Kerala High Court
Appukuttan Nair vs Hydrose on 18 August, 2003
Equivalent citations: 2004(1)KLT350
JUDGMENT G. Sasidharan, J.
1. Petitioners filed O.S. No. 192 of 2002 on the file of the Munsiff, Varkala for permanent injuction to restrain respondent from demolishing the compound wall on the side of their property. I.A. No. 1231 of 2002 was filed in the above suit by the petitioners for temporary injunction. The respondent filed O.S. No. 198 of 2002 against the petitioners for declaration of easement right of way over a portion of the property of the petitioners and also for mandatory injuction to remove a portion of the compound wall. In the above suit I.A. 1269 of 2002 was filed by the respondent for interim mandatory injunction directing the revision petitioners to remove the obstruction caused to the way by putting up a compound wall across the way. Both the petitions were disposed of by the learned Munsiff by a common order. I.A. No. 1231 of 2002 in O.S. 192 of 2002 was dismissed and I.A. 1269 of 2002 in O.S. 198 of 2002 was allowed by directing the petitioners to remove the obstruction caused in D schedule pathway within one week. Challenging the common order made by the learned Munsiff, two Civil Miscellaneous Appeals were filed in the court of the Sub-Judge, Attingal by the petitioners. C.M.A. 31 of 2002 was filed challenging the order by which interim mandatory injunction was granted and C.M.A. 38 of 2002 was filed challenging that portion of the common order by which I.A. 1231 of 2002 filed by the present petitioners in O.S. 192 of 2002 was dismissed. The appellate court after hearing the counsel appearing for the parties confirmed the common order made by the learned Munsiff and dismissed the Civil Miscellaneous Appeals.
2. The property of petitioners is on the southern side of the property of the respondent. Further south to the property of the petitioners there is the property of one Gomathy Amma. On the southern side of the property of Gomathy Amma there is a road which goes from Cherunniyoor to Kavalayoor. The respondent in the suit filed by him for declaration of easement right claims easement over D schedule pathway which is on the western side of the property which belong to the petitioners. The trial court as well as the appellate court found that the petitioners put up a compound wall across the pathway, causing obstruction to the use of the same by the first respondent two days prior to the filing of O.S. 192 of 2002. It was also found by both the courts below that the Commissioner who was appointed by the trial court filed a report stating that there was a way which was in existence for the last 12 years. The appellate court says that what is seen from the report of the Commissioner is that the compound wall across the property was put up about two days prior to the inspection of the property by him. The Commissioner went to the property even on the day on which the suit, O.S. 192 of 2002, was filed. It was on the basis of the above materials available on record that both the courts below found that there is need for giving direction to the petitioners to remove the obstruction caused to the pathway.
3. Ext.C1(a) is the rough sketch prepared by the Commissioner. A copy of the rough sketch is made available for perusal In that rough sketch it is shown that on the southern side of the property of the petitioners there is a compound wall constructed a portion of which is across the way at the point shown as even the rough sketch. There is also statement in the report of the Commissioner that in the property of Gomathy Amma, at the portion shown as ML in the rough sketch a new compound wall was constructed across the pathway alleged to be in existence.
4. The submission made by the learned counsel appearing for the petitioners is that the appellate court went wrong in confirming the order of interim mandatory injunction made by the learned Munsiff since appellate court found that the respondent cannot claim easement by prescription and easement by necessity over the same pathway. What the appellate court said was that it was well settled principle of law that easement by prescription and easement by necessity would not go together. Even though such an observation was made by the appellate court in respect of the claim made by the respondent over the way, it went on to observe that question had to be decided after the parties adduced evidence. Even though that was the observation made by the appellate court it took into account the materials available on record to show that there was a way which was 12 years old according to the Commissioner. The appellate court found that till the decision in the suit is taken it is necessary that the way which is in existence has to be preserved and for that granting of interim mandatory injunction was justifiable.
5. It is pointed out by the counsel appearing or the petitioners that there are other alternate ways through which the respondent can go to his property where his house is situated. The Commissioner also mentions about other ways in the report. In the rough sketch it is shown that there is a way on the eastern side of the property of Gomathy Amma. The submission made by the learned counsel appearing for the respondent is that the above way does not touch the property of the respondent. The Commissioner says that a way has been cut open so that the way on the eastern side of the property of Gomathy Amma touches the property of the respondent. That way, according to the Commissioner, is only two days and at the time when he visited the plot. There are two other ways which are mentioned in the report of the Commissioner and one way reaches the property known as Assarivilakom and that way according to the learned counsel appearing for the respondent does not go upto the property of the respondent. The other way which is shown as QT in the rough sketch also does not touch the property of the respondent. The question whether there is other alternate ways through which the respondent can go to his property arises only when considering the question whether the respondent is having right of easement by way of necessity. This is a case in which, as pointed out by the appellate court, the respondent claims right of way by prescription and if ultimately it is found that the right the respondent is having is right by way of such an easement, the existence of other alternate ways may not be of much relevance. As pointed out by the appellate court that is a question which has to be decided at the time of final disposal of the suit.
6. The argument advanced by the learned counsel appearing for the petitioners is that merely for the reason that the party who seeks temporary injunction makes out a prima facie case, the court will not be justified in granting the injunction. His submission is that after establishing prima facie case the person who seeks temporary injunction will have to establish that the balance of convenience is in his favour and that in case injunction is refused, irreparable injury will be caused to him. The learned counsel then relies on the decision of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden (AIR 1990 SC 867). After referring to various English decisions the court observed as follows:
"The relief of interlocutory mandatory injunctions are thus 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 great 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 great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief."
The other decisions cited by the learned counsel appearing for the petitioners are Dalpat Kumar v. Prahlad Singh (AIR 1993 SC 276) and in Geo-Tech Constructions Co. Pvt. Ltd. v. Hindustan Steel Works Construction Ltd. (1999(1) KLT 536). He also cited the decision in James v. Jaimon James (1998 (1) KLT 233). The attempt made by the learned counsel for the petitioners on citing the above decisions is to show that the purpose of granting injunction is to maintain the status quo as on the date of the suit and that in granting injunction it is necessary that the question whether irreparable injury will be caused to the person who seeks injunction and whether balance of convenience is also in favour of him has to be considered by the court. The question whether balance of convenience is in favour of the person who seeks injunction and whether in case injunction is refused he will suffer irreparable injury are matters which have to be considered in the light of the facts and circumstances of each case.
7. This is a case in which as pointed out by the courts below the suit was filed by the petitioners after putting up a compound wall across the pathway two days prior to the institution of the suit. As has come out from the report of the Commissioner it could be seen that there was a way which was in existence for 12 years. It cannot be said that granting of mandatory injunction was not permissible because on the date of the suit there was a compound wall across the pathway and that giving direction to remove compound wall which was in existence prior to the institution of the suit will be against maintaining status quo as on the date of the suit. Generally the purpose for which interim injunction is granted is for maintaining status quo as on the date of the suit. In a case of this nature it will be proper to give direction to remove the compound wall which was put up two days prior to the institution of the suit. Interim injunction, prohibitory or mandatory can be granted even for restoring status quo anterior to the date of the suit if it is found that it is absolutely necessary. Since O.S. 192 of 2002 was filed by the petitioners for injunction to restrain the respondent from demolishing the compound wall and what is seen from the materials available on record is that the compound wall was put up two days prior to the institution of the suit across a way which according to the Commissioner was in existence for more than 12 years, granting of interim mandatory injunction is justifiable. In respect of the contention raised by the petitioners that the balance of convenience is in favour of them it has to be observed that when the way which was being used for about 12 years is closed and the respondent is prevented from using that way to go to the property where his house is situated balance of convenience is in favour of him. In that respect of the matter in case interim mandatory injunction is not granted, irreparable injury will be caused to the respondent. I do not find any reason for interfering with the judgment of the appellate court in the Civil Miscellaneous Appeals and also the order made by the learned Munsiff. These Revisions are hence dismissed.