATE N.V. GEORGE, NIRAVATHU HOUSE, VAIRAMALA KARA, VAZHOOR TALUK, PIN - 686504` - `2 SAJI AGED 48 YEARS S/O SAHADEVAN, RESIDING AT BOYCE RUBBER ESTATE LINES, PERUVANTHANAM P.0, PERUVANTHANAM KARA, PERUVANTHANAM VILLAGE, PEERMADU, , PIN - 685531 BY ADVS. S.AJITH (PALAKKAD) - R1` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON ``` - `27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:` 3 OP(C) No.1875 of 2022 ## **C.S DIAS,J.** **--------------------------OP(C) No.1875 of 2022** **----------------------------Dated this the 27[th] day of October, 2022.** ## **JUDGMENT** Aggrieved by Ext P7 order passed by the Court of the Munsiff, Peerumedu (Trial Court), in IA 15/2022 in OS No.182/2019, the defendants in the suit have filed the original petition. The respondents in the original petition are the plaintiffs in the suit. 2. The facts leading to the original petition, in a nutshell, are: the respondents have filed the suit for a decree of permanent prohibitory injunction, to restrain the petitioners from obstructing the smooth functioning of their estate. Along with the suit, the respondents had filed IA No.685/2019 (Ext P2) for an order of interlocutory injunction. By Ext P2 order, the Trial Court allowed the application. Thereafter, the respondents filed IA No.15/2022 (Ext P3) alleging that the petitioners have violated Ext P2 order by constructing a shed in the 4 OP(C) No.1875 of 2022 property. The petitioners have filed Ext P4 objection to Ext P3 application. An Advocate Commissioner has filed Exts P5 and P6 reports. The Trial Court, on the basis of the commission reports, has erroneously passed Ext P7 order, by directing the shed to be removed. In fact, the petitioners have challenged Ext P2 order before the Court of the Subordinate Judge, Kattappana (Appellate Court), by filing CMA No.21/2022 with an application to condone the delay. Ext P7 is unsustainable in law. Hence the original petition. 3. The first respondent has filed a counter affidavit refuting the allegations in the original petition. They have contended that the petitioners have violated Ext P2 order by constructing a shed in the plaint schedule property. Even though the petitioners have filed CMA 20/2022, there is a delay of 918 days in filing the appeal. Hence, the appeal has not been admitted and no order of stay has been passed. The petitioners have flouted the directions of the Trial Court and constructed a shed in the plaint schedule property. The photographs and the 5 OP(C) No.1875 of 2022 commission report clearly reveal the violation. The Peruvamthanam Police have registered crime No.102/2022 against the workers of the first petitioner Union, for offences punishable under Ss.143, 147, 149, 427 and 447 of the Indian Penal Code. The first respondent had filed IA No.6/2020 before the court below, to issue a direction to the petitioners to remove the encroachments as noted in the commission report. The Trial Court allowed the application, by directing the petitioners to remove the obstruction. The petitioners have not complied the order. Then, the first respondent filed IA No.9/2021, for a direction to the petitioners to remove the newly erected shed under the supervision of an Advocate Commissioner. The court below was pleased to allow the said application by appointing an Advocate Commissioner to give effect to the order in IA No.6/2020. There are cases filed by the first respondent pending before the Industrial Tribunal, Idukki. The petitioners have violated Ext P2 order of injunction. The Trial Court 6 ## OP(C) No.1875 of 2022 was justified in passing Ext P7 order. There is no merit in the original petition and the same may be dismissed. 4. Heard; Sri.Tom E.Jacob, the learned counsel appearing for the petitioners and Sri.S Ajith, the learned counsel appearing for the first respondent. Service is declared complete on the second respondent. 5. The point is whether there is any error or illegality in Ext P7 order. 6. The Trial Court has passed Ext P2 order, which reads thus: ## **Point No.4** In the result, this petition is allowed as follows: The respondents are hereby restrained from causing any obstructions to the functioning of the petitioner estate, its offices and other activities in the plaint schedule property. They are also further restrained from conducting any agitations inside the plaint schedule property. No costs. 7. Even though the petitioners have contended that they have filed CMA 20/2022 before the Appellate 7 OP(C) No.1875 of 2022 Court, undisputedly, the appeal has not been admitted and no order of stay has been passed till date. 8. The first respondent has filed Ext P3 application, contending that the petitioners have violated Ext P2 order. The court below deputed an Advocate Commissioner to inspect the property, who has filed Ext P5 report categorically reporting that the petitioners have constructed a shed in the plaint schedule property. 9. Based on the assertions in Ext P3 application and the findings of the Advocate Commissioner in Ext P5 report, the court below has directed the shed to be removed within seven days, if not, the first respondent would be at liberty to remove the shed under the supervision of the Advocate Commissioner. 10. The Honourable Supreme Court in **Dorab Cawasji Warden vs. Coomi Sorab Warden and others** [1990 KHC 756] in paragraphs 15 and 16 has held as follows: “15. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status 8 OP(C) No.1875 of 2022 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 a higher standard than a prima facie cast 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. 16. 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 or complete or absolute rules, and there may be exceptional circumstances needing action, applying them as pre requisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion”. 9 OP(C) No.1875 of 2022 11. As per the ratio decidendi in the above decision, a Court is empowered to grant a relief of interlocutory mandatory injunction to preserve or restore the statusquo of the last non contested status which preceded the pending controversy, until the final hearing is taken, when the full relief can be granted or compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining, provided a higher prima facie cast is established, to prevent serious injury, and the balance of convenience is in favour of the one seeking relief. 12. In the instant case, it is clearer than crystal, as per Ext P5 report, that a shed has been constructed in the plaint schedule property in flagrant and blatant violation of Ext P2 order of injunction, which is still in full force. This Court has no doubt that the petitioners have flouted Ext P2 order by taking law into their own hands. In the light of the law laid down in the aforecited decision and taking into account the facts and 10 OP(C) No.1875 of 2022 circumstances of the case, I have no hesitation to confirm P7 order, which is the correct course to be followed by the Courts, to uphold the majesty of the Court and the rule of law, if not we would have to live in an anarchic world. The Trial Court has not overstepped its bounds of authority or powers in passing Ext P7 order, warranting interference by this Court under Article 227 of the Constitution of India. The original petition is devoid of any merits and is outrightly dismissed. sd/- sks/27.10.2022 **C.S.DIAS, JUDGE** 11 OP(C) No.1875 of 2022 ## **`APPENDIX OF OP(C) 1875/2022`** ``` PETITIONER EXHIBITS Exhibit P1THE COPY OF THE PLAINT FILED BEFORE THE HONOURABLE MUNSIFF COURT PEERMADE Exhibit P2THE COPY OF THE INTERIM ORDER DATED 12.11.2019 IN IA 685/2019 IN O.S 182/2019 Exhibit P3THE COPY OF THE I.A DATED 2.12.2020 IN 15/2022 IN O.S 182/2019 Exhibit P4THE COPY OF THE OBJECTION FILED BY THE PETITIONER/DEFENDANT IN I.A 15/22 DATED 23.5.2022 Exhibit P5THE COPY OF THE COMMISSION REPORT DATED 12.4.2022 IN I.A16/2022 Exhibit P6THE COPY OF THE EARLIER COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER DATED 4.10.2019 Exhibit7THE CERTIFIED COPY OF THE ORDER DATED 14.6.2022 IN I.A 15 /2022 IN O.S 182/2019 BY THE MUNSIFF COURT PEERMADE Exhibit P8THE CERTIFIED COPY OF THE I.A 1/2022 IN CMA 21/2022 OF THE HONOURABLE SUB JUDGE KATTAPPANA Exhibit P9THE COPY OF THE ORDER OF THE I.A 2/2022 IN CMA 21/2022 DATED 30.8.2022 Exhibit P10THE COPY OF THE ORDER DATED 28.3.2019 IN WP(C) 9564/2019 Exhibit P11THE COPY OF THE APPEAL MEMORANDAM DATED 20.6.2022 IN CMA 20/2022 FILED BEFORE THE HONOURABLE SUB COURT KATTAPPANA Exhibit P12THE COPY OF THE DELAY CONDONATION PETITION DATED 20.6.2022 IN IA 1/2022 FILED BEFORE THE HONOURABLE SUB COURT KATTAPPANA RESPONDENT EXHIBITS Exhibit R1(a)Photographs showing the shed erected by the petitioners inside the plaint schedule Proper. Exhibit R1(c)True copy of the affidavit and petition for appointment of advocate commissioner to conduct local inspection filed by the 1st respondent dated 01.02.2020 Exhibit R1(d)True copy of the commission report dated 30.07.2020 filed by the advocate commissioner in I.A. No. 2/2020 in O.S. No. 182/2019 on the file of the Munsiff ``` 12 OP(C) No.1875 of 2022 ``` Court, Peermade dated 30.07.2020 Exhibit R1(e)True copy of FIR No. 15/2020 of Peruvamthanam Police Station dated 17.01.2020 ``` - `Exhibit R1(f) True copy of the petition seeking police assistance to implement the order in I.A No. 6/2020 in O.S. No.182/2019 on the file of the Munsiff Court, Peermade dateed 01.02.2020` - `Exhibit R1(g) True copy of I.A. No. 9/2021 in O.S. No.182/2019 on the file of the Munsiff Court, Peermade, filed by the 1st respondent dated 07.04.2021` ``` Exhibit R1(h) ``` ``` True copy of the report of the advocate commissioner dated 31.05.2021 in I.A. No. 9/2021 in O.S. No.182/2019 on the file of the Munsiff Court, Peermade dated 31.05.2021 ``` ``` Exhibit R1(i)True copy of the petition filed by the 1st respondent to attach the properties dated 01.09.2021 dated 20.09.2021 ``` ``` Exhibit R1(j) ``` ``` Exhibit R1(k) ``` ``` Exhibit R1(l) ``` ``` Exhibit R1(b) ``` ``` True copy of FIR No. 597 of 2021 registered by Peruvamthanam Police Station dated 08.09.2021 ``` ``` True copy of IDOA No. 3/2021 filed by the workers of the 1st petitioner union before the Industrial Tribunal, Idukki dated 16.09.2021 ``` ``` True copy of the claim statement filed by the 1st petitioner before the Industrial tribunal, Peermade dated 25.11.2021 ``` ``` True copy of FIR No. 102/2022 registered by Peruvamthanam Police Station dated 26.02.2022 ```