OP(C) NO. 793 OF 2022

OP(C) NO. 793 OF 2022 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944 OP(C) NO. 793 OF 2022** **AGAINST THE ORDER/JUDGMENT IN IA 3/2022 IN AS 10/2022 OF ADDITIONAL DISTRICT COURT , KOTTAYAM** ## **PETITIONER/S:** 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 , PIN - 686006 BY ADVS. LIJI.J.VADAKEDOM TOM E. JACOB REXY ELIZABETH THOMAS ## **RESPONDENT/S:** 1 FR. JACOB CHERRANVELIL AGED 65 YEARS VICAR BETHLAHEM CHURCH, PERUMBAIKKAD P.O., PERUMBAIKKADU VILLAGE, PERUMBAIKKATTUSSERY KARA, KOTTAYAMTALUK , PIN – 686006 2 ADV. M.J. MANI AGED 70 YEARS OP(C) NO. 793 OF 2022 2 S/O. JOSEPH, VALIYAVEETTIL HOUSE, PERUMBAIKKAD P.O., PERUMBAIKKADU VILLAGE, PERUMBAIKKATTUSSERY KARA, KOTTAYAM TALUK , PIN - 686006 3 K. O. THOMAS AGED 62 YEARS S/O. THOMMAN OUSEPH, KONDOOR, KANJIRATHINKAL HOUSE, PERUMBAIKKAD P.O., PERUMBAIKKADU VILLAGE, KOTTAYAMTALUK , PIN - 686006 4 T. K. SIMON AGED 64 YEARS S/O. KURIAKOSE, THIRUVILAKKIL HOUSE, THELLAKOM KARA, PEROOR VILLAGE, PERUMBAIKKADU P.O. KOTTAYAM, PIN - 686006 5 K. R. RAJEEV AGED 32 YEARS S/O. RAJAPPAN, KADALIKALAYIL HOUSE, PERUMBAIKKADU P.O., PERUMBAIKKADU VILLAGE, PERUMBAIKKATTUSSERY KARA, KOTTAYAMTALUK , PIN - 686006 BY ADVS. Julian Xavier.J Joseph FIROZ K.ROBIN(F-15) NIRMAL KURIEN EAPEN(K/000151/2022) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 793 OF 2022 3 ## **JUDGMENT** The original petition is filed to direct the Court of the Additional District Judge – IV, Kottayam to consider I.A.No.3/2022 in A.S.No.10/2022 afresh and to dispose of A.S.No.10/2022 within a stipulated time period. The petitioners are the respondents 2 and 3 in the above appeal and the defendants 2 and 3 in O.S.No.90/2015 of the Court of the Munsiff, Ettumanoor. The respondents 1 to 4 in the original petition are the appellants in the above appeal and the plaintiffs in the suit. The 5[th] respondent in the original petition is the 1[st] respondent in the appeal and 1[st] defendant in the suit. The parties are for the sake of convenience referred to as per their status in the original petition. 2. The petitioner's case in brief, shorn of exhaustive pleadings, relevant for the determination of this original petition is; - 2.1. They are the respondents 2 and 3 in OP(C) NO. 793 OF 2022 4 I.A.No.3/2022 in the above appeal, filed by the respondents 1 to 4. The 2[nd] petitioner had filed O.S.No.218/2014 before the Court of the Munsiff, Ettumanoor, claiming that he was the owner in possession of the plaint 'A' schedule property and that plaint 'B' schedule property is a panchayath road passing through the eastern side of the property. The road is sloping from south to north. There is a church situated on the southern side of the road. The respondents 1 to 4 are the officials of the church. The 2[nd] petitioner and other persons residing on both sides of plaint 'B' schedule property have a right to use the road. 2.2. The respondents 2 to 4 filed a written statement, claiming title to plaint 'B' schedule property under three title deeds. They, inter alia, contended that they have permitted the families of both sides of the plaint 'B' schedule property to use the property. But under the cover of the said permission, the 2[nd] petitioner and the other users are not permitted to alter the line of the OP(C) NO. 793 OF 2022 5 plaint 'B' scheduled property. The respondents 1 to 4 have also filed O.S.No.90/2015 before the same Court, against the petitioners and 5[th] respondent, seeking a decree for permanent prohibitory injunction. The Trial Court consolidated and jointly tried the suits namely O.S.No.218/2014 and O.S.No.90/2015 and has passed Ext.P1 common judgment, dismissing O.S.No.90/2015 filed by the respondents 1 to 4 and decreed O.S.No.218/2014 filed by the 2[nd] petitioner, declaring that the plaint 'B' scheduled property is a public road and has restrained the respondents 1 to 4 from obstructing the 2[nd] petitioner's user of plaint 'B' scheduled property. 2.3. After the passing of Ext.P1, the respondents 1 to 4 had filed an application before the Trial Court, to direct the 2[nd] petitioner to maintain 'status quo'. However, the application was dismissed. 2.4. The respondents 1 to 4 then filed two appeals namely A.S.No.9/2022 and 10/2022, challenging Ext.P1 common judgment and decree passed in the suits. The OP(C) NO. 793 OF 2022 6 respondents 1 to 4 had also filed an application to depute an Advocate Commissioner to inspect the plaint 'B' schedule property. The application was allowed and Ext.P3 commission report with a rough sketch was placed on record. Then, the respondents 1 to 4 had filed Ext.P4 application alleging that the petitioners and other persons have committed waste in the plaint 'B' scheduled property. The petitioners had filed Ext.P5 objections to Ext.P4 application. The learned District Judge by Ext.P6 order found that the petitioners have committed waste in plaint 'B' scheduled property and directed the restoration of plaint 'B' schedule property. 2.5. Aggrieved by Ext.P6 said order, the petitioners had filed OP(C) No.560/2022 before this Court, principally, on the ground that the learned District Judge had failed to assess the comparative hardship between the parties, while passing Ext.P6 order. 2.6. This Court, after adverting to the decision in **Dorab Casasji Warden vs. Coomi Sorab Warden and** OP(C) NO. 793 OF 2022 7 **others** [1990 KHC 756], by Ext.P7 judgment, set aside Ext.P6 order and directed the learned District Judge to reconsider Ext.P4 application. But, the learned District Judge has without adverting to the decision and the directions of this Court in Ext.P7 has again passed the impugned Ext.P8 order, directing the respondents to restore petition schedule item no.1 property to its original condition as in Exts.P17, A10 and B1 commission reports, under the supervision of an Advocate Commissioner, and the realisation of the cost for restoration would be subject to the final judgment in the appeal. Ext.P8 is erroneous and wrong and passed in violation to the directions passed by this Court in Ext.P7. Hence, the original petition. 3. Heard; Liji J Vadakkedom, the learned counsel appearing for the petitioners and Sri.Raju Joseph, the learned Senior Counsel appearing for the respondents 1 to 4. 4. The point that arises for consideration in the OP(C) NO. 793 OF 2022 8 original petition is whether there is any error or illegality in Ext.P8 order passed by the learned District Judge. 5. The trial court had by Ext.P1 common judgment decreed O.S.No.218/2014 filed by the 2[nd] petitioner and dismissed O.S.No.90/2015 filed by the respondents 1 to 4. The operative portion of Ext.P1 reads as follows: page 73 a) The plaint B schedule pathway is decalred as a public road. b) A decree of permanent prohibitory injunction is passed restraining the defendants and men under them from obstructing the user of plaint B schedule road by the plaintiff and from making any new constructions therein and also from removing the slabs placed by the plaintiff over the drainage which serves as an access from plaint A schedule property to B schedule road and from changing its nature and lie and from committing any mischief therein. 6. The respondents 1 to 4 had filed an application in O.S.No.90/2014, to direct the petitioners to maintain 'status quo' till they filed the appeals before the District Court. Ext.P3 proves that the petitioners have, subsequent to the passing of the decree and prior to the filing of the appeals committed waste in plaint 'B' OP(C) NO. 793 OF 2022 9 ## scheduled property. 7. A reading of the above extracted portion from Ext.P1 judgment establishes that the Trial Court had only declared that plaint 'B' schedule is a public road and passed a decree restraining the respondents 1 to 4 and their men from obstructing the 2[nd] petitioner from using plaint 'B' scheduled property and further restrained the respondents 1 to 4 from carrying out any construction therein and from removing the slabs placed over the drainage in the properties. 8. Ext.P1 judgment does not confer any right on the 2[nd] petitioner to commit any act of waste or improvement in the plaint 'B' scheduled property. 9. The Honourable Supreme Court in **Dorab Casasji Warden vs. Coomi Sorab Warden and others** 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 quo of the last non contested status OP(C) NO. 793 OF 2022 10 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”. OP(C) NO. 793 OF 2022 11 10. The above ratio decidendi permits the relief of interlocutory mandatory injunction to be granted, 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 can 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, 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. 11. In the instant case Ext.P1 does not confer any right on the 2[nd] petitioner to do any act which is detrimental to the plaint 'B' schedule. But, Ext.P3 proves that 50 steps in plaint 'B' schedule were partially demolished subsequent to the decree and filing of the appeals. It may be a fact that the Trial Court had declined to pass an order directing the parties to maintain 'status quo', but the respondents 1 to 4 had filed the appeal OP(C) NO. 793 OF 2022 12 within the statutory time period. Most importantly, Ext.P1 did not permit the petitioners to take law into their hands and commit waste in plaint 'B' schedule property by demolishing the steps. 12. The learned District Judge, after adverting to the entire facts and circumstances of the case, has found that the comparative hardship in favour of the respondents. Accordingly, the Appellate Court has directed the respondents 1 to 4 to restore the plaint 'B' schedule pathway to its position prior to the decree and the cost of such restoration to be finally decided in the appeal. 13. After bestowing my anxious considerations to the peladings and materials on record, especially Exts.P1, P3, P6, P7 and P8, I am of the definite view that the act of demolishing of the steps and damage caused in plaint 'B' schedule is an act in excess of Ext.P1, which has caused grave injustice and harm to the respondents 1 to 4, who have established and proved an overwhelming prima facie case and that balance of convenience rests in their favour. OP(C) NO. 793 OF 2022 13 Therefore, I am totally inclined to exercise my judicial discretion in favour of the respondents 1 to 4. I do not find any error or illegality in Ext.P8 order, which legally and equitably restores the petition 'B' schedule property to its position prior to the decree. There is no ground made out warranting the exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to set aside Ext.P8 order. Nevertheless, considering the urgency that has been urged by the learned counsel for the petitioners, I leave it to the absolute discretion of the learned District Judge to consider whether A.S.Nos.9/2022 and 10/2022 have to be given any precedence for final hearing over the other older pending cases of the same category. The original petition is dismissed. SD/- ## **C.S.DIAS, JUDGE** rkc/15.06.22 OP(C) NO. 793 OF 2022 14 ## **APPENDIX OF OP(C) 793/2022** PETITIONERS' EXHIBITS |Exhibit P1|THE COPY OF THE COMMON JUDGMENT DATED| |---|---| ||30.11.2021 IN O.S. NO. 218/2014 AND O.S.| ||90/2015 BEFORE THE MUNSIFF COURT,| ||ETTUMANOOR| |Exhibit P2|THE COPY OF THE APPEAL MEMORANDUM IN A.S.| ||10/2022 BEFORE THE ADDITIONAL DISTRICT| ||COURT-IV, 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.| ||10/2022 BEFORE THE ADDITIONAL DISTRICT| ||COURT-IV, KOTTAYAM.| |Exhibit P5|THE COPY OF THE OBJECTION TO I.A. 3/2022| ||IN IN A.S. 10/2022 BEFORE THE ADDITIONAL| ||DISTRICT COURT-IV, KOTTAYAM.| |Exhibit P6|THE COPY OF THE COMMON ORDER DATED| ||5.3.2022 IN I.A. 3/2022 IN A.S. NO.| ||10/2022 BEFORE THE ADDITIONAL DISTRICT| ||COURT-IV, KOTTAYAM| |Exhibit P7|THE COPY OF THE JUDGMENT DATED 22.3.2022| ||IN O.P.(C) NO.560/2022 BEFORE THIS| ||HONOURABLE COURT| |Exhibit P8|THE COPY OF THE ORDER DATED 8.4.2022 IN| ||I.A. NO. 3/2022 IN A.S. NO.10/2022 BEFORE| ||THE<br>ADDITIONAL<br>DISTRICT<br>COURT-IV,| ||KOTTAYAM|