Sandes Savio Jose v. K.K. Mathew and Colin Alex

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 OP(C) NO. 84 OF 2022** **(CMA.14/2021, PRINCIPAL SUB COURT/COMMERCIAL COURT,** ## **THALASSERY** ## **PETITIONER/APPELLANT/RESPONDENT/PLAINTIFF:** SANDES SAVIO JOSE AGED 40 YEARS, S/O.JOSEPH, AGRICULTURIST, RESIDING AT MYALIL GRACE VILLA, KARIKOTTAKARI, AYYAMKUNNU AMSOM DESOM, P.O.KOOMANTHODE, KANNUR DISTRICT, PIN – 670 704. BY ADVS. R.SURENDRAN S.MAYUKHA ## **RESPONDENTS/RESPONDENTS/PETITIONERS/DEFENDANTS:** 1 K.K.MATHEW AGED 70 YEARS, S/O.KURIAKOSE, ADVOCATE & NOTARY PUBLIC, KIZHAKKEKARA, MADATHIL, PAYAM AMSOM DESOM, P.O.IRITTY, KANNUR DISTRICT, PIN – 670703. 2 COLIN ALEX, AGED 26 YEARS, S/O.CHANDY, KIZHAKKEKARA, MADATHIL, PAYAM AMSOM DESOM, P.O.IRITTY, KANNUR DISTRICT, PIN – 670703. BY ADVS. FOR RESPONDENTS T.K.VIPINDAS FOR RESPONDENTS S.SREEKUMAR (SR.) FOR RESPONDENTS K.V.SREE VINAYAKAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.02.2022, THE COURT ON 17.02.2022 DELIVERED THE FOLLOWING: 2 O.P(C).No.84/2022 ## _**A.BADHARUDEEN, J.**_ **---------------------------------------------** O.P(C).No.84 OF 2022 **----------------------------------------------------** Dated this the 17th day of February, 2022 ## _**J U D G M E N T**_ Judgment in CMA.14/21 on the file of the Principal Sub Court, Thalassery, is under challenge in this Original Petition (Civil) filed under Article 227 of the Constitution of India. 2. The petitioner herein is the plaintiff in O.S.430/2020 on the file of Munsiff Court, Kuthuparamba, and the respondents herein are defendants 1 and 2 in the above Suit. 3. Heard both sides in detail and perused the available materials. 4. Short facts: The plaintiff herein filed Suit (O.S.No.430/2020) for granting permanent prohibitory injunction restraining the defendants and their men from widening the passage situated in the plaint schedule property into a road or 3 O.P(C).No.84/2022 taking any vehicles through the plaint schedule property. Along with the Suit, an interim injunction application also was moved. But the court below not allowed the said interim application. Defendants appeared on notice in the interim injunction application filed by the plaintiff. Later, alleging obstruction of the pathway in existence, after filing the Suit, the defendants filed petition I.A.No.7/2021 seeking interim mandatory injunction to remove the laterite stone stacked on the private way leading to the defendants' property, which is situated on the western side of the plaint schedule property. According to the defendants, after filing Suit on 19.01.2021, the plaintiff stacked lot of laterite stone across the said pathway, with a view to obstruct use of the said pathway by the defendants. 5. The respondent/plaintiff filed objection and resisted the contention. 6. The learned Munsiff considered the rival contentions and after apprising the commission report and plan marked as 4 O.P(C).No.84/2022 Exts.C1 and C2 filed at the time of filing of the Suit and Exts.C3 to C5 filed thereafter showing construction of laterite stone wall in the disputed way, after finding the obstruction alleged by the defendants, allowed I.A.No.7/2021 and the plaintiff was directed by an interim mandatory injunction to remove the laterite stone stacked in the property in dispute, which is specifically shown in the C2 sketch as disputed plot. 7. Challenging the said order, the plaintiff filed CMA.14/2021. The learned Sub Judge, after having apprised the materials, concurred the finding of the learned Munsiff and finally dismissed the appeal. 8. While assailing the concurrent finding of the courts below, the learned counsel for the petitioner raised a specific contention that a petition filed under Order 39 Rule 1 of Code of Civil Procedure for issuing mandatory injunction at the instance of the defendants is not maintainable and the remedy of the defendants is by invoking the inherent power under Section 151 5 O.P(C).No.84/2022 of the Code of Civil Procedure. In support of this contention, the learned counsel placed reliance on a Division Bench decision of this Court reported in [1995(2) KLT 326], _**Hamsa v. George.**_ According to the learned counsel, as per this Division Bench decision, the decision of the single Bench reported in [1988 (1) KLT 420], _**Vincent v. Aisumma**_ has been virtually overruled. 9. In view of this argument, I have perused the ratio in _**Vincent**_ 's case ( _supra_ ). In the said decision, it was held by the learned Single Judge that mandatory injunction can be granted in an interlocutory application filed under Order 39 Rule 1 of the C.P.C at the instance of the defendants. In the said case, defendants filed an interim mandatory injunction application under Section 151 of C.P.C. When the said plea was dismissed by the trial court, revision was filed before this Court. In the said case, the learned Single Judge addressed the challenge raised by the plaintiff on the ground that the application to be treated as one filed under Order 39 Rule 1 of C.P.C though Section 151 is 6 O.P(C).No.84/2022 quoted therein. Thereafter, the learned Single Judge found that the said application would fall within the ambit of Order 39 Rule 1 of C.P.C and consequently it was held that the said order is one appealable under Order 43 Rule 1(r) of C.P.C. 10. However, in _**Hamsa**_ 's case ( _supra_ ), a Division Bench of this Court held that the remedy of the defendant in the matter of injunction is under Section 151 of C.P.C, dehors the provisions of Order 39. 11. Coming to the crux of this case, the copy of the injunction application filed by the defendants as I.A.7/2021 is not available in the paper book. In the orders impugned also, nothing stated regarding the provision under which I.A.No.7/2021 was filed. However, as informed by the learned Munsiff, I.A.No.7/2021 is an application filed by the defendants under Section 94 r/w 151 of C.P.C. Thus it appears that the defendants filed the petition seeking exercise of inherent power of the court below to restore _status quo ante_ in tune with the ratio in _**Hamsa**_ 's 7 O.P(C).No.84/2022 case ( _supra_ ). According to the learned counsel for the petitioner, the order in I.A.No.7/2021 passed by the learned Munsiff to be construed as one passed under Order 39 Rule 1 of C.P.C, since an appeal as CMA.14/2021 was filed by invoking Order 43 Rule 1(r) of C.P.C. Although the said contention appears to be impressive at the first blush, the same cannot be appreciated since the appeal was filed by the petitioner herein and if so, the petitioner wrongly filed appeal against an order which is not appealable. No doubt, such an order can be challenged under Article 227 of the Constitution of India, since revision is barred as per the proviso to Section 115 of the Code of Civil Procedure. 12. Coming to the legal question, since the petition was filed under Section 151 of C.P.C, the same is maintainable and the contentions raised by the learned counsel for the petitioner on the premise that I.A.No.7/2021 was filed under Order 39 Rule 1 of C.P.C cannot be countenanced. 13. Here as per the order impugned in I.A.No.7/2021, the 8 O.P(C).No.84/2022 learned Munsiff directed the plaintiff to remove the obstruction made after filing the Suit as reported by the second Commissioner with a view to obstruct the pathway available to the defendants, as reported by the first Commissioner. 14. The learned counsel for the petitioner submitted that in the title deed of the defendants, viz., sale deed 3068 of 2018 (in page No.8 of this paper book), it was stated that there was no road facility to the property of the defendants. At the same time, the learned counsel would submit that in page 73 of this paper book, the relevant page of the title deed of the defendants would recite that on the western side of the property originally held by Francis & Regina, there existed a way towards the property of the defendants. 15. In fact, the recital in page 72 relating to the title deed is relevant to find that in the title deed of the defendants, a way through the property held by Francis & Regina (it is the case of the plaintiff that the plaintiff purchased the property from Francis 9 O.P(C).No.84/2022 & Regina) has been provided. However, entry in page 73 is of no significance and what has been recited therein is, there was no road facility to the property as per the gazette notification since absence of a way as per the gazette notification is not a ground to hold that the property is either without any way or landlocked. As per the recitals in the deed, a way as contended by the defendants to be noticed . _prima facie_ 16. It is true that as rightly submitted by the learned counsel for the petitioner, no written statement was filed at the time of filing I.A.7/2021 and the written statement was filed thereafter. In this connection, the leraned counsel for the respondents/defendants produced copies of the separate written statements filed by defendants 1 and 2 as on 09.04.2021. 17. To be on the crux of the matter, the available materials as could be read out from the commission reports marked as Exts.C1 to C5 would establish that the plaintiff obstructed the pathway available to the defendants after filing the 10 O.P(C).No.84/2022 Suit and the same was ordered to be restored at the time of filing the Suit by way of mandatory injunction. I do not think that the said order suffers from any perversity or illegality in any manner. 18. Having apprised the rival contentions and the consequential discussion, I am of the view that the order passed by the learned Munsiff is justifiable and no interference thereof is called for by exercising powers under Article 227 of the Constitution of India. In the result, the Original Petition fails and is accordingly dismissed. _Sd/-_ ## _**(A.BADHARUDEEN, JUDGE)**_ rtr/ 11 O.P(C).No.84/2022 ## **APPENDIX OF OP(C) 84/2022** ## PETITIONER'S EXHIBITS |EXHIBIT P1|COPY OF THE PLAINT IN O.S.NO.430 OF 2020| |---|---| ||ON THE FILE OF THE MUNSIFF'S COURT,| ||KUTHUPARAMBA.| |EXHIBIT P2|COPY OF THE REPORT AND PLAN DATED| ||20.01.2021 SUBMITTED BY THE ADVOCATE| ||COMMISSIONER IN O.S.NO.430/2020 ON THE| ||FILE OF THE MUNSIFF'S COURT,| ||KUTHUPARAMBA.| |EXHIBIT P3|COPY OF THE REPORT AND PLAN DATED| ||17.02.2021 SUBMITTED BY THE ADVOCATE| ||COMMISSIONER IN O.S.NO.430/2020 ON THE| ||FILE OF THE MUNSIFF'S COURT,| ||KUTHUPARAMBA.| |EXHIBIT P4|COPY OF THE AFFIDAVIT AND SCHEDULE FILED| ||IN SUPPORT OF THE I.A.NO.7/2021 IN| ||O.S.NO.430/2020 ON THE FILE OF THE| ||MUNSIFF'S COURT, KUTHUPARAMBA.| |EXHIBIT P5|COPY OF THE COUNTER STATEMENT IN| ||I.A.NO.7/2021 IN O.S.NO.430/2020 ON THE| ||FILE OF THE MUNSIFF'S COURT,| ||KUTHUPARAMBA.| |EXHIBIT P6|COPY OF THE ORDER DATED 09.04.2021 IN| ||I.A.NO.7/2021 IN O.S.NO.430/2020 ON THE| ||FILE OF THE MUNSIFF'S COURT,| ||KUTHUPARAMBA.| |EXHIBIT P7|COPY OF THE MEMORANDUM OF APPEAL IN| ||C.M.A.NO.14/2021 ON THE FILE OF THE| ||PRINCIPAL SUB COURT, THALASSERY.| |EXHIBIT P7(a)|COPY OF THE ORDER DT.6.7.2021 IN| ||I.A.NO.2/2021 IN C.M.A.NO.14/2021 ON THE| ||FILE OF THE PRINCIPAL SUB COURT,| ||THALASSERY.| |EXHIBIT P8|A COPY OF THE ORDER DATED 22.12.2021 IN| ||C.M.A.NO.14/2021 ON THE FILE OF THE| ||PRINCIPAL SUB COURT, THALASSERY.| |EXHIBIT P9|A COPY OF THE SALE DEED DATED 8.11.2018| ||REGISTERED AS DOCUMENT NO.3068/2018 OF| ||SRO, ULIYIL.| 12 O.P(C).No.84/2022 ## RESPONDENTS' EXHIBITS EXT.R1(A): THE PHOTOGRAPHS OF THE PATHWAY TAKEN BEFORE 19.01.2021. EXT.R1(B): THE PHOTOGRAPHS TAKEN AFTER THE HIGH HANDED ACT OF THE PETITIONER COMMITTED ON 19.01.2021. EXT.R1(C): TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST DEFENDANT. EXT.R1(D): TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND DEFENDANT.