M.G.John vs Nagarasabha on 26 November, 2009

Kerala High Court
M.G.John vs Nagarasabha on 26 November, 2009
       

  

  

 
 
  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.
                  ----------------------------------------
                    W.P.(C).No.34032 OF 2009
                      --------------------------------
          Dated this the 26th day of November 2009
          ----------------------------------------------------------
                               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

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