Kerala High Court
Narankulangara Bhaskaran vs Narayanan Cherukunnon on 7 March, 2025
Author: K.Babu
Bench: K. Babu
2025:KER:19576
O.P (C) No.1673 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 7TH DAY OF MARCH 2025 / 16TH PHALGUNA, 1946
OP(C) NO. 1673 OF 2021
AGAINST THE ORDER DATED 28.07.2021 IN CMA NO.3 OF 2019 OF
SUB COURT, PAYYANNUR
ARISING OUT OF THE ORDER IN IA 510/2018 IN OS NO.197 OF
2017 OF MUNSIFF COURT, PAYYANNUR
PETITIONER/APPELLANT:
NARANKULANGARA BHASKARAN,
AGED 55 YEARS,
S/O LATE KUNHAMBU, PAYYANNUR AMSOM DESOM,
NEAR KARALI SRI BHADRAKALI TEMPLE,
PAYYANNUR, KANNUR-670307.
BY ADVS.
V.R.KESAVA KAIMAL
C.DEVIKA RANI KAIMAL(D-63)
RESPONDENT/RESPONDENT:
NARAYANAN CHERUKUNNON,
AGED 73 YEARS,
S/O LATE CHINDAN, EX-SERVICEMAN,
LAKSHMI NIVAS, PAYYANNUR AMSOM DESOM, P
O KANDANKALI, PAYYANNUR TALIPARAMBA TALUK,
KANNUR-670307.
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O.P (C) No.1673 of 2021
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BY ADVS.
S.S.ARAVIND
M.V.AMARESAN
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
07.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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O.P (C) No.1673 of 2021
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K.BABU, J.
--------------------------------------
O.P (C) No.1673 of 2021
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Dated this the 7th day of March, 2025
JUDGMENT
The order granting an interim mandatory injunction by the
Trial Court and confirmed by the Appellate Court is under challenge
in this proceedings. The petitioner is defendant No.1 in the suit.
2. The plaintiff instituted the Original Suit No.197/2017 before
the Munsiff's Court, Payyannur, seeking a permanent prohibitory
injunction restraining defendant No.1 from blocking a way.
3. Along with the suit, the plaintiff filed an application seeking
a temporary injunction against defendant No.1. In the application,
the Trial Court directed both parties to maintain status-quo as
reported by the Advocate Commissioner.
4. The plaintiff filed I.A No.510/2018 alleging that in violation of
the order of the temporary injunction, defendant No.1 blocked the
way by putting an old cycle on the steps that led to plaint 'A'
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schedule property. The plaintiff also alleged that defendant No.1
locked the gate that existed prior to the institution of the suit.
Therefore, the plaintiff prayed for an interim mandatory injunction
seeking a direction to defendant No.1 to remove the obstructions on
the way.
5. Defendant No.1 resisted the application, denying the
averments in the application seeking interim mandatory injunction.
6. The Trial Court issued a Commission. The Commissioner
initially visited the property and submitted a report. The
Commissioner reported that defendant No.1 placed an old cycle on
the steps leading to the plaint 'A' schedule property and locked the
gate in such a way as to prevent the user of it. Relying on the
report of the Commissioner, the Trial Court allowed the application
seeking interim mandatory injunction directing the defendants to
keep the gate open between 6.00 a.m and 10.00 p.m.
7. I have heard the learned counsel for the
petitioner/defendant No.1 and the learned counsel for the
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plaintiff/respondent.
8. The learned counsel for defendant No.1 submitted that the
plaintiff has no right over the way. It is further submitted that the
Trial Court has not considered the test to be applied for granting
interim mandatory injunction.
9. The learned counsel for the plaintiff supported the
impugned order. The learned counsel submitted that the Trial Court
granted the interim mandatory injunction on satisfaction that the
defendants violated the order of injunction.
10. In the first report, the Commissioner stated that there are
steps joining plaint 'B' schedule property and plaint 'A' schedule
property, indicating signs of a way connecting 'B' schedule property
with the property of the plaintiff. The Commissioner also reported
the existence of a gate at the entrance of 'B' schedule way. In the
subsequent report, the Commissioner stated that an old cycle was
placed on the way as an obstruction and that the gate was seen
locked. The Commissioner further reported that he had entered
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into the plaint schedule property through this gate during his first
visit. He further stated that by way of locking the gate, defendant
No.1 obstructed the user of plaint 'B' schedule way by the plaintiff.
11. The issue that arises for consideration is whether the
order passed by the Trial Court granting interim mandatory
injunction is justified. Grant of interim mandatory relief requires the
highest degree of satisfaction of the Court in the sense much
higher than a case involving grant of prohibitory injunction. The
power to grant interim mandatory injunction is a rare power.
12. In Dorab Cawasji Warden v. Coomi Sorab Warden [(1990) 2
SCC 117], the Supreme Court considered the scope of the grant of
interim mandatory injunction in paragraph Nos.16 and 17 of the
judgment, which is 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 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
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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.
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 injunctions
would be a sound exercise of a judicial discretion."
13. In the present case, the Trial Court granted the interim
mandatory injunction to preserve and restore the status-quo of the
last non-contested status which preceded the pending controversy.
14. Having regard to the rival contentions, the Trial Court
held that the plaintiff has a strong case for trial. The Trial Court
further held that the interim mandatory injunction is required to
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prevent irreparable injury, which normally could not be
compensated in terms of money.
15. In the given case, the Trial Court granted an equitable
relief, which is within the bounds of the test of interim mandatory
injunction declared by the Supreme Court in Dorab Cawasji Warden.
Therefore, this Court is of the view that the order granting interim
mandatory injunction requires no interference.
16. The learned counsel for the petitioner/defendant No.1
submitted that the matter is scheduled for trial.
17. The Trial Court shall expeditiously try the matter and
dispose of the same, at any rate, within six months from the date of
production of a certified copy of this judgment. It is made clear that
the Trial Court is at liberty to seek further extension of time if
warranted.
18. I make it clear that I have not touched on the merits of the
disputes between the parties. The Trial Court shall decide the merit
of the dispute in the suit untrammelled by any of the observations
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made in the impugned orders and the order passed by this Court.
Therefore, the Original Petition (Civil) stands disposed of as
above.
Sd/-
K.BABU,
JUDGE
KAS
2025:KER:19576
APPENDIX OF OP(C) 1673/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF PLAINT IN O.S.NO.197 OF
2017 FILED BY THE RESPONDENT BEFORE THE
MUNSIFF'S COURT, PAYYANNUR.
Exhibit P2 TRUE COPY OF I.A.NO.1064/2017 IN
O.S.NO.197/2017 FILED BY THE
RESPONDENT.
Exhibit P3 TRUE COPY OF COMMISSION REPORT DATED
16/12/2017 FILED BY THE ADVOCATE
COMMISSIONER IN O.S.NO.197/2017.
Exhibit P4 TRUE COPY OF WRITTEN STATEMENT IN
O.S.NO.197/2017 FILED BY THE
PETITIONER.
Exhibit P5 TRUE COPY OF COUNTER-STATEMENT FILED BY
THE PETITIONER IN I.A.NO.1064/2017 IN
O.S.NO.197/2017.
Exhibit P6 TRUE COPY OF AFFIDAVIT IN
I.A.NO.510/2018 IN O.S.NO.197/2017
FILED BY THE RESPONDENT.
Exhibit P7 TRUE COPY OF THE COMMISSION REPORT
DATED 5/10/2018 FILED BY THE ADVOCATE
COMMISSIONER IN O.S.NO.197/2017.
Exhibit P8 TRUE COPY OF THE COUNTER-STATEMENT
FILED BY THE PETITIONER IN
I.A.NO.510/2018 IN OS NO.197/2017.
Exhibit P9 TRUE COPY OF INJUNCTION ORDER DATED
21/1/2019 PASSED IN IA.NO.510/2018 IN
O.S.NO.197/2017 BY THE MUNSIFF'S COURT,
PAYYANNUR.
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Exhibit P10 TRUE COPY OF MEMORANDUM OF APPEAL IN
CMA NO.3/2019 FILED BY THE PETITIONER
BEFORE THE SUBORDINATE JUDGE'S
COURT,PAYYANNUR.
Exhibit P11 TRUE COPY OF JUDGMENT DATED 28/7/2021
PASSED BY THE SUBORDINATE JUDGE'S
COURT, PAYYANNUR IN C.M.A.NO.3/2019.
Exhibit P12 TRUE COPY OF COMPLAINT DATED 9/1/2017
SUBMITTTED BY THE RESPONDENT BEFORE THE
RDO, THALASSERY.
Exhibit P13 TRUE COPY OF FIR DATED 14/12/2017 IN
CC.NO.72/2018 BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE'S COURT, PAYYANNUR.
