Jayakumar and Kumari Selvi v. Dr. Hilur Muhammed and M/S Banaraz Garments Trades (India) Pvt. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 OP(C).No. 4288 of 2011(O) ------------------------IA NO.8971/2011 IN OS NO.811/2011 OF PRINCIPAL MUNSIFF COURT, NEDUMANGAD CMA NO.59/2011 OF SUB COURT, NEDUMANGAD ## PETITIONERS/APPELLANTS/DEFENDANTS ----------------------------------------------------- 1. JAYAKUMAR, AGED 45 YEARS, S/O.ANATHI PERUMAL ACHARY, RESIDING AT UTHRADAM, MYTHRI NAGAR, VENJARAMOODU, THIRUVANANTHAPURAM. 2. KUMARI SELVI, W/O.JAYAKUMAR.A., AGED 36 YEARS, RESIDING AT UTHRADAM, MYTHRI NAGAR, VENJARAMOODU, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------- DR.HILUR MUHAMMED, S/O.SAINUDEEN, AGED 32 YEARS, KUNNUMPURATH VEEDU, ATTINPURAM, PANAVOOR P.O., NEDUMANGAD, THIRUVANANTHAPURAM. 695 568 MANAGING DIRECTOR, M/S.BANARAZ GARMENTS TRADES (INDIA) PVT.LTD. BY ADV. SHRI T.KRISHNANUNNI, SENIOR ADVOCATE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.4288/2011 APPENDIX ## PETITIONER(S) EXHIBITS EXT.P-1 TRUE COPY OF THE PLAINT DATED 25.10.2011 IN O.S.NO. 811/2011 BEFORE THE MUNSIFF'S COURT, NEDUMANGAD. EXT.P-2 TRUE COPY OF THE O.P(CAVEAT) NO.170/2011 BEFORE THE MUNSIFF'S COURT, NEDUMANGAD DATED 22.10.2011 EXT.P-3 TRUE COPY OF THE COMMISSION REPORT DATED 25.10.2011 EXT.P-4 TRUE COPY OF THE I.A.NO.8971/2011 DATED 25.10.2011 IN O.S.NO.811/2011 BEFORE THE MUNSIFF'S COURT, NEDUMANGAD. EXT.P-5 TRUE COPY OF THE RENTAL DEED DATED 9.8.2010. EXT.P-6 TRUE COPY OF THE RENTAL RECEIPT DATED 10.9.2010 EXT.P6(a) TRUE COPY OF THE RENTAL RECEIPT DATED 10.10.2010 EXT.p6(b) TRUE COPY OF THE RENTAL RECEIPT DATED 10.11.2011 EXT.P6(c) TRUE COPY OF THE RENTAL RECEIPT DATED 10.12.2011 EXT.P-7 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 3.11.2011. EXT.P-8 TRUE COPY OF THE ORDER DATED 10.11.2011 IN I.A.NO.8971/2011 OF THE PRINCIPAL MUNSIFF'S COURT, NEDUMANGAD. EXT.P-9 TRUE COPY OF THE C.M.A.NO.59/2011 FILED BEFORE THE SUB COURT, NEDUMANGAD. EXT.P-10 TRUE COPY OF THE ORDER DATED 17.12.2011 IN C.M.A.NO. 59/2011 BY THE SUB COURT, NEDUMANGAD. EXT.P-11 TRUE COPY OF THE JUDGEMENT DATED 7.12.2011 IN O.P(C) NO.3873/2011 RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.4288 of 2011 -------------------------------------Dated this the 23[rd] day of December, 2011.** ## **JUDGMENT** Challenge in this Original Petition is to Ext.P8, order of learned Principal Munsiff, Nedumangad on I.A.No.8971 of 2011 on O.S.No.811 of 2011 directing petitioner to open up the rear and front doors of the shoprooms as confirmed by learned Sub Judge, Nedumangad by Ext.P10, judgment in C.M.A.No.59 of 2011. It is contended by the learned counsel for petitioner that the order/judgment of the courts below are erroneous in that there is no specific finding that respondent continues to be in possession of the shoprooms, not to say about a finding regarding the existence of prima facie case, irreparable loss and injury and balance of convenience which should be the basis for the grant of an order of mandatory injunction. A further contention is that since the suit is merely for prohibitory injunction against forcible eviction the courts below have transgressed the scope of the suit by granting an order of mandatory injunction. According to the learned counsel, the court could not grant a relief by way of interim relief which it cannot grant as a final relief. Reliance is placed on the decisions in **Dorab Cawasji Warden v. Coomi Sorab Warden and others (AIR 1990 SC 867) and Metro Marins and another v. Bonus Watch Co.(P) Ltd. And others ((2004) 7 SCC 478)** . **OP(C)No.4288/2011** 2 2. In response learned Senior Advocate for the respondent has contended that respondent never pleaded that he was dispossessed by petitioners; instead, his plea through out is that he continues to be in possession of the demised shoprooms though there happened to be an untoward incident by obstructing his entry into the shoprooms by locking the doors on the front and rear sides and in such a situation a suit for prohibitory injunction is the proper and effective remedy. In I.A.No.8971 of 2011 temporary mandatory injunction is prayed for to open up the locked doors to remove the block created in respondent enjoying the shoprooms which he continues to be in possession. The interim relief sought for, is not divorced from the circumstances pleaded and prima facie established and the final relief sought for. It is also contended by the learned Senior Advocate that report of the Advocate Commissioner is eloquent declaration that respondent continues to be in possession of the shoprooms in question and in the circumstances it is only just and proper that relief of temporary mandatory injunction is granted. Learned Senior Advocate has placed reliance on the decisions in **Sreedharan Erady v. Sreedharan (1988 (2) KLT 995) and James v. Jaimon James (1998 (1) KLT 233)** . 3. To appreciate the rival contentions it is necessary to refer to the facts of the case in short. It is admitted that the shoprooms in question (I am told, situated on different floors of the building) were given on lease to the respondent as per a lease deed dated 09.08.2010 for eleven (11) months **OP(C)No.4288/2011** 3 stipulating payment of rent at the rate of `60,000/- per month. According to the respondent, even after the expiry of 11 months he continued to be in possession and enjoyment of the shoprooms conducting textile business spending crores of rupees. While so, petitioners attempted to evict him illegally and otherwise than by due process of law with the help of the local police against which he preferred complaints to the superior police authorities. In paragraph 15 of Ext.P1, plaint it is stated that while so, some henchmen of petitioners came to the shoprooms on the early morning on “23.10.2011” escorted by the local Sub Inspector, locked the front and rear doors of the shoprooms and welded the locks along with heavy chain to prevent and obstruct entry to the shoprooms to compel respondent succumb to the terms of petitioners. The staff of respondent informed him about the incident, lately. In paragraph 19 of Ext.P1, plaint, as part of cause of action it is pleaded that cause of action arose on 24.10.2011 (also) when petitioners closed the doors and welded the same. Respondent filed the suit on 25.10.2011 requesting for a decree for permanent prohibitory injunction restraining petitioners, their men and agents from evicting him forcibly, otherwise than by due process of law and from obstructing his peaceful enjoyment and possession of the shoprooms and running business therein. **OP(C)No.4288/2011** 4 4. Along with the suit respondent filed I.A.No.8971 of 2011 for an order of mandatory injunction to direct petitioners open the doors they locked or permit respondent to do so. He also filed I.A.No.8970 of 2011 for an order of temporary injunction to restrain petitioners from evicting him otherwise than by due process of law. 5. Petitioners filed objection to the applications contending that the lease was only for a period of 11 months which expired by 09.07.2011, that rent of the shoprooms was in arrears, respondent failed to pay the electricity charges amounting to around `80,000/- and as he defaulted payment of loan installments to the bank, the latter initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act. Constrained with the above compelling situations, respondent surrendered possession of the shoprooms on the expiry of lease dated 09.08.2010. Keys of the shoprooms were given to the petitioners. They claimed to be in possession of the shoprooms since then. They denied the allegation that with the assistance of local police they locked the shoprooms. 6. Learned Munsiff, having considered the rival contentions and taking into account the report of Advocate Commissioner observed that prima facie, respondent is in possession of the shoprooms and that in such a situation it is necessary to grant the relief prayed for in I.A.No.8971 of 2011. The application was allowed. Learned Sb Judge while deciding C.M.A.No.59 of 2011 **OP(C)No.4288/2011** 5 observed in paragraph 14 of the judgment that the possession (of the shoprooms) is disputed, possession is an important aspect which is relevant not only in civil proceedings but also in determining the existence of a criminal act, possession is determined not by mere control over a property and that other aspects are also to be taken into account. In paragraph 15, learned Sub Judge observed that if respondent was not in possession of the shoprooms there was no likelihood of (petitioners) resorting to such measures to prevent entry and that the presence of movables and fixtures left in the building also points to the possession of “petitioners” (obviously a mistake for “respondent”). In paragraph 16, learned Sub Judge observed that closing the doors of premises in the possession of another person is only an interference in the peaceful enjoyment of possession and that an intrusion into the possession of a person is not dispossession. Observing so, the order of learned Munsiff was confirmed. 7. Now, to the arguments advanced by the learned counsel for petitioner - true that the suit is for a decree for prohibitory injunction against forcible eviction and interference with the possession claimed by respondent in the shoprooms. It is settled position of law that a court is not required to grant something by way of interim relief which it is not to grant by way of final relief. If respondent is not able to show prima facie that he is in possession of the shoprooms, I must say that courts below were not correct in granting a temporary mandatory injunction. **OP(C)No.4288/2011** 6 8. The suit was filed on 25.10.2011. Though in paragraph 15 of the plaint it is stated that petitioners with the help of the local police locked doors of the shoprooms on the early morning on 23.10.2011 it is pointed out by learned Senior Advocate for the respondent that the date mentioned therein is a mistake as is clear from paragraph 19 of the plaint where cause of action is stated to have arisen on 24.10.2011 (also) when petitioners locked the doors. I am inclined to proceed on the basis that according to the respondent, locking of the doors was on 24.10.2011. The above stand gets support from the report of Advocate Commissioner that when he visited the shoprooms on 25.11.2010 (the date of suit) it was revealed that respondent was engaged in business in the shoprooms until evening of 23.10.2011 and a bill dated 23.10.2011 for purchase of textiles from the shop of respondent was also shown to him. (Though that bill is not taken into custody and produced before the court). 9. Though petitioners have a contention that shoprooms were surrendered by the respondent immediately on the expiry of lease by 09.07.2011 they did not produce any document to show their possession of the shoprooms after 09.07.2011. On the other hand what is available is the report of Advocate Commissioner which could prima facie be accepted for the time being, wherein it is stated that respondent was engaged in the business until evening of 23.10.2011 and a bill dated 23.10.2011 for purchase of textiles from the shop was also shown to him. The Advocate Commissioner has also reported that on 25.10.2011 when he peeped into the shoprooms he found mannequins kept **OP(C)No.4288/2011** 7 inside the shoprooms. He also found boards of the textile shop of respondent exhibited on the front of the building. There were about 32 air conditioners installed in the shoprooms. As the doors were locked, Commissioner could not enter the shoprooms. Prima facie, in the absence of better evidence at this stage I am unable to accept the argument of petitioners that they got possession of the shoprooms immediately after 09.07.2011. There is no reason to reject the version of respondent that he was doing business in the shoprooms till the evening of 23.10.2011. Nor is there reason, at this stage to interfere with the concurrent finding entered by the courts below. 10. Then the question is whether merely because doors of the shop rooms were locked by petitioners on 24.10.2010 and entry of respondent to the shoprooms on 24.10.2011 was blocked, it could be said that petitioners have taken possession of the shoprooms? “Possession” means the physical possibility of a person dealing with property as he likes and it also implies some actual power over the object possessed and some amount of will to avail oneself of that power (See **Anies v. Rapai (1986 KLT 1204** ). The Supreme Court in **Ram Pat and others v. State of Haryana ((2009) 7 SCC 614)** in paragraph 35 though, dealing with the right of private defence for protection of property referred to what is “settled possession” and stated that the following circumstances will indicate “settled possession”: “ (i) actual physical possession over a sufficiently long period, **OP(C)No.4288/2011** 8 (ii) possession must be to the knowledge, either express or implied of the owner or without any concealment and which contains an element of animus possendie (sic possidendi), and (iii) process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner.” 11. Having regard to the above proposition of law and the factual situation in the case on hand I am unable to accept the contention of petitioners at this stage that they have taken possession of the shoprooms. Nor could it be said that because respondent is blocked from entering the shoprooms on 24.10.2011 he lost possession . It is only prevention of respondent from enjoyment of the shoprooms. Occasional interference with possession of another does not either amount to “possession” or even ouster of the possessor. 12. Then the next question is whether in the said circumstances even without prayer for mandatory injunction in the suit it was open to the learned Munsiff to grant temporary mandatory injunction. It is with reference to the above that learned counsel on both sides invited my attention to the decisions first above mentioned. The decision in **Dorab Cawasji Warden v. Coomi Sorab Warden and others** (supra) refers to the circumstances in which an order of mandatory injunction could be granted. It is stated in paragraph 14: “(1) The plaintiff should 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. **OP(C)No.4288/2011** 9 (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.” The above principles are reiterated in **Metro Marins and another v.** ## **Bonus Watch Co.(P) Ltd. and another** (supra).” 13. This Court also considered that question in **Koya Haji v.** **Bhaskaran** (supra). Learned Judge referring to the various decisions held that relief of mandatory injunction is granted when the act of opposite party constitutes a perennial trespass – a trespass day in and day out - upon his rights normally and a mandatory injunction is the only appropriate remedy. 14. In this case I referred to the report of the Advocate Commissioner to say that prima facie, contention of respondent that he was doing textile business in the shoprooms until the evening of 23.10.2011 has to be accepted. According to the respondent, he has invested crores of rupees in the business and in the shoprooms textile items worth about Rupees six crores is kept. In the above circumstances, I am inclined to think that the act of petitioners in locking the front and rear doors of the shoprooms is nothing but an attempt to block respondent from enjoyment of the shoprooms which is a perennial trespass - a trespass day and night which is required to be rectified by an order of mandatory injunction. Viewed in that line there is nothing improper in the respondent though the ultimate relief prayed for in the suit is prohibitory injunction to restrain his forcible eviction and interfering with his enjoyment of the **OP(C)No.4288/2011** 10 rooms, asking by way of interim relief an order of mandatory injunction, for, a removal of the block created by closure of doors of the front and rear sides is necessary to enable respondent continue to enjoy the shoprooms which prima facie continue in the possession of respondent. That view gets support from the decision in **James v. Jaimon James** (supra). **Sreedharan Erady v. Sreedharan** (supra). 15. I must also bear in mind the scope of invoking Article 227 of the Constitution of India. In **Shalini Shyam Shetty v. Rajendra Shankar Patil - 2010 (3) KLT SN 86 (Case No.90)** the Supreme Court states that the power under Article 227 of the Constitution is to be exercised to keep the Tribunals and Courts subordinate to it “within the bounds of their authority”. Later, in **Jai Singh and others v. Municipal Corporation of Delhi and another ((2010) 9 SCC 385)** it is held that the supervisory jurisdiction under Article 227 of the Constitution cannot be exercised like a bull in a china shop to correct all errors of judgment of a Court or Tribunal acting within the limits of its jurisdiction and that the correctional jurisdiction can be exercised where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly and liberally act as an appellate court and re-appreciate the evidence. 16. Assuming that courts below have not specifically adverted to existence of a prima facie case, irreparable loss and injury and balance of convenience what is discernible from the decision taken by the courts below is **OP(C)No.4288/2011** 11 that respondent prima facie, is shown in possession and enjoyment of the shoprooms, it is appropriate that he is allowed to continue enjoyment and possession of the shoprooms and for,t the block created by petitioners is to be removed. It otherwise means that respondent has established a prima facie case, if the block is not removed it will result in irreparable loss and injury to the respondent and that balance of convenience is in favour of the respondent. 17. In the light of what I have stated above, no interference is required with the order/judgment under challenge. 18. Learned counsel for petitioners submits that substantial amount is in arrears by way of rent and that respondent is to discharge the huge amount payable by way of electricity charges. Learned Senior Advocate for the respondent in fairness has agreed that whatever amount respondent is legally bound to pay will be paid within a week from this day. That submission is recorded. Respondent shall comply with that undertaking. Original Petition fails. It is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**