OP(C) No. 560 of 2022 in AS 10/2022 of Additional District Court - IV, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944** **OP(C) NO. 560 OF 2022** **IN AS 10/2022 OF ADDITIONAL DISTRICT COURT - IV,** ## **KOTTAYAM** ## **PETITIONERS:** 1 SUMESH AGED 34 YEARS S/O.KARUNAKARAN, THAKADIKALAYIL(CHERUVUKALAYIL), PERUMBAIKKADU.P.O, PERUMBAIKKADU VILLAGE, KOTTAYAM, PIN-686006. 2 SHIBU SAINUDEEN, AGED 35 YEARS LIYA MANZIL HOUSE, PERUMBAIKADU.P.O, PERUMBAIKKADU VILLAGE, PERUMBAIKKATTUSSERY KARA, KOTTAYAM-686006. BY ADVS. LIJI.J.VADAKEDOM TOM E. JACOB ## **RESPONDENTS:** 1 FR.JACOB CHERRANVELIL VICAR BETHLAHEM CHURCH, PERUKBAIKKAD.P.O, PERUMBAIKKADU VILLAGE, PERUMBAIKKATTUSSERY KARA, KOTTAYAM TALUK, PIN-686006. 2 ADV.M.J.MANI, AGED 70 YEARS S/O.JOSEPH, VALIYAVEETTIL HOUSE, PERUMBAIKKAD.P.O, PERUMBAIKKADU VILLAGE, PERUMBAIKKATTUSSERY KARA, KOTTAYAM TALUK,PIN-686006. ## **OP(C) NO. 560 OF 2022** ..2.. , 3 K.O.THOMAS, AGED 62 YEARS S/O.THOMMAN OUSEPH, KONDOOR, KANJIRATHINKAL HOUSE, PERUMBAIKKAD .P.O, PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK, PIN-686006. 4 T.K.SIMON, AGED 64 YEARS S/O.KURIAKOSE, THIRUVILAKKIL HOUSE, THELLAKOM KARA, PEROOR VILLAGE, PERUMBAIKKADU.P.O,KOTTAYAM686006. 5 K.R.RAJEEV, AGED 32 YEARS S/O.RAJAPPAN, KADALIKALAYIL HOUSE, PERUMBAIKKADU.P.O, PERUMBAIKKADU VILLAGE, PERUMBAIKKATTUSSERY KARA, KOTTAYAM TALUK, PIN-686006. ## **OTHER PRESENT:** SRI. RAJU JOSEPH (SR) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) NO. 560 OF 2022** ..3.. , ## **JUDGMENT** Challenge in this Original Petition, filed under Article 227 of the Constitution of India, is to the order dated 05.03.2022 in I.A.No.3/2022 in A.S.No.10/2022 passed by the Additional District Court – IV, Kottayam. 2. Petitioners are respondents 2 and 3 in the appeal. The appellants are respondents 1 to 4. Respondent No.1 in the appeal is respondent No.5 in the original petition. 3. Petitioner No.2 instituted O.S.No.218/2004 before the Munsiff’s Court, Ettumanoor against respondents 2 to 4 for a permanent prohibitory injunction regarding the plaint ‘B’ schedule property which is described as a way. 4. Respondents 1 to 4 instituted O.S.No.90/2015 against the petitioners and respondent No.5 for declaration and permanent prohibitory injunction **OP(C) NO. 560 OF 2022** **==> picture [18 x 20] intentionally omitted <==** regarding the subject matter in O.S.No.218/2004. 5. The Trial Court jointly tried both the suits and decreed O.S.No.218/2014 in favour of petitioner No.2 declaring that ‘B’ schedule pathway is a public road. The Court also granted a consequential injunction. The Trial Court dismissed O.S.No.90/2015. 6. There were steps on different levels on the plaint ‘B’ chedule way. After the decree, the lie and nature of ‘B’ schedule way was partially changed by demolishing the steps thereon. 7. Respondents 1 to 4 challenged the judgment and decree passed by the Trial Court by filing A.S.Nos.9 and 10 of 2022 before the District Court, Kottayam. The appeals were made over to the Additional District Court -IV, Kottayam. 8. Respondents 1 to 4 filed I.A.Nos.1 and 3 of 2022 in A.S.No.10/2022 alleging that the petitioners and respondent No.5 demolished the steps constructed on the ‘B’ schedule way. They prayed for a prohibitory **OP(C) NO. 560 OF 2022** **==> picture [17 x 20] intentionally omitted <==** injunction restraining the petitioners and others from committing further waste in ‘B’ schedule property. They also prayed for an interim mandatory injunction directing the petitioners and others to restore ‘B’ Schedule property into its original position. The District Court jointly considered the two interlocutory applications and passed Ext.P6 common order dated 05.03.2022. In Ext.P6, the District Court restrained the petitioners and others by way of a prohibitory injunction from destroying the cross situated at the northern end portion of 'B' schedule way, destroying the remaining steps and terrace thereon and altering its nature and lie converting the same as a cartable road. 9. As per order in I.A.No.3/2022, respondents 1 to 4 were permitted to restore 'B' schedule property to its original position as noted in Ext.B17, Ext.A10 and Ext.C1 report under the supervision of an Advocate Commissioner. 10. The order in I.A.No.3/2022 permitting the **OP(C) NO. 560 OF 2022** **==> picture [18 x 21] intentionally omitted <==** respondents to restore the plaint schedule property to its original position is under challenge in this Original Petition. 11. Heard Shri. Liji J. Vadakedom, the learned counsel appearing for the petitioners and Shri. Raju Joseph, the learned Senior Counsel appearing for the respondents. 12. The learned counsel for the petitioners contended that the District Court has not considered the objections raised by them on the touchstone of the principles declared in **Dorab Cawasji Warden v. Coomi Sorab Warden and others** [1990 KHC 756] for granting interim mandatory injunction. 13. Per contra, the learned Senior Counsel contended that the District Court has exhaustively considered the averments placed by both sides in arriving at a finding that the plaint ‘B’ schedule property is to be restored to its original position so as to maintain the subject matter in tact during the pendency of the appeal. **OP(C) NO. 560 OF 2022** ..7.. , 14. The learned counsel for the petitioners contended that the District Court has not considered the comparative hardship that would be caused to the petitioners by denial of right of enjoyment of ‘B’ schedule way while granting the relief of interim mandatory injunction. The learned counsel further contended that the District Court lost sight of the settled principles that govern granting of interim mandatory injunction. In **Dorab Cawasji Warden v. Coomi Sorab Warden and others** (Supra), the Apex Court, on the principles to be followed while granting interim mandatory injunction, held thus:- “15. The relief of interlocutory mandatory injunctions are thus 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 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, **OP(C) NO. 560 OF 2022** ..8.. , 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. 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 nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” 15. The District Court, while granting the relief of interim mandatory injunction in favour of the respondents, has not meticulously analysed the pleadings set up by the parties on the touchstone of the principles enunciated by the Apex Court in **Dorab Cawasji Warden v. Coomi Sorab Warden and others** (Supra) **.** This has caused prejudice to the petitioners. **OP(C) NO. 560 OF 2022** ..9.. , 16. Resultanly, this Court is of the view that I.A.No.3/2022 requires fresh consideration. Therefore, the order dated 05.03.2022 in I.A.No. 3/2022 is set aside. The Additional District Court – IV, Kottayam shall consider I.A.No.3/2022 afresh in the light of the principles discussed above. The Court below shall dispose of I.A.No.3/2022 on or before 28.03.2022. The Court below is at liberty to seek further time, if required. The Original Petition is disposed of accordingly. **Sd/-** **K. BABU, JUDGE** kkj **OP(C) NO. 560 OF 2022** ..10.. , ## **APPENDIX OF OP(C) 560/2022** PETITIONER EXHIBITS Exhibit P1 THE COPY OF THE COMMON JUDGMENT DATED 30.11.2021 IN O.S.NO.218/2014 AND O.S.NO.90/2015 BEFORE THE MUNSIFF COURT, ETTUMANNOOR Exhibit P2 THE COPY OF THE APPEAL MEMORANDUM IN A.S.10/22 BEFORE THE DISTRICT COURT,KOTTAYAM. Exhibit P3 THE COPY OF THE COMMISSION REPORT DATED 28.1.2022 ALONG WITH THE ROUGH SKETCH ATTACHED IN A.S.10/2022 BEFORE THE ADDITIONAL DISTRICT COURT-IV, KOTTAYAM. Exhibit P4 THE COPY OF THE I.A.3/2022 IN A.S.NO.10/2022 BEFORE THE ADDITIONAL DISTRICT COURT-IV, KOTTAYAM. Exhibit P5 THE COPY OF THE OBJECTION TO I.A.NO.3/2022 IN THE A.S.10/2022 BEFORE THE ADDITIONAL DISTRICT COURTIV, KOTTAYAM. Exhibit P6 THE COPY OF THE COMMON ORDER DATED 5.3.2022 IN I.A.NO.3/2022 IN A.S.NO.10/2022 BEFORE THE ADDITIONAL DISTRICT COURT-IV, KOTTAYAM.