Sumesh vs Fr.Jacob Cherranvelil
2022 Latest Caselaw 3361 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
               THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                     OP(C) NO. 560 OF 2022
       IN AS 10/2022 OF ADDITIONAL DISTRICT COURT - IV,
                           KOTTAYAM
PETITIONERS:

   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-686006.
          BY ADVS.
          LIJI.J.VADAKEDOM
          TOM E. JACOB


RESPONDENTS:

   1      FR.JACOB CHERRANVELIL
          VICAR BETHLAHEM CHURCH,
          PERUKBAIKKAD.P.O, PERUMBAIKKADU VILLAGE,
          PERUMBAIKKATTUSSERY KARA, KOTTAYAM TALUK,
          PIN-686006.
   2      ADV.M.J.MANI,
          AGED 70 YEARS
          S/O.JOSEPH, VALIYAVEETTIL HOUSE,
          PERUMBAIKKAD.P.O,
          PERUMBAIKKADU VILLAGE, PERUMBAIKKATTUSSERY
          KARA,
          KOTTAYAM TALUK,PIN-686006.
 OP(C) NO. 560 OF 2022
                                      ..2..
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    3      K.O.THOMAS,
           AGED 62 YEARS
           S/O.THOMMAN OUSEPH, KONDOOR,
           KANJIRATHINKAL HOUSE,
           PERUMBAIKKAD .P.O, PERUMBAIKKADU VILLAGE,
           KOTTAYAM TALUK,
           PIN-686006.
    4      T.K.SIMON,
           AGED 64 YEARS
           S/O.KURIAKOSE, THIRUVILAKKIL HOUSE, THELLAKOM
           KARA,
           PEROOR VILLAGE, PERUMBAIKKADU.P.O,KOTTAYAM-
           686006.
    5      K.R.RAJEEV,
           AGED 32 YEARS
           S/O.RAJAPPAN, KADALIKALAYIL HOUSE,
           PERUMBAIKKADU.P.O,
           PERUMBAIKKADU VILLAGE, PERUMBAIKKATTUSSERY KARA,
           KOTTAYAM TALUK, PIN-686006.
OTHER PRESENT:

               SRI. RAJU JOSEPH (SR)


        THIS    OP   (CIVIL)    HAVING        COME   UP    FOR    ADMISSION    ON
22.03.2022,       THE   COURT    ON    THE      SAME      DAY    DELIVERED    THE
FOLLOWING:
 OP(C) NO. 560 OF 2022
                                ..3..
                                  ,




                         JUDGMENT

Challenge in this Original Petition, filed under

Article 227 of the Constitution of India, is to the order

dated 05.03.2022 in I.A.No.3/2022 in A.S.No.10/2022

passed by the Additional District Court - IV, Kottayam.

2. Petitioners are respondents 2 and 3 in the

appeal. The appellants are respondents 1 to 4.

Respondent No.1 in the appeal is respondent No.5 in the

original petition.

3. Petitioner No.2 instituted O.S.No.218/2004

before the Munsiff's Court, Ettumanoor against

respondents 2 to 4 for a permanent prohibitory injunction

regarding the plaint 'B' schedule property which is

described as a way.

4. Respondents 1 to 4 instituted O.S.No.90/2015

against the petitioners and respondent No.5 for

declaration and permanent prohibitory injunction OP(C) NO. 560 OF 2022 ..4..

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regarding the subject matter in O.S.No.218/2004.

5. The Trial Court jointly tried both the suits and

decreed O.S.No.218/2014 in favour of petitioner No.2

declaring that 'B' schedule pathway is a public road. The

Court also granted a consequential injunction. The Trial

Court dismissed O.S.No.90/2015.

6. There were steps on different levels on the

plaint 'B' chedule way. After the decree, the lie and

nature of 'B' schedule way was partially changed by

demolishing the steps thereon.

7. Respondents 1 to 4 challenged the judgment

and decree passed by the Trial Court by filing A.S.Nos.9

and 10 of 2022 before the District Court, Kottayam. The

appeals were made over to the Additional District Court

-IV, Kottayam.

8. Respondents 1 to 4 filed I.A.Nos.1 and 3 of

2022 in A.S.No.10/2022 alleging that the petitioners and

respondent No.5 demolished the steps constructed on the

'B' schedule way. They prayed for a prohibitory OP(C) NO. 560 OF 2022 ..5..

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injunction restraining the petitioners and others from

committing further waste in 'B' schedule property. They

also prayed for an interim mandatory injunction directing

the petitioners and others to restore 'B' Schedule

property into its original position. The District Court

jointly considered the two interlocutory applications and

passed Ext.P6 common order dated 05.03.2022. In

Ext.P6, the District Court restrained the petitioners and

others by way of a prohibitory injunction from destroying

the cross situated at the northern end portion of 'B'

schedule way, destroying the remaining steps and terrace

thereon and altering its nature and lie converting the

same as a cartable road.

9. As per order in I.A.No.3/2022, respondents 1 to

4 were permitted to restore 'B' schedule property to its

original position as noted in Ext.B17, Ext.A10 and Ext.C1

report under the supervision of an Advocate

Commissioner.

10. The order in I.A.No.3/2022 permitting the OP(C) NO. 560 OF 2022 ..6..

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respondents to restore the plaint schedule property to its

original position is under challenge in this Original

Petition.

11. Heard Shri. Liji J. Vadakedom, the learned

counsel appearing for the petitioners and Shri. Raju

Joseph, the learned Senior Counsel appearing for the

respondents.

12. The learned counsel for the petitioners contended

that the District Court has not considered the objections

raised by them on the touchstone of the principles

declared in Dorab Cawasji Warden v. Coomi Sorab

Warden and others [1990 KHC 756] for granting

interim mandatory injunction.

13. Per contra, the learned Senior Counsel

contended that the District Court has exhaustively

considered the averments placed by both sides in arriving

at a finding that the plaint 'B' schedule property is to be

restored to its original position so as to maintain the

subject matter in tact during the pendency of the appeal. OP(C) NO. 560 OF 2022 ..7..

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14. The learned counsel for the petitioners

contended that the District Court has not considered the

comparative hardship that would be caused to the

petitioners by denial of right of enjoyment of 'B' schedule

way while granting the relief of interim mandatory

injunction. The learned counsel further contended that

the District Court lost sight of the settled principles that

govern granting of interim mandatory injunction. In

Dorab Cawasji Warden v. Coomi Sorab Warden and

others (Supra), the Apex Court, on the principles to be

followed while granting interim mandatory injunction,

held thus:-

"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, OP(C) NO. 560 OF 2022 ..8..

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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.

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 nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

15. The District Court, while granting the relief of

interim mandatory injunction in favour of the

respondents, has not meticulously analysed the pleadings

set up by the parties on the touchstone of the principles

enunciated by the Apex Court in Dorab Cawasji

Warden v. Coomi Sorab Warden and others (Supra).

This has caused prejudice to the petitioners. OP(C) NO. 560 OF 2022 ..9..

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16. Resultanly, this Court is of the view that

I.A.No.3/2022 requires fresh consideration. Therefore,

the order dated 05.03.2022 in I.A.No. 3/2022 is set aside.

The Additional District Court - IV, Kottayam shall consider

I.A.No.3/2022 afresh in the light of the principles

discussed above. The Court below shall dispose of

I.A.No.3/2022 on or before 28.03.2022. The Court below

is at liberty to seek further time, if required.

The Original Petition is disposed of accordingly.

Sd/-

K. BABU, JUDGE

kkj OP(C) NO. 560 OF 2022 ..10..

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APPENDIX OF OP(C) 560/2022

PETITIONER EXHIBITS Exhibit P1 THE COPY OF THE COMMON JUDGMENT DATED 30.11.2021 IN O.S.NO.218/2014 AND O.S.NO.90/2015 BEFORE THE MUNSIFF COURT, ETTUMANNOOR Exhibit P2 THE COPY OF THE APPEAL MEMORANDUM IN A.S.10/22 BEFORE THE DISTRICT COURT,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.NO.10/2022 BEFORE THE ADDITIONAL DISTRICT COURT-IV, KOTTAYAM.

Exhibit P5 THE COPY OF THE OBJECTION TO I.A.NO.3/2022 IN THE 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.NO.3/2022 IN A.S.NO.10/2022 BEFORE THE ADDITIONAL DISTRICT COURT-IV, KOTTAYAM.