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RADHA UNNITHAN, W/O.GOPALAKRISHNAN versus VISWANATHAN UNNITHAN, S/O.DAMODHARAN

High Court of Kerala

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RADHA UNNITHAN, W/O.GOPALAKRISHNAN v. VISWANATHAN UNNITHAN, S/O.DAMODHARAN - WP(C) No. 15781 of 2006(D) [2006] RD-KL 1554 (9 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 15781 of 2006(D)

1. RADHA UNNITHAN, W/O.GOPALAKRISHNAN
... Petitioner

Vs

1. VISWANATHAN UNNITHAN, S/O.DAMODHARAN
... Respondent

For Petitioner :SRI.S.V.BALAKRISHNA IYER

For Respondent :SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :09/11/2006

O R D E R

M.SASIDHARAN NAMBIAR, J.

W.P.C.NO.15781 OF 2006 (D) and W.P.C.NO.15783 OF 2006 (D)

Dated this the 9 th day of November, 2006.



JUDGMENT

Petitioners in W.P.(c)15783/06 are plaintiffs in O.S.247/05 and defendants in O.S.249/05, on the file of Munsiff Court, Mavelikkara. O.S.247/05 was instituted on 1.7.05 seeking a decree for permanent prohibitory injunction. An order of temporary injunction was sought in an application (I.A.1294/05) filed under Order XXXIX Rule 1 of C.P.C. An exparte order of temporary injunction was also granted. A commissioner was appointed at the instance of petitioners. Commissioner inspected the property on 1.7.05 itself and filed Ext.P1 report and Ext.P2 sketch. Respondent filed O.S.249/05 later on 6.7.05. A commissioner was appointed in that suit also. Commissioner submitted report and sketch. O.S.249/05, was filed seeking a decree for declaration of right of easement by prescription through plaint C schedule path way, which passes through the property of the petitioners, namely, plaint A schedule property in O.S.249/05. Plaint schedule property in O.S.247/05 is the very same A schedule property. The property of respondent is situated on the north and west of the property of the petitioners. In Ext.P2 sketch, commissioner has demarcated the property W.P.C.NO.15781 OF 2006 (D) 2 of respondent as plots A2 and A1, which respectively lies on the north and west of the plaint B schedule property, which is the property of the petitioners. Respondent's case is that there is a way from the western A1 plot to northern A2 plot and it passes through the B schedule property of the petitioners which lies in between the two plots. According to petitioners, there was no such way at all and their properties are surrounded by a fence. Learned Munsiff heard I.A1294/05, the application for temporary injunction filed by the petitioner and dismissed the same under Ext.P4 order dated 23.12.05. Subsequently I.A.No.1335/05 filed by respondent, seeking an order of mandatory injunction to restore the way in O.S.249/05 was heard . It was allowed under Ext.P3 order dated 22.2.06. Learned Munsiff granted an interlocutory mandatory injunction directing petitioners to remove the fence which cause obstruction to plaint C schedule path way, passing through plaint B schedule property in O.S.249/05. Petitioner challenged Ext.P3 and P4 orders separately in C.M.A 1/06 and C.M.A 11/06. Learned Additional District Judge, Mavelikkara, heard both appeals together and dismissed the same by Ext.P5 common order. Ext.P3 and P4 orders were confirmed. It is challenged in these petitions filed under Article 227 of Constitution of India. W.P.C 15781/06 is filed challenging confirmation of Ext.P4 order and W.P.C 15783/06 is filed challenging confirmation of Ext.P3 order.

2. Learned counsel appearing for petitioners and respondent were W.P.C.NO.15781 OF 2006 (D) 3 heard. The arguments of the learned counsel appearing for petitioners was that learned Munsiff clubbed the two appeals against orders passed on different materials and the learned District Judge should not have considered the evidence in one appeal on the other and by clubbing the appeals prejudice was caused to petitioners. It was argued that courts below should not have granted an interim mandatory injunction, which exactly is the third relief sought for in O.S.249/05, which could have been granted only on establishing the right, after evidence was adduced, and virtually by Ext.P5 order confirming Ext.P3 order, the third relief sought for in the suit was granted by the courts below and it is a grave error committed by the court and is to be corrected in exercise of the supervisory jurisdiction of this court under Article 227 of Constitution of India. Relying on the decision of Apex Court , it was argued that guide lines formulated by the Apex court were not properly considered by courts below while granting the interlocutory mandatory injunction. It was also argued that on 1.7.05 when the commissioner inspected the property there was a fence on the north and west of the B schedule property and it was only on 6.7.05, the suit for declaration was filed and in such circumstances, courts below should not have granted an interim mandatory injunction to provide a way, which was not available to the respondent on the date of filing of O.S.249/05. It was also argued that respondent is entitled to get a decree for declaration or injunction only on establishing the right of easement by prescription and in W.P.C.NO.15781 OF 2006 (D) 4 the pleading there is no case for the respondent that he or his predecessors have been using plaint C schedule path way as of right which is mandatory to get the decree and by walking along an unfenced property for a number of years alone no right of easement by prescription could be claimed unless it was being used as of right. Learned counsel appearing for the respondent argued that O.S.247/05 was filed by the petitioner suppressing true facts and after putting up a fence, to obstruct the right of way and as is clear from Ext.P1 report submitted by the commissioner, a way was in existence from the western plot to the northern plot through the B schedule property and respondent has been using that pathway, openly and without obstruction for the requisite number of years and courts below rightly found that respondent has been using that way. Relying on the decision of this court in

Appukuttan Nair Vs. Hydrose (2004 (1) KLT 350 ) it was argued that court is

competent to grant interim mandatory injunction even if it is to restore the status quo anterior to the date of the suit and when it was found that before the filing of the suit a fence was put up obstructing the way the relief was rightly granted. Relying on the decision of the Apex court in Ranjeet

Singh Vs. Ravi Prakash (2004 AIR SCW 4221) it was argued that when courts

below found a prima facie case in favour of respondent and that suppressing true facts petitioner approached the court by setting up a false case and that too after putting up a fence and obstructing the right of way, courts were satisfied that an interim mandatory injunction is to be granted and in such a W.P.C.NO.15781 OF 2006 (D) 5 case no interference is warranted in exercise of the supervisory power under under Article 227 of Constitution of India. It was also argued that the order was warranted as no other way is available to the northern plot and hence the petitions are only to be dismissed.

3. There is substance in the submissions of the learned counsel appearing for the petitioners that the trial court should have disposed of both the applications for temporary injunction and interim mandatory injunction together and not by two separate orders on two different dates. The appellate court heard the appeals together and disposed them by a common order appreciating the materials available in both the petitions. In O.S.249/05 respondent is claiming a right of way by easement of prescription along the suit property in 247/05. Petitioners are claiming a decree for injunction over their property denying any such right of way. Respondent could succeed in getting a decree only on establishing that he or his predecessors have been using the alleged way as claimed, which passes through the property of the petitioner, openly, peaceably and as of right and without obstruction continuously for the requisite years. There is also force in the submission of the learned counsel appearing for petitioners that the interim mandatory injunction granted by the court below is the third relief sought for in O.S.249/05, which could ultimately be granted by the trial court on satisfying that respondent established the right of way of easement W.P.C.NO.15781 OF 2006 (D) 6 by prescription. Virtually under Ext.P3 order confirmed by Ext.P5 order, respondent was granted the third relief sought for in his plaint before even recording any evidence.

4. True, a trial court is competent to grant interlocutory mandatory injunction under special circumstances. But court must consider the question whether granting the injunction would carry a higher risk of injustice associated with the grant of mandatory injunction than refusing it. If such an injunction is granted and at the trial the party does not succeed in establishing the right, the order will work out as injustice. Normally court shall not grant an order of interlocutory mandatory injunction unless a high degree of prima facie case and higher risk of injustice, if the relief is not granted, is established.

5. Essentially interlocutory order of injunction is an equitable relief. Granting or refusing of the relief shall rest in exercise of sound judicial

discretion. Apex Court in Dorab Cawsji Warden Vs. Goomic sorab Warden

(AIR 1990 SC 867) laid down the guidelines to be applied while deciding the question whether the relief is to be granted or not. Though the guidelines are neither exhaustive nor complete nor absolute, as held by their lordships, applying them as prerequisites for the grant or refusal of the relief would be sound exercise of judicial discretion. The guidelines laid down reads as follows:- W.P.C.NO.15781 OF 2006 (D) 7

"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 fails to establish this 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 ".

6. The court has to bear in mind that the granting of interlocutory mandatory injunction is an exception. When respondent approached the court seeking a decree for declaration of right of way by easement by prescription, unless court is absolutely satisfied that at least all the necessary ingredients to grant a decree for declaration are pleaded, it is not a sound exercise of discretion to grant an interlocutory order. Moreover the materials available establish that one week prior to the institution of O.S.249/05, petitioner did approach the court by filing O.S.247/05, seeking decree for injunction. It was also established byExt.P1 report submitted by W.P.C.NO.15781 OF 2006 (D) 8 the commissioner, that when commissioner inspected the property on 1.7.05, there was a fence on the north and west of the property of petitioners which is the suit property in O.S.247/05. It is clear from Ext.P3 and P5 orders that neither the trial court nor the appellate court considered the effect of want of proper pleading on the easement by prescription. As held by this court in

Moideen Haji Vs.Kader (1964 KLT 904) passage over the unfenced paramba

for more than thirty years, without obstruction, by itself is not sufficient to establish that it was as of right. It is for the person setting up a right of easement by prescription to specifically plead that he or his predecessor has been using the property as a way for the requisite number of years not only without obstruction but as of right. The plaint in O.S.249/05 does not contain an averment that respondent or his predecessors were using the property as a way as of right. In the absence of that vital pleading it cannot be said that respondent has a strong case for trial or that he had a higher degree of prima facie case to grant an interlocutory order of mandatory injunction, as has been granted by the courts below. It is clear that neither the trial court nor the appellate court exercised the sound discretion before granting the order of interlocutory mandatory injunction, which is to be corrected under the supervisory jurisdiction of this court under Article 227 of Constitution of India. W.P.C.NO.15781 OF 2006 (D) 9 It is clear from the materials considered by the courts below that either on the date of filing of the O.S.249/05 or some days prior to that date, the way claimed by respondent was not in existence, as a fence was put on the northern and western boundaries of the property of petitioner. In such circumstances, unless a very strong prima facie case is established that respondent has a right of easement by prescription over that property, it is not proper to grant an order of interlocutory mandatory injunction, which is virtually the third relief sought for in O.S.249/05. It is more so because the effect of the order granted by the courts below was not preserving or restoring the status, of the last non contested status which preceded the pending controversy, till the final decision is taken in the suit. Therefore Ext.P5 order confirming Ext.P3 order is bad in law. Ext.P3 and P5 orders are set aside. Learned Munsiff is directed to try both the suits jointly and dispose them as expeditiously as possible. Parties are directed to maintain status quo reported by the commissioner before the trial court, till the disposal of the suits. M.SASIDHARAN NAMBIAR,

JUDGE

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Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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