Pradeep Kumar and SREEDEVI.V.G v Vikraman Nair and Prasanna Kumari

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 OP(C) NO. 792 OF 2020 ``` ``` AGAINST THE ORDER/JUDGMENT IN IA 5/2020 IN OS 256/2019 OF ``` ## **`MUNSIFF COURT, CHANGANACHERRY`** ## **`PETITIONER/S:`** ``` 1PRADEEP KUMAR AGED 46 YEARS S/O.PARAMESWARAN NAIR, OTTAPLACKAL HOUSE, PALLIKKACHIRA.P.O, PAIPADU VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN- 686537 2SREEDEVI.V.G AGED 39 YEARS W/O.PRADEEP KUMAR, OTTAPLACKAL HOUSE, PALLIKKACHIRA.P.O, PAIPADU VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN- 686537 ``` ``` BY ADV M.P.MADHAVANKUTTY ``` ## **`RESPONDENT/S:`** ``` 1VIKRAMAN NAIR OTTAPLACKAL HOUSE, PALLIKKACHIRA.P.O, PAIPADU VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PN-686537 2PRASANNA KUMARI W/O.VIKRAMAN NAIR, OTTAPLACKAL HOUSE, PALLIKKACHIRA.P.O, PAIPADU VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN- 686537 ``` ``` BY ADV S.JAYAKRISHNAN SUKUMARAN NAIR ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.792 of 2020 ## **C.S DIAS,J.** **--------------------------OP(C) No.792 of 2020** **----------------------------Dated this the 11[th] day of August, 2022.** ## **JUDGMENT** The original petition is filed to set aside the order in IA No.5/2020 in OS No.256/2019 (Ext P18) of the Court of the Munsiff, Changanacherry. 2. The skeletal facts, relevant for the determination of the original petition, are: the petitioners are the plaintiffs in the above suit, which is filed against the respondents, for a decree of permanent prohibitory injunction. The petitioners are husband and wife. They are the co-owners of plaint schedule item No.1 property described in the plaint. Plaint schedule item No.2 property belongs to the second petitioner. Plaint schedule item No.3 property, situated on the western side of plaint schedule item Nos. 1 and 2 properties, belongs to the respondents. On the western boundary of plaint schedule item No.3 property, there is a 3 OP(C) No.792 of 2020 Panchayath road. The only road leading from the above Panchayath road towards the plaint schedule item Nos. 1 and 2 properties is through plaint schedule item No.4 property (in short, hereinafter, referred to as item No.). Item No.4 has an approximate breadth of 3 meters and an approximate length of 50 meters. Item No.4 is for the absolute beneficial enjoyment of item Nos. 1 and 2 properties. The respondents made an attempt to obstruct the vehicular traffic through item No.4 property compelling the petitioners to file the above suit. They also moved an application for an order of temporary injunction. The court below, by Ext P3 order, passed an ad-interim order of injunction restraining the respondents from committing any mischief over item No.4 property. The petitioners took out an Advocate Commissioner, who has filed Ext P5 report clearing showing that item No.4 property has an approximate length of 75 feet and breadth of 9 feet. The first respondent has filed Ext P6 written statement in the suit. Subsequently, the second respondent has instituted OS 4 OP(C) No.792 of 2020 No.271/2019 before the same Court, against the petitioners, seeking a decree of permanent prohibitory injunction. The petitioners have filed Ext P8 written statement in the said suit. Thereafter, the petitioners filed an application for consolidation and joint trial of both the suits. In the commission report filed in the later suit also, the Advocate Commissioner has reported that the pathway has a breadth of 8.8 feet and a length of 80 feet. In the meantime, the first respondent violated Ext P3 order of injunction by unloading rubbles in item No.4 property. Accordingly, the petitioners filed Ext P13 prosecution application under Order XXXIX Rule 2A of the Code of Civil Procedure against the respondents. Again, the petitioners filed Ext P14 application to appoint an Advocate Commissioner to ascertain the subsequent status of item No.4 property. The Advocate Commissioner has filed Ext P15 report, inter alia, reporting that a new retaining wall has been constructed along item No.4 property. Hence, the petitioners filed Ext P16 application to depute an Advocate Commissioner to demolish the 5 OP(C) No.792 of 2020 retaining wall with the aid of the employees of the petitioners and restore the status-quo ante of item No.4 property. The said application was opposed by the respondents who filed Ext P17 objection. The court below, by the impugned Ext P18 order, has dismissed Ext P16 application principally on the ground that the issue can be decided only after evidence is let in. Ext P18 is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.M.P Madhavankutty, the learned counsel appearing for the petitioners and Sri.S.Jayakrishnan Sukumaran Nair, the learned counsel appearing for the respondents. 4. The point is whether there is an error in Ext P18 order. 5. It is on record that the court below had by Ext P3 order granted an ad-interim order of injunction restraining the respondents from committing any waste or mischief in item No.4 property. The Advocate Commissioner, by Ext P5 report, has categorically found that the pathway has a length of 75 feet and breadth of 9 6 OP(C) No.792 of 2020 feet. Thereafter, it is evident from Ext P15 report that the breadth of the pathway has been reduced by constructing a retaining wall. It was in the above background that the petitioners sought for demolition of the retaining wall, as it in violation of Ext P3 order of injunction. 6. The Honourable Supreme Court in **Dorab Casasji 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 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: 7 OP(C) No.792 of 2020 (1) The plaintiff has a strong case for trial. That is, it shall be 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 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”. 7. The above ratio decidendi permits the relief of interlocutory mandatory injunction to be granted, to preserve/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 8 OP(C) No.792 of 2020 the party complaining, provided a higher prima facie case is established, to prevent serious injury, and irreparable loss being caused to the party who seeks the relief. 8. In the case at hand, Exts P5 report clearly substantiates the status-quo as on the last non-contested status of the controversy. Whereas, Ext P15 shows the subsequent status. 9. It is undisputed by both sides that the retaining wall was constructed in violation of Ext P3 order, while it was in full force. 10. In the above legal and factual matrix, especially when the last non-contested status has been disturbed by the construction, I am of the view that the court below has to be directed to reconsider Ext P16 application, following the ratio laid down by the Hon’ble Supreme Court in the aforecited decision. In the result, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, I allow the original petition in the following manner: 9 OP(C) No.792 of 2020 - (i) Ext P18 order is set aside. (ii) The court below is directed to re-consider Ext P16 application in the light of the law laid down by the Hon’ble Supreme Court in the aforecited decision after adverting to the materials available on record and Ext P17 objection filed by the respondents. (iii) The court below shall consider and dispose of Ext P16 application, in accordance with law, as expeditiously as possible, at any rate within a period of one month from the date of receipt of a certified copy of the judgment. sd/- sks/11.8.2022 **C.S.DIAS, JUDGE** 10 OP(C) No.792 of 2020 ## **`APPENDIX OF OP(C) 792/2020`** - `PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAIN IN OS NO.256/2019 BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY` - `EXHIBIT P2 TRUE COPY OF THE INJUNCTION APPLICATION FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, CHANGANACHERRY` - `EXHIBIT P3 TRUE COPY OF THE TEMPORARY INJUNCTION GRANTED BY THE MUNSIFF'S COURT, CHANGANACHERRY IN OS NO.256/2019 DATED 09.08.2019` - `EXHIBIT P4 TRUE COPY OF THE COMMISSION APPLICATION DATED 09.08.2019 FILED BEFORE THE CHANGANACHERRY MUNSIFF'S COURT` - `EXHIBIT P5 TRUE COPY OF THE REPORT AND PLAN DATED 24.08.2019 SUBMITTED BEFORE THE CHANGANACHERRY MUNSIFF'S COURT` - `EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.256/2019` - `EXHIBIT P7 TRUE COPY OF THE PLAINT IN OS NO.271/2019 FILED BY THE 2ND RESPONDENT BEFORE THE CHANGANACHERRY MUNSIFF'S COURT` - `EXHIBIT P8 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.271/2019 FILED BY THE PETITIONERS BEFORE THE CHANGANACHERRY MUNSIFF'S COURT DATED 13.01.2020` - `EXHIBIT P9 TRUE COPY OF THE IMPLEADING PETITION BEARING IA NO.1206/2019 IN OS NO.256/2019 DATED 18.09.2019 BEFORE THE CHANGANACHERRY MUNSIFF'S COURT DATED 18.09.2019` - `EXHIBIT P10 TRUE COPY OF THE JOINT TRIAL PETITION IN OS NO.271/2019 DATED 18.09.2019 BEFORE THE CHANGANACHERRY MUNSIFF'S COURT` - `EXHIBIT P11 TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN OS NO.271/2019 IN IA NO.1056/2019 BEFORE THE CHANGANACHERRY MUNSIFF'S COURT DATED 05.09.2019` - `EXHIBIT P12 TRUE COPY OF THE OBJECTION DATED 24.08.2019 BEFORE THE CHANGANACHERRY MUNSIFF'S COURT` - `EXHIBIT P13 TRUE COPY OF THE PROSECUTION APPLICATION IN OS NO.256/2019 BEFORE THE` 11 OP(C) No.792 of 2020 ``` CHANGANANCHERRY MUNSIFF'S COURT ``` ``` EXHIBIT P14TRUE COPY OF THE COMMISSION APPLICATION DATED 04.01.2020 FILED BEFORE THE CHANGANACHERRY MUNSIFF'S COURT EXHIBIT P15TRUE COPY OF THE REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 13.01.2020 BEFORE THE CHANGANACHERRY MUNSIFF'S COURT EXHIBIT P16TRUE COPY OF THE INTERLOCUTORY APPLICATION IN OS NO.256/2019 DATED 23.01.2020 BEFORE THE CHANGANACHERRY MUNSIFF'S COURT EXHIBIT P17TRUE COPY OF THE OBJECTION DATED 27.01.2020 TO THE INTERLOCUTORY APPLICATION FOR APPOINTING AN ADVOCATE COMMISSIONER BEFORE THE CHANGANACHERRY MUNSIFF'S COURT EXHIBIT P18TRUE COPY OF THE ORDER DATED 24.02.2020 IN IA NO.5/2020 BEFORE THE CHANGANACHERRY MUNSIFF'S COURT ``` 12 OP(C) No.792 of 2020