Reghuvaran and Pankajakshy v. Jayesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **OP(C).No.1276 OF 2020** **AGAINST EXT.P8 ORDER IN I.A.NO.6/2020 IN OS 336/2020 OF ADDITIONAL MUNSIFF COURT,CHERTHALA** ## **PETITIONERS:** **1 REGHUVARAN, AGED 73 YEARS, S/O. PURUSHOTHAMAN, AMBATTU NIKARTHIL, THAIKATTUSSERY VILLAGE, THAIKATTUSSERY P.O, CHERTHALA - 688528 2 PANKAJAKSHY, AGED 60 YEARS W/O. REGHUVARAN, AMBATTU NIKARTHIL, THAIKATTUSSERY VILLAGE, THAIKATTUSSERY P.O, CHERTHALA-688 528 BY ADVS. SRI.J.OM PRAKASH SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT SRI.T.G.MANOJ SRI.T.G.SANTHOSH SRI.T.G.MAHESH SHRI.T.S.BHARATH KRISHNA SHRI.ADHEEP VIJAY** ## **RESPONDENT/1ST DEFENDANT:** ## **JAYESH** **AGED 41 YEARS S/O.RAMESAN, MANJAVANA CHIRAYIL, THAIKATTUSSERY VILLAGE, THAIKATTUSSERY P.O, CHERTHALA-688 528** ## **ADV. SRI.ROY CHACKO** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03.11.2020, THE COURT ON 05.11.2020 DELIVERED THE FOLLOWING:** O.P.(C) No.1276/2020 2 ## **R.NARAYANA PISHARADI, J** ************************ O.P.(C) No.1276 of 2020 ----------------------------------------------Dated this the 5[th] day of November, 2020 ## **J U D G M E N T** The petitioners are the plaintiffs and the respondent is the first defendant in the suit O.S.No.336/2020 on the file of the Additional Munsiff's Court, Cherthala. 2. The suit is instituted for granting a decree of declaration that the plaintiffs and the members of their family have got right of easement by prescription over the property (way) shown as item No.10 in the plaint schedule and also a decree of prohibitory injunction restraining the defendants from committing any act causing obstruction to the exercise of such right by the plaintiffs. 3. The suit was instituted on 08.07.2020. Along with the suit, the plaintiffs filed an application in the trial court as I.A. No.1/2020 for granting an order of temporary injunction to O.P.(C) No.1276/2020 3 restrain the defendants from causing any obstruction to the vehicular traffic through the diputed way. The plaintiffs also filed an application as I.A.No.2/2020 in the trial court for appointment of a commission to inspect the property. 4. As per Ext.P10 order dated 08.07.2020 in I.A.No.1/2020, the trial court directed the defendants to maintain status quo regarding the plaint item No.10 property as seen by the Advocate Commissioner on that date. The trial court also directed the plaintiffs to comply with the provisions contained in Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 (for short 'the Code') and issued urgent notice to the defendants in the application for temporary injunction. 5. On 06.08.2020, the plaintiffs filed an application as I.A. No. 06/2020 (Ext.P5) in the trial court against the first defendant, praying that the gate installed by the first defendant on 10.07.2020 across the way described in plaint schedule item No.8 may be ordered to be removed and the status quo as on 08.07.2020 with regard to the way described in plaint schedule item No.10 may be restored. O.P.(C) No.1276/2020 4 6. The first defendant filed objection to Ext.P5 application raising various contentions. 7. As per Ext.P8 order dated 14.08.2020, the trial court dismissed Ext.P5 application. 8. The plaintiffs have filed this original petition under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P8 order. 9. Heard the learned counsel for the petitioners and also the respondent. 10. Ext.P10 order dated 08.07.2020 passed by the trial court, in the application for temporary injunction filed by the plaintiffs, reads as follows: _“Respondents are directed to maintain status quo regarding the plaint item No.10 property as seen by the Advocate Commissioner today. Comply order 39 Rule 3. Issue urgent notice to the respondents to 24.07.2020.”_ 11. The Advocate Commissioner had inspected the property at 14:30 hours on 08.07.2020 in the presence of the first defendant. Ext.P3 is the copy of the report of the O.P.(C) No.1276/2020 5 commissioner. Ext.P3 report shows that, when the commissioner inspected the property on 08.07.2020, there was a folding type gate across the plaint schedule item No.10 way and there was an old lock on that gate. The gate was in an open condition at the time of inspection of the property by the Advocate Commissioner. 12. Ext.P4 is the copy of the report which was filed by the commissioner after inspection of the property on 10.07.2020. Ext.P4 report shows that when the commissioner inspected the property on 10.07.2020, it was found that the folding type gate was closed and there was a new lock on it. 13. The plea of the plaintiffs is that, the first defendant, in violation of Ext.P10 order, installed the gate in the disputed way and closed the gate with a new lock. 14. The relevant portion of Ext.P8 order, by which the trial court dismissed Ext.P5 application, reads as follows: _“The notice to the first respondent in IA No.1 of 2020 is reported to be served through his wife on 10.07.2020 at 5 pm. The notice to second respondent therein is returned unserved. Pertinently, the notice on I.A.No.1 of 2020 with copy of order is served to the first respondent at 5 pm on_ O.P.(C) No.1276/2020 6 _10.07.2020. Generally, an order of injunction would take effect only when it is communicated. In the present case, the order of status quo will take effect only from when it is communicated to the respondent. It is seen communicated on 10.07.2020 at 5 pm. Hence, it cannot be held that status quo as seen by the Advocate Commissioner on 08.07.2020 was violated by the respondent.”_ 15. The aforesaid passage in Ext.P8 order would show that there was dispute between the parties before the trial court with regard to the date of communication of Ext.P10 order to the first defendant. It is only before this Court, the petitioners/plaintiffs produced relevant documents to show that the order had been communicated to the first defendant on 09.07.2020. No such document was produced before the trial court. The finding made by the trial court with regard to the date of communication of Ext.P10 order to the first defendant is based on the materials which were available before that court. In such circumstances, Ext.P8 order cannot be found to be arbitrary, capricious or perverse, warranting interference by this Court in exercise of its power under Article 227 of the Constitution of India. O.P.(C) No.1276/2020 7 16. There is also another reason to decline interference with Ext.P8 order by this Court. Ext.P10 order passed by the trial court to maintain status quo was with regard to the property described in plaint item No.10. The property, the description of which is given in plaint schedule item No.10, is a way. No gate or other structures are shown or described in plaint schedule item No.10. Therefore, strictly speaking, it cannot be found that the first defendant has committed any act in violation of Ext.P10 order because the plaintiffs have no case that he has made any alteration or change to the nature and lie of the disputed way. It is pertinent here to note that the trial court had not granted an order of temporary injunction as prayed for by the plaintiffs and it had granted only an order to maintain status quo with regard to the property described in plaint schedule item No.10. 17. The expression 'status quo' is undoubtedly a term of ambiguity and at times gives rise to doubt and difficulty. According to the ordinary legal connotation, the term 'status quo' implies the existing state of things at any given point of time (See **Bharat Coking Coal Limited v. State of Bihar : AIR** O.P.(C) No.1276/2020 8 ## **1988 SC 127** ). 18. In the instant case, at the time of passing Ext.P10 order, the report of the commissioner was not before the trial court. Though the commissioner inspected the property on 08.07.2020, Ext.P3 report of inspection was filed in the trial court only on 04.08.2020 (The date of Ext.P3 is 04.08.2020). Therefore, it is evident that Ext.P10 order was passed by the trial court without knowing what was the status quo. Passing such vague orders of status quo does not advance the cause of justice. 19. Moreover, the prayer made in Ext.P5 application is for removal of the gate alleged to have been installed on 10.07.2020 by the first defendant across the disputed way. The gate was there in the property even on 08.07.2020. The gate was not one installed by the first defendant on 10.07.2020. Therefore, the prayer made by the plaintiffs for removal of the gate could not have been allowed by the trial court. If at all the entire allegations made by the plaintiffs were true, the proper relief which should have been sought by them was for issuing a direction to the first defendant to keep the gate open without O.P.(C) No.1276/2020 9 causing any obstruction to the use of the disputed way. 20. Learned counsel for the petitioners contended that the first defendant was present when the commissioner inspected the property on 08.07.2020 and having come to know about the institution of the suit, even in the absence of any order of temporary injunction or status quo, he should not have made any change in the nature of the property which is the subject matter of dispute in the suit. Learned counsel would also submit that, if a party to the suit has unilaterally altered the status quo which was prevailing on the date of institution of the suit with regard to the subject matter of the suit, the opposite party is entitled to get an order restoring the status quo. 21. The law is that a a party to a suit, during pendency thereof, shall not make any alteration or change to the nature of the property which is the subject matter of dispute in the suit. If a party to the suit commits any such act during the pendency of the suit, either in violation of the order of injunction or otherwise, the Court indisputably will have jurisdiction to restore the parties back to the same position (See **Tanusree Basu v. Ishani** O.P.(C) No.1276/2020 10 **Prasad : AIR 2008 SC 1909** ). When it is shown that one of the parties to the suit has altered the status quo and when the interests of justice demand that the status quo ante be restored, the court has power to grant an order of interim mandatory injunction (See **Kishore Kumar Khaitan v. Praveen Kumar Singh : AIR 2006 SC 1474** and **Samir Narain Bhojwani v. M/s Aurora Properties : (2018) 17 SCC 203)** . 22. An interim mandatory injunction to restore the status quo as on the date of institution of the suit can be granted at the instance of a party to the suit when it is shown that the other party has unilaterally altered it. No party to a litigation can be allowed to unilaterally alter the state of affairs on the date of institution of the lis with regard to the subject matter of the suit to the disadvantage or detriment of the opposite party. 23. In **Dorab Cawasji Warden v. Coomi Sorab Warden : AIR 1990 SC 867** , the Apex Court has observed as follows: _“The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status_ O.P.(C) No.1276/2020 11 _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 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”._ 24. If the petitioners/plaintiffs have got a plea or grievance that, after the institution of the suit, the first defendant, with the knowledge of institution of the suit, has made any alteration or change to the subject matter of the suit O.P.(C) No.1276/2020 12 to their detriment, they are at liberty to file fresh application before the trial court seeking appropriate relief with appropriate pleadings. 25. In the aforesaid circumstances, the challenge made to Ext.P8 order fails. 26. Consequently, the original petition is dismissed. All pending interlocutory applications are closed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr O.P.(C) No.1276/2020 13 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.336/2020 DATED 08.07.2020 ON THE FILES OF ADDL. MUNSIFF COURT, CHERTHALA. EXHIBIT P2 TRUE COPY OF I.A.NO. 1/2020 IN O.S. NO. 336/2020 DATED 08.07.2020. EXHIBIT P3 TRUE COPY OF THE REPORT AND PLAN SUBMITTED BY THE ADVOCATE COMMISSIONER, MISS C. PREETHA DATED 04.08.2020 IN O.S. NO. 336/2020** **EXHIBIT P4 TRUE COPY OF THE 2ND REPORT OF THE ADVOCATE COMMISSIONER, MISS C. PREETHA DATED 04.08.2020.** **EXHIBIT P5 TRUE COPY OF I.A. NO. 6/2020 IN O.S NO. 336/2020 DATED 06.08.2020. EXHIBIT P6 TRUE COPY OF THE OBJECTION TO I.A.NO. 1/2020 IN O.S.NO. 336/2020 DATED 13.08.2020 FILED BY THE 1ST DEFENDANT. EXHIBIT P7 TRUE COPY OF OBJECTION TO I.A.NO. 6/2020 IN O.S. NO. 336/2020 DATED 11.08.2020 FILED BY THE 1ST DEFENDANT.** - **EXHIBIT P8 TRUE COPY OF ORDER DATED 14.08.2020 OF THE ADDL. MUNSIFF COURT, CHERTHALA IN I.A. NO. 6/2020 IN O.S.NO.336/2020** - **EXHIBIT P9 TRUE COPY OF THE LETTER DATED 6.10.2020 ALONG WITH THE DELIVERY REPORT ISSUED TO SHRI.N.BALACHANDRAN ADVOCATE BY THE POSTMASTER,CHERTHALA.** - **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 08.07.2020 IN I.A.NO.1/2020 IN O.S.NO.336/2020 PASSED BY THE LEARNED ADDITIONAL MUNSIFF, CHERTHALA** O.P.(C) No.1276/2020 14 ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R1 (a)** **PHOTOGRAPH SHOWING THE GATE AT THE ENTRY INTO THE PLAINT SCHEDULE ITEM NO.10 PROPERTY AND THE RESPONDENTS VEHICLE BEING TAKEN OUT.** **EXHIBIT R1 (b)** **PHOTOGRAPH SHOWING TWO WHEELER BEING TAKEN OUT OF THE GATE INTO THE PLAINT ITEM NO.10 PATHWAY IN THE PRESENCE OF THE ADVOCATE COMMISSIONER.** **EXHIBIT R1 (c)** **TRUE COPY OF THE ADVOCATE COMMISSION REPORT DATED 13.10.2020** **EXHIBIT R1 (d)** **TUE COPY OF THE SUMMONS IN I.A. NO. 1 OF 2020 IN O.S. NO.336 OF 2020 DELIVERED TO THE RESPONDENT BY THE AMIN OF ADDITIONAL MUNSIFF COURT, CHERTHALA DATED 24.07.2020** **EXHIBIT R1 (e)** **TRUE COPY OF THE REPORT BY THE AMIN DATED 10.07.2020** TRUE COPY PS TO JUDGE