Anilkumar vs K.Rajendran
2021 Latest Caselaw 3887 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

 WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942

                    OP(C).No.164 OF 2021

AGAINST THE ORDER DATED 28.10.2020 I.A.NOS.01/2020, 02/2020,
 05/2020 AND 06/2020 IN O.S.NO.195/2020 OF PRINCIPAL MUNSIFF
                      COURT,NEDUMANGAD


PETITIONER/APPELLANTS/DEFENDANTS:

      1     ANILKUMAR,
            AGED 56 YEARS,
            S/O. GOPALAPILLAI,
            'ANASWARA', NEAR SNDP HALL, PURAVOORKONAM,
            KARAKULAM, KARAKULAM VILLAGE, NEDUMANGAD TALUK,
            THIRUVANANTHAPURAM - 695564.

      2     ANITHADEVI,
            AGED 50 YEARS,
            W/O. ANILKUMAR, 'ANASWARA', NEAR SNDP HALL,
            PURAVOORKONAM, KARAKULAM, KARAKULAM VILLAGE,
            NEDUMANGAD TALUK, THIRUVANANTHAPURAM - 695564.

      3     DINESH,
            AGED 60 YEARS,
            S/O. VISWANATHAN, 'MURALIKA', NEAR SNDP HALL,
            PURAVOORKONAM, KARAKULAM, KARAKULAM VILLAGE,
            NEDUMANGAD TALUK, THIRUVANANTHAPURAM - 695564.

      4     PUSHPALATHA,
            AGED 55 YEARS,
            W/O. DINESH, 'MURALIKA', NEAR SNDP HALL,
            PURAVOORKONAM, KARAKULAM, KARAKULAM VILLAGE,
            NEDUMANGAD TALUK, THIRUVANANTHAPURAM - 695564.

            BY ADVS.SRI.R.SUNIL KUMAR
                    SMT.A.SALINI LAL

RESPONDENT/PLAINTIFF:

            K.RAJENDRAN,
            AGED 72 YEARS,
            S/O. KUNJUKRISHNAN, INDHRAJAYAM, T.C. 16/784-3,
            NEAR KRISHNAN COVIL, JAGATHI, THYCAUD VILLAGE,
            THIRUVANANTHAPURAM, THYCAUD P.O - 695014.
 O.P.(C)No.164/2021

                                -:2:-




                 BY ADVS. SRI.RIJI RAJENDRAN
                          SMT.SURYA BINOY
                          SMT.MITHA SUDHINDRAN

     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
22-01-2021, THE COURT  ON  03-02-2021 DELIVERED THE
FOLLOWING:
 O.P.(C)No.164/2021

                                       -:3:-




                                                                           "CR"




                     Dated this the 3rd day of February, 2021

                              J U D G M E N T

The concurrent orders of interim mandatory

injunction issued by two courts below in a suit

for prohibitory injunction directing restoration

of status quo ante as it existed prior to the date

of institution of the suit, are assailed by

defendants in this original petition filed under Article 227 of the Constitution of India.

2. The legal question that arises for

consideration is whether court has power in a suit

instituted for permanent prohibitory injunction to

issue temporary mandatory injunction directing the

defendants in the suit to put the property in

dispute back to its original position as it existed

anterior to the suit.

3. The petitioners/defendants are owners of

plaint 'B' schedule item Nos.1 and 2 in the suit.

The sole respondent/plaintiff owns plaint 'A'

schedule 50 cents. The parties purchased respective

portions of land from common owners. The plaint 'A'

and 'B' schedule properties lie respectively on the O.P.(C)No.164/2021

eastern and western sides of plaint 'C' schedule

pathway which measures a width of 3.7 meters.

4. The existence of 'C' schedule pathway is

undisputed by parties. The 'C' schedule lies in

north-south direction forming part of the pathway

which starts from the public road on the south.

5. The respondent claims that after plaint 'A'

schedule property was purchased in 1993, he put up

eight feet wide gate on the western boundary of his

property for access to his land from plaint 'C'

schedule and acquired by long user,a right of

easement by prescription. It is said that he

recently widened the existing entrance of 'A'

schedule to 15 feet and put up a new iron gate.

6. Allegation against the petitioners is that

they put up 'D' schedule wall made of hollow bricks

in 'C' schedule at a height of five feet covering

the new gate and blocked the respondent's entry to

and fro the plaint 'A' schedule. Consequentially,

the respondent was forced to file the instant suit

for permanent prohibitory injunction on 10.03.2020

for a decree restraining the petitioners from

committing mischief to the newly installed iron

gate and further interfering with his right to use

plaint 'C' schedule pathway. He specifically O.P.(C)No.164/2021

contended that the unauthorised wall was put up on

02.03.2020, a week anterior to the date of suit.

7. The petitioners filed written statement as

well as a counter claim admitting erection of 'D'

schedule wall which, according to them, was quite

necessary to protect their alleged exclusive right

of user of plaint 'C' schedule acquired by grant as

borne out from the title deeds taken in their

names.

8. They also contended that respondent did not

have any lawful right to use 'C' schedule pathway

and at no point of time, any gate or entrance

existed on the western side of plaint 'A' schedule.

The entrance was created a few days prior to the

date of institution of suit and 'D' schedule

construction was put up in exercise of their lawful

right.

9. In the trial court, a commission was taken

out simultaneously with institution of the suit and

the Commissioner noticed the age of 'D' schedule

construction to be a week old. This is not a

disputed fact between parties. It is quite relevant

to note that the age of 'D' schedule wall alone was

inspected and reported. The age of construction of

the entrance was neither inspected nor sought to be O.P.(C)No.164/2021

reported. It is also a matter of fact that

respondent owns substantial extent of land close to

the southern side of plaint 'A' schedule and to the

immediate east of the pathway which starts from the

southern public road and joins plaint 'C' schedule.

That looks to be one of the reasons as to why the

respondent has not chosen to claim a right of

easement by necessity.

10. The respondent filed a petition before the

munsiff court for issue of temporary mandatory

injunction directing the petitioners to remove 'D'

schedule construction and restore 'C' schedule to

its original position as it stood a week prior to

the institution of the suit.

11. The petitioners also filed a similar

petition for temporary mandatory injunction seeking

issue of direction against respondent to remove the

newly erected iron gate fixed in his compound wall

and to restore the boundary wall to its original

position.

12. The learned Munsiff after examining the

contentions of parties found that prima facie case

and balance of convenience existed in favour of the

respondent and rejected petitioners' contention

that court did not possess the power, in a suit O.P.(C)No.164/2021

brought for prohibitory injunction, to issue

interim mandatory injunction and call upon parties

to suit to undo a mischief which was allegedly

committed anterior to the suit. In rejecting this

contention, the court below relied on J.James v.

Jaimon James [1998(1)KLJ 281].

13. Though the petitioners challenged the

impugned order passed by the learned Munsiff, it

was only confirmed by the learned Sub Judge in

appeal endorsing the same view. That is how the

legality of Exts.P7 and P8 orders passed by the

courts below, have now come to be challenged

before this Court.

14. In order to address the legal question

posed in this proceeding, it is quite necessary to

comprehend the true purport, scope and distinction

between the suits instituted for decree of

prohibitory injunction and mandatory injunction,

in the light of the statutory provisions in

Chapter VIII of the Specific Relief Act, 1963 (for

short, 'the Act') and also Order XXXIX Rules 1 and 2 of the Code of Civil Procedure,1908 (for short,

'the CPC').

15. Looking at Sections 38 and 39 of the O.P.(C)No.164/2021

Act, it is obvious from these provisions that

decrees for prohibitory and mandatory injunction

are issued by courts for the purpose of preventing

commission of breach of legal obligation existing

in favour of the suitor when the defendant invades

or threatens to invade former's right to or

enjoyment of property.

16. Though prevention of breach of legal

obligation is the objective underlying both the

suits, what distinguishes each other is the nature

and scope of relief which the court is legally

empowered to grant in such suits. The prevention

of breach of legal obligation could be made by the

court either by forbidding a future action from

happening or by compelling performance of positive

acts which the court is capable of enforcing.

17. In order that the commission of a future

wrong is prevented, suit for prohibitory

injunction must be brought ahead of such

apprehended wrong. Once the wrong has already been

committed, then the possible way of preventing

continuance of the wrong done is to sue for a

decree of mandatory injunction directing removal

of the wrong committed before the suit. It will be O.P.(C)No.164/2021

a futile exercise for a person affected by such

wrong, to sue for a decree of prohibitory

injunction and hope to get a final relief. The

court cannot grant any order of temporary

injunction in such as suit since on the date of

the suit itself, the cause of action for a

preventive relief already ceases to exist. A suit

claiming a preventive relief in similar

circumstance is itself not maintainable also.

18. A close reading of Order XXXIX Rules 1

and 2 of the CPC demonstrates that the court

derives power to order temporary injunction,

whether prohibitory or mandatory from these

provisions. They equip the court with all the

powers to make such orders as are necessary for

prevention of commission of wrongful acts in

relation to the property in dispute in the suit.

The interim reliefs requisite for preserving the

subject matter during the pendency of the suit,

are issued by following parameters as to the

existence of prima facie case, balance of

convenience and irreparability of loss.

19. Even though the plea for issue of

temporary prohibitory injunction and temporary O.P.(C)No.164/2021

mandatory injunction is commonly tested on the

touchstone of prima facie case, balance of

convenience and theory of irreparability of

injury, the rigour of the test to be followed in

both proceedings is, however, different. The

prima facie case to be satisfied in a proceedings for temporary prohibitory injunction is whether a

bona fide substantial question which needs

investigation as well as decision on merits,

exists in the suit. But a mere establishing of a

bona fide substantial question will not satisfy the test of prima facie case for granting a

temporary mandatory injunction. The prima facie

case made out in such proceedings must be so

strong and unusually clear that the suit has a

high probability of success. The hallmark decision

in Dorab Cawasji Warden v. Coomi Sorab Warden and

Others [(1990) 2 SCC 117] lays down the principles of law which courts have to essentially follow

while considering the plea for issue of interim

mandatory injunction. Paragraph Nos.16 and 17 of

the said decision are extracted below:

16. 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 O.P.(C)No.164/2021

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 injuries 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 been 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 cae 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.

17. 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 injunction would be a sound exercise of a judicial discretion.

20. Both the courts below after being fully

conscious that 'D' schedule construction was

already completed a week prior to the suit, chose

to order interim mandatory injunction directing

removal of obstruction assuming that the courts O.P.(C)No.164/2021

did have power to order restoration of status quo

ante as it existed prior to the date of suit. I find it very difficult to endorse the view taken

by the courts below in the light of the legal

discussion made above.

21. The power of the court to restore the

state of affairs to a position anterior to suit by

issue of an interim mandatory injunction cannot be

exercised in a suit for a decree of prohibitory

injunction. The court is of course, well within

its own powers to issue interim mandatory

injunction restoring status quo ante to a date

prior to suit provided such a relief is claimed in

a suit brought for a decree of mandatory

injunction and further all necessary conditions as

laid down in Dorab Cawasji Warden's case (supra)

are established by the applicant in the

proceedings. On the other hand, if such relief is

claimed in a suit for prohibitory injunction and

is granted, the court would be exceeding its own

jurisdiction and enlarging the scope of the suit.

22. It is an accepted position of law that in

a suit laid for prohibitory injunction, what

cannot be granted as final relief in the suit O.P.(C)No.164/2021

cannot be granted as interim relief also. This,

however, should not be understood to deprive the

court's power in a suit for prohibitory

injunction, to issue interim mandatory injunction

to restore status quo ante as on the date of suit

when in a particular case, the property in dispute

is shown to be interfered with by the defendant

during the pendency of the suit, whether it be in

violation of an existing order of injunction or

otherwise. This power to order status quo ante

flows out of the inherent power vested in the

court and it is liable to be exercised, with due

regard to the happening of subsequent events in

the suit with a view to setting things right and

undoing mischiefs committed by the defendant . The

court may exercise this power even suo motu provided necessary facts and materials justifying

such exercise of power are brought on record in

the suit.

23. What the courts below exercised in the

instant case is not a power to restore status quo

ante as it existed on the date of suit; but a power to reinstate state of affairs which pre

existed the suit. The legal conclusion that O.P.(C)No.164/2021

emerges from the entire discussion above is that a

court which has reason to order restoration of

status quo ante to a period prior to the date of suit is not empowered to issue an interim

mandatory injunction in suits brought otherwise

than for a decree of mandatory injunction.

24. Having gone through J.James's case

(supra) relied by the courts below, I am unable to

find from the said decision that it intended to lay

down a law different from what was discussed above.

Since the courts below have failed to follow the

legal principles adverted to above while passing

Exts.P7 and P8 orders, I hold that they are liable

to be set aside. It is incomprehensible as to how

could have the existence of a prima facie case

been found by the courts below in favour of the

respondent when the suit was not, as a matter of

fact, one brought for mandatory injunction.

In the result, original petition succeeds and

it is allowed setting aside Exts.P7 and P8 orders.

However, I make it clear that this judgment will

not stand in the way of the parties seeking to

bring necessary amendments to their pleadings, if

they so choose and in that event, it will be open O.P.(C)No.164/2021

to the learned Munsiff at the request made by the

parties if any, to consider the applications

before it over again on merits in accordance with

principles of law aforementioned.

All pending interlocutory applications will

stand closed.

Sd/-

                                      T.V.ANILKUMAR,JUDGE

DST                                                       //True copy/

                                                         P.A.To Judge
 O.P.(C)No.164/2021






                         APPENDIX
PETITIONERS' EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE PLAINT IN OS
                     NO.195/20.

EXHIBIT P2           TRUE COPY OF THE WRITTEN STATEMENT IN
                     OS NO.195/20

EXHIBIT P3           TRUE COPY OF IA NO.1/2020 IN OS NUMBER
                     195/2020.

EXHIBIT P4           TRUE COPY OF IA NO.2/2020 IN OS NUMBER
                     195/2020.

EXHIBIT P5           TRUE COPY OF IA NO.5/2020 IN OS NUMBER
                     195/2020.

EXHIBIT P6           TRUE COPY OF IA NO.6/2020 IN OS NUMBER
                     195/2020.

EXHIBIT P7           TRUE COPY OF THE COMMON ORDER OF THE

HONOURABLE PRINCIPAL MUNSIFF NEDUMANGAD IN IA: NO:1/2020

EXHIBIT P8 TRUE COPY OF THE ORDER OF THE HONOURABLE SUBORDINATE JUDGE, NEDUMANGAD IN CMA 10/2020.

EXHIBIT P9 TRUE COPY OF THE SALE DEED NUMBER 105/93 KARAKULAM SRO.

EXHIBIT P10 TRUE COPY OF THE SALE DEED NUMBER 25/2000 OF OF KARAKULAM SRO.

EXHIBIT P11 TRUE COPY OF THE SALE DEED NUMBER 148/2001 OF KARAKULAM SRO.

EXHIBIT P12 TRUE COPY OF THE COMMISSION APPLICATION IA NO.11/2020 IN OS NO.195/2020.

RESPONDENT'S EXHIBITS:

EXHIBIT R1(A) PHOTOGRAPHS OF THE UNAUTHORISED CONSTRUCTION OF D SCHEDULE WALL.

EXHIBIT R1(B) CERTIFIED COPY OF THE COMMISSION REPORT IN O.S 195 OF 2020.

O.P.(C)No.164/2021

EXHIBIT R1(C) CERTIFIED COPY OF THE GIFT DEED NO.182/1972 MARKED BY THE MUNSIFF COURT.