IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34032 of 2009(O)
1. M.G.JOHN,
... Petitioner
Vs
1. NAGARASABHA,CHENGANNUR,
... Respondent
2. KERALA GOVERNMENT,
3. DISTRICT SURVEY SUPERINTENDENT,
4. TAHSILDAR,CHENGANNUR.
5. TALUK SURVEYOR,CHENGANNUR.
For Petitioner :SRI.SATHISH NINAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :26/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.34032 OF 2009
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Dated this the 26th day of November 2009
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JUDGMENT
The writ petition is filed seeking the following
reliefs.
i) To set aside Ext.P10 order dated 13/11/2009
and dismiss I.A No.1515/2009 in O.S No.211/2009 on the
files of the Munsiff Court, Chengannur.
ii) To issue such other appropriate writ order or
direction which this Hon’ble Court may deem just and fit
under the circumstances of the case.
2. Petitioner is the plaintiff in O.S No.211 of 2009
on the file of the Munsiff Court, Chengannur. Suit is for
perpetual prohibitory injunction, and petitioner is the
plaintiff. First respondent is the additional 5th defendant and
other respondents, defendants 1 to 4 in the suit. In the suit,
petitioner/plaintiff sought for a perpetual prohibitory
injunction to restrain the defendants from interfering with
his possession and tampering with the boundaries of the
plaint property. The local authority, the first respondent
W.P.(C).No.34032 OF 2009 Page numbers
herein, moved an application for its impleadment and that
being allowed, it was impleaded as additional 5th defendant
in the suit. An application for interim injunction as identical
to the main relief canvassed in the suit after hearing both
sides was dismissed by the learned Munsiff vide Ext.P7
order. The facts presented in the case disclose that
previously the plaintiff had filed another suit against the 5th
respondent and another seeking a perpetual prohibitory
injunction identical to the reliefs sought in the present suit,
pending suit some compromise terms were arrived between
plaintiff and the local authority in the matter of putting up of
the boundary wall separating his property from the adjacent
Boys High School compound. Retracting from the
agreement so arrived, it is stated, the plaintiff withdrew the
earlier suit. The learned counsel for the first respondent
would state that the present suit was filed during the
pendency of the earlier suit, but, without impleading the
local authority as one among the defendants canvassing the
same relief in the previous suit. After dismissal of the
interlocutory application moved by the plaintiff vide Ext.P7
W.P.(C).No.34032 OF 2009 Page numbers
order, the first respondent/additional 5th defendant moved
an application for interim mandatory injunction for carrying
out the measurement of the plaint property and fixation of
the survey stone on its boundary with the assistance of the
survey officials. Ext.P8 is the copy of that application. That
application was objected to by the plaintiff . Ext.P8(a) is the
copy of the objections. The learned Munsiff after hearing the
counsel on both sides allowed Ext.P8 application vide
Ext.P10 order. Propriety and correctness of that order is
challenged in the writ petition invoking the supervisory
jurisdiction vested with this court under Article 227 of the
Constitution of India.
3. I heard the counsel on both sides. Perusing
Ext.P10 order, it is seen, the court has allowed the interim
mandatory injunction sought for by the additional
5th defendant for measuring out the plaint property, fixing its
boundaries and installing survey stones considering what
transpired earlier in the previous suit. It is also seen that the
dismissal of the interlocutory application for injunction
moved by the plaintiff also weighed with the court in
W.P.(C).No.34032 OF 2009 Page numbers
concluding that additional 5th respondent is entitled to the
interim mandatory injunction applied for. I am afraid the
reasons taken by the court for the grant of interim
mandatory injunction are not proper and correct. There is
no prohibition against granting an interim mandatory
injunction by the court. However, the court must be
satisfied that the matter is emergent and its immediate
assistance is required if the injunction is of a mandatory
character. A mandatory injunction is an order compelling
the opposite party to restore things to the condition in which
they were when the petitioner’s complaint was made. It is
granted only when the court is satisfied that injury is
immediate and pressing and irreparable, and clearly
established by the materials placed that no other equitable
remedy is available to undo the mischief which is sought to
be prevented. On a mere asking for whatever be the
contumacious conduct of the opposite party the court
cannot pass an order of interim mandatory injunction.
Unless the essential requirements for sanctioning such an
order is made out by the facts and circumstances presented
W.P.(C).No.34032 OF 2009 Page numbers
no such injunction can be ordered. What is noticed in the
present case is that on dismissal of the interlocutory
application moved by the plaintiff, whatever be the reasons
thereof, in his suit for injunction on a request made by local
authority the court has passed Ext.P10 order for fixation of
the boundaries separating the plaintiff’s property with a
nearby high school compound and fixing of survey stones
demarcating the boundaries of the two properties, by
issuing an order in mandatory form to the fourth defendant,
namely, Thahsildar, Chengannur. In effect the additional
fifth defendant, local authority, by filing Ext.P8 application
sought for an order in the form of interim mandatory
injunction as against a co-defendant, the fourth defendant,
to measure out the two properties, fixing boundaries and
then planting of survey stones on the boundaries. Strangely
enough, no material had been placed before the court as to
particulars of the property covered by the high school
compound and no relief claimed even by way of counter
claim in a written statement for fixation of boundaries of
that compound with that the adjacent property belonging to
W.P.(C).No.34032 OF 2009 Page numbers
the plaintiff, leave alone fixing of the survey stones on
boundaries of the properties. Ext.P10 order passed by the
court below on the basis of Ext.P8 application which is in the
nature of the mandatory injunction against a co-defendant
compelling him to perform certain acts that too in respect of
fixing of the boundaries of two properties in respect of one
of which no material was placed before the court, without
any relief thereof being canvassed in the suit by the
defendant by way of counter claim in its written statement,
that too in the suit for perpetual prohibitory injunction filed
by the plaintiff in respect of plaint property alone as against
the defendants, is patently erroneous and unsustainable in
law.
4. Determination of the question relating to
interim injunction which require the presentation of a prima
facie case for such discretionary relief, is based on
appreciation of the materials tendered without any
adjudication on the disputed questions presented in the
case. View taken on such application is open to modification
once evidence is let in the case. Similarly what transpired in
W.P.(C).No.34032 OF 2009 Page numbers
a previous suit may be relevant in considering whether the
discretionary relief of interim injunction has to be granted or
not. But a decree of injunction in a suit stands on a different
footing, the legal right of the plaintiff to get that relief, as
envisaged under Section 38 of the Specific Relief Act. So
much so, the interim mandatory injunction given to the
additional 5th defendant vide Ext.P10 order for the reasons
adverted to by the learned Munsiff cannot be sustained.
Ext.P10 order is set aside and Ext.P8 application shall stand
dismissed. However I make it clear, setting aside of Ext.P10
order will not stand in the way of the additional 5th
defendant in seeking appropriate relief in the suit setting
forth a counter claim, provided time limit for delivering its
defence has not been over, subject to the procedure covered
by Order 8 Rule 6A of the Code of Civil Procedure, if so
advised. Writ petition is closed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
vdv P.A TO JUDGE
