IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 25303 of 2007(K)
1. JOSE MATHEW,
... Petitioner
Vs
1. MUHAMMED RAWTHER,
... Respondent
2. GOPINATHAN,
3. PONNAMMA GOPINATHAN,
For Petitioner :SRI.LIJI.J.VADAKEDOM
For Respondent :SRI.V.K.PEERMOHAMED KHAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :28/09/2007
O R D E R
M.N.Krishnan, J.
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W.P(C).No.25303 of 2007
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Dated this the 28th day of September, 2007.
JUDGMENT
Heard both sides.
2. This Writ Petition is filed seeking a direction to set aside
Ext.P9 and for other reliefs. Brief facts would reveal that it is the
case of the plaintiff that there was an order of injunction passed
by the court restraining the defendants from doing particular act.
It is submitted that in gross violation of the order of the court,
the defendants committed act of trespass and thereby are liable
to be proceeded against under Order 39 Rule 2A of C.P.C. and for
such an action, a petition is already pending before the trial
court.
2. Meanwhile, the plaintiff also moved an application for an
interim mandatory injunction directing the defendants to restore
the property into its original position, which was in existence at
the time of subsistence of the order of injunction. I am informed
that violation of injunction petition is still pending before court
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and evidence is not taken. The interim mandatory injunction
application had been dismissed by the court on the ground that
better evidence is necessary and it can be done only after the
trial of the case.
3. In this case relief of interim mandatory injunction is
sought on the ground that the possession of the plaintiff has been
interfered with by the defendants on account of their act, which is
gross violation of the order of injunction. In such cases, it is
always the duty of the court not to permit any party to take law
into their own hands and do whatever they like. In such a
situation, the court always is permitted to direct the party, who
had committed the act of violation of injunction, to restore the
property into its original position, which was in existence at the
time of the alleged violation of the order of the court. The other
types of interim mandatory injunctions are in a case where unless
such order is given there will be extremely difficult for the
survival of the party and therefore, the court is given the power
in exceptional cases to grant the relief of interim mandatory
injunction.
4. So far as this case is concerned, if there is violation of
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the order of the court, it is rather obligatory on the part of the
court to see that the possession as on the date before the alleged
act of violation is restored. So, in such a situation, the court has
to necessarily enter into a finding whether there has been
violation of the order of the court. If the court is finding that
there is violation of the order of the court, then the court shall
direct the persons, who had committed the act of violation, to put
the property into its original position. But in this case, the
petition for violation of the interim injunction is still pending.
5. I am informed that the matter is also posted for trial in
the list. I do not want to stay the trial of the suit. But I make it
very clear that the court below shall proceed independently with
violation of injunction application separately. In case the court
finds that there is violation of the order of the court, then it is
upto the court to direct the party, who had committed act of
violation, to restore the property into its original position. So, I
dispose of the Writ Petition as follows:
(i) The court below is not prevented from proceeding with
the trial of the case.
(ii) The court below is directed to consider the violation of
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interim application separately and not by taking evidence along
with the suit and dispose of the matter and if it is found that
there is violation of the order of the court, the court is at liberty
to pass orders directing the person, who has committed violation,
to restore the property into its original position and the other
consequences, which one has to face when there is breach of the
order of the court.
(iii) The court can proceed independently or simultaneously
but shall not unnecessarily protract the decision in the violation
of injunction petition and it shall try to do it before it finally
dispose of the case.
Writ Petition is disposed of accordingly.
M.N.Krishnan,
Judge.
ess 28/9