IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 9 of 2010(O)
1. SHAJAN,S/O.JOSEPH,AGED 41,THOTTUPATTU
... Petitioner
2. RAJU JOHN,S/O.JOHN,AGED 41,THOYALIL
3. JOSHYA.CHEMPARATHY,S/O.AUGUSTINE,AGED
Vs
1. JOSEPH,S/O.ULAHANNAN,AGED 67,
... Respondent
2. PAILY,S/O.ULAHANNAN,AGED 73,
3. THOMMAN PAILY @RAJU,S/O.PAILY,AGED 40,
For Petitioner :SRI.K.JAYAKUMAR.K (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/09/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.9 of 2010
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Dated this 27th day of September, 2010
JUDGMENT
Petitioners, pendente lite transferees have filed this
petition challenging Ext.P8, order by which learned Munsiff has
directed implementation of the order of mandatory injunction
passed on I.A.No.488 of 2007 with police assistance. Respondent
No.1 filed a suit for injunction against respondent Nos.2 and 3 for
enforcement of his right of way along plaint B schedule way to
the plaint A schedule belonging to them. Along with the
institution of suit, respondent No.1 filed application for
temporary injunction and an interim order of injunction was
passed restraining respondent Nos.2 and 3 from causing
obstruction to the user of the said pathway. Advocate
Commissioner inspected the property and submitted report
stating about existence of plaint B schedule pathway as pleaded
by respondent No.1. Later there was some attempt on the part of
respondent Nos.2 and 3 or somebody else on their behalf to
interfere with plaint B schedule pathway and thereon, respondent
No.1 filed I.A.No.488 of 2007 for an order of mandatory
injunction claiming that his only access to plaint A schedule is
O.P(C).No.9 of 2010
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through plaint B schedule way and obstruction caused to it has
affected his access to plaint A schedule. Learned Munsiff allowed
that application. Accordingly, there was an order of mandatory
injunction directing respondent Nos.2 and 3 to restore the
pathway to its original position. Respondent Nos.2 and 3
challenged the order of prohibitory and mandatory injunction in
C.M.A.Nos.39 and 40 of 2007. Learned District Judge confirmed
the order of prohibitory injunction but directed that claim
regarding mandatory injunction can be decided along with the
suit. Respondent No.1 challenged that order in this court in
W.P.C.No.26789 of 2009 and this court by judgment dated
November 20, 2009 set aside the order of learned District Judge
and directed learned District Judge to consider C.M.A.No.39 of
2007 afresh. Learned District Judge considered the appeal and
confirmed the order passed by learned Munsiff on I.A.No.488 of
2007 (allowing mandatory injunction). That order became final.
Thereafter there was delay in learned Munsiff executing the
order on I.A.No.488 of 2007. Aggrieved, respondent No.1 filed
I.A.No.138 of 2010 for implementation of the order of mandatory
injunction on I.A.No.488 of 2007 and since respondent No.1
thought that the matter is being delayed he approached this
court with W.P.C.No.2144 of 2010. This court by judgment dated
O.P(C).No.9 of 2010
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May 24, 2010 directed learned Munsiff to enforce the order of
mandatory injunction on I.A.No.488 of 2007. Since the Advocate
Commissioner reported that there was some obstruction by 3rd
parties in executing the order on I.A.No.488 of 2007, learned
Munsiff has issued Ext.P8, order to enforce the order of
mandatory injunction with the assistance of police. Petitioners
who purchased the property from respondent Nos.2 and 3
pendente lite filed applications for their impleadment in the suit,
to stay execution of order for restoration of the disputed pathway
and proposing that a road laid by them in connection with
development of the property purchased by them could be used by
respondent No.1 in settlement of his claim. Learned Munsiff has
allowed the application for impleadment but dismissed
I.A.No.1496 of 2010 for stay of operation of order on I.A.No.488
of 2007. Hence this writ petition. Learned Senior Advocate
appearing for petitioners contends that it was only on 07-09-2010
that petitioners were impleaded in the suit and they purchased
the property from respondent Nos.2 and 3 unaware of the
pending litigation or the right sought to be enforced by
respondent No.1 through plaint B schedule. Learned counsel has
produced documents to show that petitioners have developed the
property purchased by them from respondent Nos.2 and 3 and
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that in settlement of the claim made by respondent No.1, he
could be permitted to use the road that has been laid by them. It
is also contended by learned Senior Advocate that if the order of
mandatory injunction on I.A.No.488 of 2007 is to be enforced, it
would become necessary to dig up the property at a depth of
about 15 meters to mark out the pathway and that would involve
much hardship to the petitioner. In these circumstances learned
counsel prayed that Ext.P8, order passed by learned Munsiff on
I.A.No.138 of 2010 ordering police assistance for enforcement of
the order of mandatory injunction may be set aside and learned
Munsiff may be directed to pass appropriate orders on Ext.P9,
application where petitioners have made an alternative proposal
for the benefit of respondent No.1. A further prayer is that learned
Munsiff may be directed to enforce Section 89 of the Code of Civil
Procedure, 1908 (for short, “the Code”) for settlement of the
dispute. It is also prayed that in the meantime further proceedings
pursuant to Ext.P8, order may be kept in abeyance.
2. Learned counsel for respondent No.1 contends that
whatever that transpired at spot was with the knowledge of
petitioners and that petitioners cannot now wash off their hands
claiming that they were unaware of pendancy of litigation.
Learned counsel states that when W.P.(C).No.26789 of 2009 was
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pending in this court one of the petitioners had even taken part in
the mediation that took place at the mediation center of this court
which did not fructify. Petitioners have purchased the property
from respondent Nos.2 and 3 pendente lite, and hence petitioners
are not entitled to seek any relief as prayed for. It is also
contended that so far as enforcement of the order on I.A.No.488 of
2007 is concerned, that has become final by the judgment of this
court in W.P.(C).No.2144 of 2010 directing learned Munsiff to
enforce the stay order even before going for trial of the suit.
Learned counsel contends that at this stage there is no scope for
invoking Section 89 of the Code as requested by learned Senior
Advocate.
3. It is not in dispute that it is after the impugned orders
were passed that petitioners purchased property from respondent
Nos.2 and 3 through which disputed B schedule way existed. It is
not disputed that Advocate Commissioner inspected the property
immediately after institution of the suit and when he visited the
property a second time consequent to I.A.No.488 of 2007 he could
not find the said pathway. It follows that in the meantime the
pathway was interfere with either by respondent Nos.2 and 3 or,
somebody else on their behalf. It is in these circumstances that
learned Munsiff allowed I.A.No.488 of 2007 and that order has
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become final. The further fact which I have to bear in mind is that
as per report submitted by the Advocate Commissioner respondent
No.1 has no other means of access to the plaint A schedule except
plaint B schedule. Now the question is whether grievance of
petitioners is required to be redressed in this proceeding.
4. The Supreme Court in Marirudraiah and Ors. Vs. B.
Sarojamma and Ors. (2009(3) Supreme 309) has stated that
courts are not supposed to encourage pendente lite transactions
and regularise their conduct by showing equity in their favour. A
learned Single Judge of this court in Ananda Pai Vs. Gopala Pai
(2010(1) ILR Kerala 715) held that pendente lite transferee is
not entitled to get an order of injunction against the plaintiff and
that any such procedure is prima facie malafide. As I stated,
petitioners purchased the property from respondent Nos.2 and 3
admittedly after the order of temporary injunction was passed in
the case. If that be so, petitioners could very well see existence of
plaint B schedule way the Advocate Commissioner found at the
time of first inspection. Respondent No.1 states that one of
petitioners had taken part in the mediation that took place during
the pendancy of W.P.(C).No.26789 of 2010 in this court. I find no
reason why I should reject that assertion of learned counsel. If that
be so, it is idle for petitioners to contend that they were unaware of
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the pendancy of the suit or order of mandatory injunction whatever
be the assertion of respondent Nos.2 and 3 may have made in the
assignment deeds in favour of petitioners that there is no
encumbrance over the property. It follows that petitioners are
bound by the orders passed by the learned Munsiff pertaining to
plaint B schedule.
5. Then the next question is whether at this stage the
alternative way suggested by petitioners has to be accepted and
further proceedings for enforcement of the order on I.A.No.488 of
2007 is to be stayed. This court while disposing of
W.P.(C).No.26789 of 2010 has referred to the flagrant violation of
the order of prohibitory injunction indulged by respondent Nos.2
and 3 or his men whoever they may be. Paragraph 5 of the
judgment in W.P.(C).No.26789 of 2010 describes attempts made by
respondent Nos.2 and 3 or their men to violate the order of
temporary injunction. When there was delay in enforcement of the
order of mandatory injunction, this court by judgment in W.P.(C).
No.2144 of 2010 interfered and directed learned Munsiff to enforce
the order of injunction without waiting for trial of the suit.
6. A request is made to refer the dispute for arbitration
under to Section 89 of the Code. Respondent No.1 is not agreeable
to any such alternative mode of redressal of the dispute. The
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Supreme Court in V.K.Enterprises Vs. Shiva Steel (2010(3)
KLT S.N 75 – Case No.82) has stated that unless the parties to
the litigation assent, question of arbitration did not arise. On the
face of resentment of respondent No.1 to arbitration, no resort
could be had to Section 89 of the Code.
7. Then the next question is whether respondent No.1
should be asked to be satisfied with the alternative way suggested
by petitioners. Learned counsel for respondent No.1 states that
respondent No.1 is not agreeable for that course. He has obtained
favourable orders in this suit. In such a situation respondent No.1
could not be compelled to agree for the alternative way suggested
by the petitioners. In the circumstance the reliefs requested for by
petitioners cannot be allowed.
This petition fails. It is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-