Lucy Varghese v. Komalakumari and M.R. Rajan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY ,THE 25TH DAY OF OCTOBER 2018 / 3RD KARTHIKA, 1940** **OP(C).No. 1111 of 2018** **AGAINST THE ORDER IN I.A.NOS. 731/2017 AND 1853/2017 IN O.S NO. 151/2017 of MUNSIFF COURT,CHENGANNUR** ## **PETITIONER:** **LUCY VARGHESE AGED 50, W/O LATE P.P.VARGHESE PANIKKAYIL HOUSE, ANGADICKAL MURI CHENGANNUR VILLAGE ALAPPUZHA DISTRICT** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENTS:** **1.KOMALAKUMARI, AGED 62, MALAYIL PARAMPIL KEEZHCHERIMEL MURI, CHENGANNUR VILLAGE ALAPPUZHA DISTRICT 689 121** **2. M.R.RAJAN, AGED 57, S/O LATE RAMAKRISHNA PILLAI MALAYIL PARAMPIL, KEEZHCHERIMEL MURI CHENGANNUR VILLAGE, ALAPPUZHA DISTRICT REP. BY HIS POWER OF ATTORNEY HOLDER RAJI R. W/O AMBADI LAL, RADHA BHAVAN VALLAMKULAM P.O., ERAVIPEROOR, THIRUVALLA PATHANAMTHITTA DISTRICT - 689 121** **BY ADV. SRI.K.SHAJ** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(C)No.1111/2018 2 ## **JUDGMENT** This original petition is filed under Article 227 of the Constitution of India by the plaintiff in O.S.No.151 of 2017, on the file of the Munsiff Court, Chengannur. 2. The petitioner herein filed O.S.No.151 of 2017, on the file of the Munsiff Court, Chengannur, seeking injunction, restraining respondents from interfering with the peaceful conduct of the petitioner's business in a shop room and restraining respondents from dispossessing her forcibly from the shop room and seeking other reliefs. 3. The facts relevant for consideration in this petition is as follows : Along with the suit, I.A.No.731 of 2017 was filed by the plaintiff herein for ad interim prohibitory injunction. Thereafter I.A.No.1853 of 2017 was filed, pending consideration of the above suit for an interim mandatory injunction to hand over the key of the plaint schedule shop room bearing door no.212 situated in Chengannur. The O.P.(C)No.1111/2018 3 said application was allowed by the trial court, which was set aside by the appellate court. Hence this petition. 4. It is the case of the petitioner therein that the petitioner is a widow now and earlier her husband about 28 years back took on lease of the plaint schedule property and he was conducting business therein till 20.06.2014, on which date he died. Thereafter the petitioner herein entered into a lease agreement with the second respondent on 01.11.2014, agreeing to pay a monthly rent of Rs.3,000/-. According to the petitioner, she was conducting business therein and was deriving income. It is also the case of the petitioner that her elder son is having some mental problem and the money required for the treatment was also derived from the business therein. It is also the case of the petitioner that in the year 2016, the rent agreement was further renewed for a period of 11 months and it was in force till November 2017. 5. It is the further case that while she was continuing in possession, during the extended lease period, the first respondent who used to receive the rent, after receiving the rent for the month of May asked the petitioner to vacate the shop room and to remove the eggs O.P.(C)No.1111/2018 4 which was kept therein for the business purpose. Thereafter there was threatening and also there was attempt of manhandling on her mentally deranged son. It is the further case of the petitioner that the keys kept with the petitioner was forcibly taken by the first respondent. On the next day she reopened the shop i.e 8.5.2017 using a spare key available with her. Thus, the police came and the spare keys was also forcibly taken by the police inspector at the instance of the respondent. Thereafter shop room was locked. It is the case of the petitioner that police unauthorizedly seized the keys. As the shop room has been locked by the respondents and as the keys were forcibly taken away, she is entitled for a mandatory injunction. Respondent appeared and denied the allegations. The case of the respondents is that at first there was a prayer for injunction alleging the possession is with her. After about six months, an application was filed for an interim mandatory injunction directing to handover the key/possession which is not permissible under law. It is the positive case of the respondents that as per Ext.B1 document, the possession was surrendered, that also in the month of December i.e. on 17.12.2016. Thereafter they are not having O.P.(C)No.1111/2018 5 ## any possession. The trial court after appreciating the materials, allowed ## both I.A.s and ordered as follows: 1. The respondents or persons under them are hereby restrained from forcibly dispossessing the plaint schedule shop room and to interfere with the petitioner's peaceful conduct of business therein and from committing any waste or mischief, till the disposal of the suit. 2. The second respondent is hereby directed to handover the key of the petition schedule shop room within 10 days from the date of this order so as to enable the petitioner to resume the business there failing which the petitioner can have recourse to the process of court for getting possession over the same. 6. Aggrieved by the said order, the second respondent herein filed CMA 3/2018 before the Sub Court, Chengannur. After a detailed hearing, the court below found that the plaintiff is not entitled to the temporary and mandatory injunction. Hence interfered with the order of the trial court and the appeals were allowed and the common impugned order was set aside. 7. When the matter came up before this court, both counsel O.P.(C)No.1111/2018 6 appearing for the petitioner as well as the second respondent submitted in detail. 8. The submission of the learned counsel for the petitioner is that a strong prima facie case is made out in this case. As such the court below should not have interfered with it. The balance of convenience as well as irreparable injury aspects were considered by the trial court in its right perspective. It is the further submission that the appellate court failed to consider the documents produced by the petitioner to substantiate their case. It is also the submission of the learned counsel that the finding of the lower court in respect of possession and the law regarding allowing mandatory injunction is also incorrect. 9. The learned counsel in support of his argument submitted that in Halsbury's Laws of England, Fourth Edition Reissue Volume 24 in page 446 it is stated that a mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court ought to be decided at once, or if O.P.(C)No.1111/2018 7 the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application. 10. It is highlighted that here is a case where such a situation was therein and the court acted within its jurisdiction and powers. It is the submission that when the trail court found that such a situation is therein and the plaintiff is entitled for a mandatory injunction, interference by the appellate court is also not correct. It is submitted that the Hon'ble Apex Court in **Mohd. Mehtab Khan and others v. Khushnuma Ibrahim Khan and others [(2013) 9 SCC 221]** held that interference by the appellate court is not permissible unless exercise of discretion by the trial court is palpably incorrect or untenable. It is the further submission that if the view taken by the trial court is a possible view, the same is not liable to be interfered with by the appellate court. O.P.(C)No.1111/2018 8 11. To show the time tested legal position, the counsel also highlighted **Rasul Karim and another v. Pirubhai Amirbhai** decided by the Bombay High Court on 1914 January 16 reported in ILR Bombay series Vol. XXXVIII page 381. 12. The counsel for the second respondent submitted before this court that in respect of interim mandatory injunction, the law laid by precedence is clear. In the decision in **Rama v. Mangilal [1973 JLJ 914]** it is stated that a mandatory injunction of a temporary nature should be granted very sparingly and if granted should be only for the restoration of the status quo as it stood on the date of initiation of the proceedings and not earlier. Even if on the basis of certain English rulings stated in Halsbury Volume 21 Art.760 (Third Edn.) a mandatory injunction of a temporary nature can be made for restoring the status quo of a period earlier than the initiation of the proceedings, it can be done only where before the commencement of the suite the defendant has in spite of being cautioned of the possibility of a suit and motion for temporary injunction, tries to over-reach the Court by hurrying up so as to forestall the plaintiff. Such a situation is not herein. As per the O.P.(C)No.1111/2018 9 suit itself, the dispossession was on 7th or on 8th May 2017. According to the plaintiff, they were dispossessed and the suit filed only on 22.05.2017. Then also they got no case that the possession was already taken away and a mandatory injunction should be therein. After a passage of five or six months, the I.A. on which the impugned order by the trial court passed was filed and order obtained. That was rightly set aside by the appellate court. 13. To buttress his contention, the counsel also brought to the notice of this court the following decisions : 1. Jai Singh and Others v. Municipal Corporation of Delhi and Others[(2010) 9 SCC 385]. 2. Dorab Cawasji Warden v. Coomi Sorab Warden and others [( 1990 (2) SCC 117] 3. Nandan Pictures Ltd. v. Art Pictures Ltd. And Ors. ( AIR 1956 Cal 428) 4. Kishore Kumar Khaitan and Anr. v. Praveen Kumar Singh ([( 2006) 3 SCC 312] 5. Metro Marins and Ors. v. Bonus Watch Co. Pvt. Ltd. and Ors. [( 2004) 7 SCC 478] 6. Rama v. Mangilal ( reported in O.P.(C)No.1111/2018 10 MANU/MP/0246/1971) 14. Now, in this case, after going through the facts, it can be seen that the appellate court heavily relied upon Ext.B1, whereas the plaintiff is relying upon a complaint made by the defendant before the Police as well as other materials as highlighted by the trial court. It is the case of the plaintiff that in 2016, the lease extended for a further period of 11 months and the lease period was till November, 2017. The case of the plaintiff is that Ext.B1 is a forged one. A peculiar situation is herein. The defendant got a case that even possession is handed over to third parties, surely, pending the suit, that also in respect of an immovable property. This court is not re-appreciating the materials at this stage, but only searching how far the plaintiff succeeded to make out a prima facie case for the grant of a mandatory injunction. It is a settled position that mandatory injunction can be granted only when there is special circumstances. Here is a special circumstance. Here is a case where there is allegation of intervention of Police. Dispute is purely civil nature. But there is delay in moving the application for interim mandatory injunction. O.P.(C)No.1111/2018 11 15. It is relevant to note that the stand of the respondent herein is that he was having possession on the date of filing the suit. He is also having a stand that by the impugned orders in fact the court granted a larger relief than claimed in the main suit. Peculiar circumstance warrants peculiar orders to do justice. Keeping all these aspect in mind, the order of the trial court in I.A.Nos.731/2017 and 1853/2017 are modified as follows by setting aside the appellate court judgment. 16. The direction that the respondents or persons under them are hereby restrained from forcibly dispossessing the plaint schedule shop room and to interfere with the petitioner's peaceful conduct of business therein and from committing any waste or mischief till the disposal of the suit is hereby set aside. The second direction that the second respondent is hereby directed to handover the key of the petition schedule shop room within 10 days from the date of this order, so as to enable the petitioner to resume the business there failing which the petitioner can have recourse to the process of court for getting possession over the same is modified to the effect that after keeping O.P.(C)No.1111/2018 12 status quo in respect of the shop as on the date of the suit, close the same and deposit the key before the trial court within ten days from the date of this judgment. The period from the date of handing over of the key till the disposal of suit shall be treated as non-existent ( dies non) for the purpose of claiming rent or payment of rent as the case may be. On the date of judgment, the key shall be handed over to the party entitled for the same, as per the judgment and decree. With the above direction and modification, this original petition is disposed of. **Sd/-** ## **K.P.JYOTHINDRANATH** **JUDGE** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE PLAINT IN O.S NO.151/2017. EXHIBIT P2 COPY OF THE I.A NO.731/17 FILED BY THE PETITIONER IN O.S NO.151/2017. EXHIBIT P3 COPY OF I.A NO.1853/17 FILED BY THE PETITIONER IN O.S NO.151/2017.** 13 O.P.(C)No.1111/2018 **EXHIBIT P4** **COPY OF PROFESSIONAL TAX BILL DATED 17.01.2017 ISSUED BY THE CHENGANNUR MUNICIPALITY.** **EXHIBIT P5** **COPY OF RECEIPT DATED 17.01.2017 ISSUED BY THE CHENGANNUR MUNICIPALITY.** **EXHIBIT P6** **COPY OF RECEIPT OF F.I.R IN CRIME NO.923/17 ALONG WITH F.I.S (COMPLAINT)** **EXHIBIT P7 COPY OF COMMON ORDER DATED 03.02.2018 PASSED BY THE MUNSIFF COURT, CHENGANNUR IN I.A NO.731/17 AND I.A NO.1853/17.** **EXHIBIT P8** **COPY OF COMMON JUDGMENT DATED 06-03-2018 PASSED BY THE SUB COURT, CHENGANNUR IN C.M.A NO.3/2018 AND C.M.A.NO.4/2018.**