Madras High Court
Chinnayyan Nadar vs Selvi on 10 July, 2006
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF THE MADRAS HIGH COURT DATED: 10/07/2006 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI C.R.P.Nos.437 of 2004, C.R.P.Nos.438 of 2004 and C.M.P.No.2314 of 2004 1.Chinnayyan Nadar 2.G.Thomas Nadar ... Appellants Petitioners in both the C.R.Ps. Vs. 1.Selvi 2.Dhas 3.C.Thankappan ... Respondents in both the C.R.Ps. Revision Petitions filed under Article 227 of the Constitution of India, against the order and decreetal order made in I.A.Nos.190 and 230 of 2004 in C.M.A.No.14 of 2004 dated 26.08.2004 on the file of the Subordinate Judge, Kuzhithurai. !For Petitioners ... Mr.K.Sreekumaran Nair ^For Respondents ... Mr.T.V.Sivakumar, for Mr.G.R.Swaminathan. :ORDER
The defendants 1 and 2 in the suit have filed the present revision petitions. The respondents have filed the suit for declaration in respect of the right to use the 'C' Schedule property as a path way to reach the 'B' Schedule well through 'A' schedule property and consequently, to restrain the defendants from causing any obstruction and also a decree of mandatory injunction directing the first defendant who is the first petitioner in the revision petition to remove the granite basement wall obstruction made within the same 'C' schedule pathway. The case of the plaintiffs is the 'c' schedule property is a pathway which is the subject matter of the suit which is in common use of plaintiffs and defendants and also 'A' schedule property belonging to the plaintiff and 'B' Schedule is the well to which the plaintiffs have right to use. Pending suit, the plaintiffs have filed Interlocutory Application in I.A.526 of 2002 praying for an order of interim injunction and the Trial Court has allowed the Interlocutory Application after contest by an order dated 08.04.2004 against which the defendants namely, the petitioners herein have filed appeal in C.M.A.No.14/2004 which is pending before the learned Subordinate Judge, Kuzhithurai. Pending the appeal the defendants/appellants who are the petitioners herein have filed I.A.No.190/2004 praying for an order of interim stay of operation of the order of injunction passed by the Trial Court dated 08.04.2004 in I.A.No.526/2002 in O.S.No.452 of 2002. The plaintiffs who are respondents in C.M.A.No.14 of 2004 have filed I.A.No.230 of 2004 before the first Appellate Court and pending C.M.A praying for a direction against the respondents who are the petitioners herein in the Civil Revision petition to remove the obstruction wall erected in the plaint 'C' schedule pathway by misusing the exparte interim stay order obtained in I.A.No.190/2004. The Appellate Court has passed the common order in both the I.As. on 26.08.2004 by dismissing the I.A.No.190/2004 filed by the defendants who are the revision petitioners herein and allowing the I.A.No.230/2004 filed by the plaintiffs who are the respondents in the Civil Revision Petition, pending the C.M.A. It is against the said orders the defendants have filed C.R.P.Nos.437 and 438 of 2004 respectively. Out of which C.R.P.No.437 arises from the order in I.A.No.190 of 2004 and C.R.P.No.438 that arises from the order in I.A.No.230 of 2004.
2. When the matters came up for admission this Court by an order dated 20.12.2004 has granted status quo as on 10.12.2004 to be maintained.
3. I have heard the learned counsel for the petitioner as also the learned counsel for the respondents.
4. Mr.K.Sreekumaran Nair, learned counsel appearing for the petitioner in both the revision petitions would submit that both the I.As. against which the Civil Revision petitions are filed are arising from the C.M.A.No.14 of 2004 which is pending before the Appellate Court and that C.M.A. itself is from the order of interim injunction granted by the Trial Court and while admitting the Civil Revision petitions this Court has already granted status quo to be maintained and according to him, in view of such a situation a direction can be given to the Appellate Court to dispose of the appeal.
5. According to the learned counsel for the petitioners, when once the suit itself is for the purpose of the right of declaration of the suit pathway in 'C' schedule property and also for a mandatory injunction to remove the wall stated to have been put up by the defendants across the pathway and the suit itself is yet to be taken up for trial, pending appeal from the Interlocutory application and on an application taken out by the plaintiffs for removing the wall which is the subject matter of the prayer of the mandatory injunction in the suit and granting of that prayer by the Appellate Court in effect amounts to granting decree while the trial itself has not commenced. The learned counsel also would contend that the Supreme Court has time and again laid down the law stating that interim mandatory injunction cannot be granted as a matter of course and the same can be only in exceptional cases.
6. The learned counsel has relied upon the judgment of the Hon'ble Apex Court rendered in Metro Marins and another Vs. Bonus Watch Co. Pvt Ltd., and others reported in 2004 (4) CTC 712 which in its turn has relied upon the earlier Supreme Court judgment rendered in Dorab Cawasji Warden Vs. Coomi Sorab Warden, 1990 (2) SCC 117 reported in 1990 (2) SCC 117 and therefore, according to the learned counsel, the passing of the interim order of mandatory injunction by the Appellate Court which is the subject matter of the issue before the Trial Court is not legal.
7. On the other hand Mr. T.V.Sivakumar, learned counsel appearing for the respondents while admitting all the factual situations and also the judgment of the Supreme Court as relied upon by the learned counsel for the petitioners, would submit that instant case in which the Appellate Court has granted an order of mandatory injunction falls within the category of the exceptional circumstances.
8. The learned counsel would submit that it is the case of the respondents/plaintiffs who were the applicants in I.A.No.230/2004 that after obtaining an order of stay of injunction passed in I.A.No.526/2002 before the Appellate Court in I.A.No.190/2004 in C.M.A.No.14/2004 on 09.06.2004, the defendants/revision petitioners taking advantage of the said stay order have closed the 'C' schedule path way by erecting the wall on 16.06.2004 and thereby obstructed the access to the plaintiff to reach the well and therefore, according to the learned counsel for the respondents, it amounts to misuse the order passed in I.A.No.190 of 2004 in C.M.A.No.14 of 2004 and the same should be taken as an exceptional case and therefore, the Appellate Court was well within its rights to pass such an order of mandatory injunction. It is clear in this case that after obtaining stay in I.A.No.190 of 2004 in C.M.A.No.14 of 2004 and without serving notice on the respondents herein, the petitioner has done such an act, it should be deprecated and closing of the 'C' schedule pathway by erecting wall on 16.06.2004 will amount to abuse of process of law.
9. A reference to the common order of the Sub Court impugned in these revision petitions would show that the learned Judge has proceeded on the presumption and belief that the defendants have put up the granite wall between 09.06.2004 to 16.06.2004 having obtained an order of stay in I.A.No.190/2004 on 09.06.2004 and without filing batta till 16.06.2004 and therefore, it amounts to mala fide intention and it is, on that basis I.A.No.230/2004 was allowed. The plaint prayer is in the following terms.
"A. Plaintiffs be given a decree for declaration in their favour by declaring the right of plaintiffs to use plaint C schedule property as path way in order to reach plaint B schedule well and the panchayath road from plaint A schedule property and consequently restrain the defendants and their agents from causing any kind of obstruction in the said pathway.
B. A decree of mandatory injunction may be granted in favour of the plaintiffs and direct the 1st defendant to remove the granite basement wall obstruction made within some portions plaint C schedule property at his costs. C. Plaintiffs be allowed to realise the costs of this suit from the defendants.
D. Such other reliefs which the Court deems fit and proper for the ends of justice may also be granted."
It shows that even at the time of filing of the suit there has been a granite basement wall obstruction made in the 'C' schedule property. The plaint also specifically states in paragraph 6 that "on 23.11.2002, the first defendant and his agents tried to close the plaint 'C' schedule pathway and put up a granite basement on the north-western portion of plaint 'B' schedule property"
10. It is relevant to point out that pending suit an Advocate Commissioner was appointed at the instance of the plaintiffs who after inspection conducted on 29.11.2002 has submitted his report received in the Court on 10.12.2002 in which the learned Advocate Commissioner on inspection in respect of the wall found and gives the following passage in his report "9. rp gl;oifr; brhj;jpd; tlf;fhf jiu kl;lj;jpypUe;J Rkhh; 3 mo> 2mo cauj;jpy; xU fy;fl;L cs;sJ. ,e;j fy;fl;L Rkhh; 15 ehs; gHf;fk; ,Uf;Fk;. ,e;j fy;fl;L 2 ypq;]; mfyk; cz;L. ,e;j fy; fl;ow;F tlf;F khwp cj;njrk; eLg;ghfj;jpy; g[jpjhf fl;lg;gl;oUf;Fk; fUq;fy; fl;oypUe;J 2 ypq;]; tlf;F xU gHf;fKs;s fy;yLf;F cs;sJ. me;j fy; mLf;fpd; neuhf fpHf;Fk;> nkw;Fk; xU kz; jpuiz cs;sJ. ,e;j kz; jpuizf;F bjw;F gf;fj;jpy; cs;s brhj;ij tpl tlf;F ghfj;jpy; cs;s brhj;J 3 mo cauk; mjpfk; MFk;."
11. Therefore, as per the learned Advocate Commissioner even in December 2002 there has been a wall put up from the basement to the extent of the two to three feet and the Trial Court is yet to decide after trial about the prayer for permanent mandatory injunction to pull down the wall. However, a reference to the counter filed by the petitioners herein in I.A.No.230/2004 in C.M.A.No.14 of 2004 is relevant for deciding the issue. In the counter affidavit, while the petitioners have stated that Ex.A1 partition deed does not contain a pathway for plaint 'B' schedule well allotted in common and therefore, the allegation of the plaintiff that there is a pathway is imaginary and also stating that the description in 'C' schedule itself is erroneous, the petitioners in categorical terms have admitted that they have put up a granite retaining wall constructed over the bund in categorical terms as follows:
"To prevent that genuine action of this respondent the plaintiffs made police complaint against this respondent. The police rightly did not take any action. So they managed to get temporary injunction preventing this respondent from completing the retaining wall construction. These respondents filed this C.M.A and got interim stay order staying the operation of the injunction order. Accordingly, this respondent completed the retaining wall construction without making any invasion on the right of others."
12. Therefore, it should be taken that the petitioners have categorically admitted that only after obtaining the order of stay they have completed the retaining the wall construction.
13. It is in this context, the order of the learned Sub Judge in the impugned order stating that while the order of interim stay was obtained by the petitioners on 09.06.2004 no steps taken to file batta till 16.06.2004 is relevant to be considered. Therefore, the learned Judge has come to the conclusion that by not taking steps to communicate the interim order of stay to the other side, between 09.06.2004 to 16.06.2004, the petitioners have put up the construction of wall which is a mala fide act. By taking into consideration the unassailable factual position that the petitioners have not taken steps after the interim order of stay obtained on 09.06.2004 and have filed the batta only on 16.06.2004 and the factual admission of the petitioners in the counter affidavit as stated above that "accordingly this respondent completed the retaining wall construction without making any invasion on the right of others", show that it is only taking advantage of the order of stay granted by the court below, the petitioners have put up and completed the wall.
14. The question that remains to be considered is as to whether in such circumstances, the conduct of the petitioners would come within the exceptional cases as laid down by the Hon'ble Supreme Court rendered in Dorab Cawasji Warden Vs. Coomi Sorab Warden, 1990 (2) SCC 117 reported in 1990 (2) SCC 117. While dealing with the relief of interim injunction and also stating that except in exceptional cases normally mandatory injunction cannot be granted while the matter has to be decided by the Trial Court the Hon'ble Apex Court has held as follows:
"The relief of interlocutory mandatory injunctions are 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 fail to establish his right at the trial may cause grate 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 grate injustice or irreparable harm".
15. Eliciting the said judgment of the Supreme Court, again the Hon'ble Apex Court in the judgment rendered in Metro Marins and another Vs. Bonus Watch Co. Pvt Ltd., and others reported in 2004 (4) CTC 712 held that while the issue relating to give of the property to a party is yet to be decided by the Trial Court, any interlocutory order passing mandatory direction to hand over possession is not permissible and ultimately held as follows:
"9. Having considered the arguments of the learned counsel for the parties and having perused the documents produced, we are satisfied that the impugned order of the Appellate Court cannot be sustained either on facts or in law. As noticed by this Court in the case of Dorab Cawasji Warden Vs Coomi Sorab Warden (Supra) has held that an interim mandatory injunction can be granted only in exceptional cases coming within the exceptions noticed in the said judgment. In our opinion, the case of the respondent herein does not come under anyone of those exceptions and even on facts it is not such a case which calls for the issuance of an interim mandatory injunction directing the possession being handed over to the respondent. As observed by the learned single Judge the issue whether the plaintiff is entitled for possession is yet to be decided in the Trial Court and granting of any interim order directing handing over of a possession would only mean decreeing the suit even before trial. Once the possession of the appellant either directly of through his agent (caretaker) is admitted then the fact that the appellant is not using the said property for commercial purpose or not using the same for any beneficial purpose of the appellant has to pay huge amount by way of damages in the event of his loosing the case or the fact that the litigation between the parties is a luxury litigation are all facts which are irrelevant for changing the status quo in regard to possession during the pendency of the suit".
16. Therefore, in the cases referred to above, the Hon'ble Apex Court has laid down the law stating that in normal circumstance, interim mandatory injunction cannot be granted before the issue decided by the Trial Court finally except in exceptional cases. In the present case, eventhough it is true that at the time of filing of the suit itself which was in the year 2002 the allegation was that defendants 1 to 2 have put up a basement wall and also the Advocate Commissioner filed a report before the Trial Court on 10.01.2002 showing that at that time the wall was in existence to the extent of 2 to 3 feet stated to have been put up very recently, the petitioners have admitted that after obtaining the order of stay, they have completed the wall. In such circumstances, in my considered view, this has to be taken as an exceptional case. When the issue is as to whether there was any common passage in existence which has to be decided in the suit and also as to whether the defendants are liable to remove the wall put up by them which is also to be decided by the Trial Court, certainly the conduct of the revision petitioners in admittedly, completing the wall by taking advantage of the order of stay of injunction and without taking steps to communicate the same to the other side, amounts to abuse of process of law which cannot be permitted. The contentions which may be raised on behalf of the petitioners that since the smaller wall is already in existence and completing of the said wall is not going to prejudice in the plaintiffs cannot be accepted. On fact, I am satisfied that the conduct of the petitioners is attracted within the meaning of the exceptional cases explained by the Hon'ble Apex Court.
17. There is one another circumstance namely that the relief of mandatory injunction claimed by the plaintiffs itself is consequential to the relief of declaration in respect of 'C' schedule common pathway. In the event of the Trial Court coming to a conclusion that there is a common pathway in existence either as per the partition deed or otherwise, certainly, the defendants 1 and 2 are liable to demolish the wall. If the Trial Court comes to the conclusion that there is no common pathway and the plaintiffs are entitled to use the well in the 'B'Schedule well by alternate passage, it is always open to the defendants to enjoy the 'C' schedule property by putting up the wall or otherwise. At this juncture, when prima facie, it is the case of the plaintiffs that the 'B' schedule well is the only source of water for which the access is 'C' schedule property. I am of the considered view that even on the principles of justice and equity, the impugned order passed by the Court below is to be sustained. In view of the same, there is absolutely no irregularity or illegality in the impugned order passed by the Court below consequently, the Civil Revision Petitions fail and the same are dismissed. The Appellate Court is directed to dispose of the C.M.A. in 14/2004 within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected C.M.Ps. are dismissed.
sms To The Subordinate Judge, Kuzhithurai.