James v. Jaimon James — 1997 DIGILAW 480 (KER)

Judgment :- K. Narayana Kurup, J. Defendants in O.S. No. 16/97 of the Sub Court, Pala are the revision petitioners. The Civil Revision Petitions are directed against the common order of the Addl. District Judge, Kottayam dismissing C.M.A. Nos. 44,45 and 46 of 1997. C.M.A. No. 44/97 is directed against the order of the trial court - Sub Court, Pala in I. A. No. 340 of 1997 in O. S.16/97 granting mandatory injunction directing the defendants to remove granite stones heaped in the property described as item No. 2 to the plaint. C.M.A. No. 45/ 97 is directed against the order in I.A. 341/97 in the same suit granting temporary injunction against defendants 1 to 3 from trespassing upon the plaint schedule properties or from making any obstruction in plaint schedule item No. 2 or from interfering with the running of the crusher unit in plaint schedule item No.1 till the disposal of the suit. C.M.A. No. 46/97 is directed against the order in LA. No. 448/97 in the same suit dismissing first defendant's prayer for temporary injunction restraining the plaintiff from taking vehicles or from trespassing or obstructing the possession and enjoyment of 4.77 acres of property belonging to the first defendant surrounding plaint schedule item No.1 till the disposal of the counter claim. 2. The plaintiff and revision petitioners - defendants are father, mother and children, plaintiff being one son and defendants being the father, mother and a brother of the plaintiff. The suit was one for prohibitory injunction against defendants from trespassing into the plaint schedule properties and from making any obstruction in the plaint schedule item No. 2 road and from interfering with the running of stone metal crusher unit in plaint schedule item No. 1. Along with the suit the plaintiff also filed an interlocutory application for a temporary mandatory injunction directing the defendants to remove granite stones put in the plaint schedule item No. 2 property and if the defendants are not removing the stones, he may be allowed to remove the same. The plaintiffs case is that he obtained title to plaint schedule item No. 2 property as per Ext. A2 registered gift deed executed by his father in the year 1995 which is being used as a road for taking lorries into plaint schedule item No.1 property where the crusher unit is situated for transportation of granite. The plaintiffs case is that he obtained title to plaint schedule item No. 2 property as per Ext. A2 registered gift deed executed by his father in the year 1995 which is being used as a road for taking lorries into plaint schedule item No.1 property where the crusher unit is situated for transportation of granite. The defendants filed a written statement denying the plaint averments. A specific case set up in the written statement is that the plaint schedule item No.1 property is not having a separate boundary demarcating it from the surrounding property owned by the first defendant. Further, it was contended that the crusher unit mentioned in the plaint is working under a partnership arrangement between the plaintiff and defendants 1 to 3. On a consideration of the rival contentions, the trial court negativing the plea set up by the defendant that Ext. A2 gift deed (which is a photo copy of registered gift deed No. 1720) has not come into effect and the plaintiff has no right over the roads stated therein found on the basis of Ext. Cl commission report that the plaint schedule item No. 2 road in question is being used for the purpose of going over to the crusher unit in plaint schedule item No. 1. It is also found that except plaint schedule item No. 2, there is no other way to reach plaint schedule item No. 1. Taking into consideration, the aforesaid facts and circumstances, the trial court granted an interim mandatory injunction as per order in LA. No. 340/97 directing the revision petitioners - defendants 1 to 3 to remove the granite stones collected in the plaint schedule item No. 2 or in the alternative the plaintiff be allowed to remove the same and to recover costs from the defendants. LA. No. 341/97 was also allowed, granting a temporary prohibitory injunction restraining the revision petitioners - defendants from trespassing into the plaint schedule property or from making any obstruction in the plaint schedule item No. 2 or from interferring with the running of the crusher unit in the plaint schedule item No.1 pending disposal of the suit. However, LA. LA. No. 341/97 was also allowed, granting a temporary prohibitory injunction restraining the revision petitioners - defendants from trespassing into the plaint schedule property or from making any obstruction in the plaint schedule item No. 2 or from interferring with the running of the crusher unit in the plaint schedule item No.1 pending disposal of the suit. However, LA. No. 448/97 filed by the first defendant praying for a temporary injunction restraining the plaintiff from taking vehicles or from tresspassing or obstructing the possession and enjoyment of 4.77 acres of property belonging to the plaintiff surrounding plaint schedule item No.1 fill the disposal of the counter claim was dismissed. In appeal, the lower appellate court on a careful re-appreciation of the entire materials available on record, confirmed the order of the trial court and dismissed the appeals and hence these C.R.Ps. 3. Having heard learned counsel on both sides, I do not think that these are fit cases in which orders of the court below are liable to be disturbed in exercise of the revisional jurisdiction under S.115 CPC. Under Ext. A2 gift deed the plaintiff has obtained absolute right over the plaint schedule item No. 2 and according to the commissioner the plaint schedule item No. 2 property is the only road leading to the crusher unit located in plaint schedule item No. 1. It has come out in evidence that the crusher unit in question is functioning. It has also come out in evidence that the plaintiff has availed substantial amount towards loan from the Kerala State Financial Corporation and District Industries Centre, Kottayam and he has to repay the loan amount in instalments. If the access to plaint schedule item No.1 wherein the crusher unit of the plaintiff is working is blocked by placing obstruction in plaint schedule item No. 2 road, which also belongs to the plaintiff as per Ext. A2 gift deed, it will certainly cause irreparable injury to him. In the aforesaid view, the balance of convenience is in favour of the plaintiff. Therefore, the Court below rightly exercised its jurisdiction vested in it by allowing I. A. Nos. 340 and 341 of 1997. A2 gift deed, it will certainly cause irreparable injury to him. In the aforesaid view, the balance of convenience is in favour of the plaintiff. Therefore, the Court below rightly exercised its jurisdiction vested in it by allowing I. A. Nos. 340 and 341 of 1997. I do not find any valid ground to interfere with the said orders though it has been strenuously contended by the learned Senior counsel for the revision petitioner supported by certain rulings that in a suit for prohibitory injunction where there is no prayer for mandatory injunction, an interlocutory application for the issuance of a mandatory injunction is not liable to be granted as it will have the effect of enlarging the scope of the suit itself. I shall now refer to the principles of law stated in the decisions relied on by the learned senior counsel. In H.N. Bakshi v. Ram Jauhar (AIR 1973 Calcutta 48) the point decided is that temporary injunction cannot be granted to restrain events arising subsequent to the suit. In Raman Hosiery Factory, Delhi & Ors. v. J. K. Synthetics Ltd. (AIR 1974 Delhi 207) it has been held that where final relief cannot be granted no interim injunction can be issued. The ruling in the decision reported in V.D. Tripathi & Ors. v. Vijai Shanker Dwivedi & Ors. (AIR 1976 Allahabad 97) is to the effect that temporary injunction under 0.39 R.2 of the CPC can be granted on the term of the prayer for permanent injunction in the suit and not on different terms. In Raghavan Nair v. Velayudhan Nair (AIR 1981 Kerala 35) this Court held that the defendant cannot get a relief like the one prayed for in the interim application when the suit is finally disposed of. On an anxious consideration of the principles laid down in the aforesaid decisions, I am afraid that the same will not be of any assistance to the petitioner as those decisions were rendered on an entirely different context. The factual background on which the decisions are rendered were also different. That apart, those decisions will not have the effect of overriding the salutory principle that courts have inherent power to protect the rights of parties pending suit. The plaintiff cannot be denied the relief of interim mandatory injunction on the specious plea that there is no prayer for such a relief in the plaint. That apart, those decisions will not have the effect of overriding the salutory principle that courts have inherent power to protect the rights of parties pending suit. The plaintiff cannot be denied the relief of interim mandatory injunction on the specious plea that there is no prayer for such a relief in the plaint. Even so, the court can take note of the facts and circumstances and grant appropriate directions moulding relief in the interest of justice as otherwise a hypertechnical view will result in manifest injustice. The view I am taking is fortified by certain rulings. 6. In MA. Magnum Films & Ann v. Golcha Properties Pvt. Ltd. (AIR 1983 Delhi 392) the Delhi High Court held that a temporary mandatory injunction can be issued in case of extreme hardship and compelling circumstances to restore status-quo existing on the date of institution of the suit. In Indian Cable Co. Ltd. v. Smt. Sumithra Chakraborty (AIR 1985 Calcutta 248) a Division Bench of the Calcutta High Court held that though discretionary relief of interim mandatory injunction can be granted only in rare and exceptional circumstances, still at the same time no court should think that in law there is any absolute bar to the court granting such a relief. In deserving cases the court should not hesitate to come in aid of a litigant and uphold the cause of justice by granting such a relief. This Court in Vincent v. Aisumma (1988 (1) KLT 420) went to the extend of saying that under 0.39 R.1CPC a mandatory injunction can be granted even at the instance of the defendant. This court said that provisions of CPC are intended to protect the subject matter of the suit and to safeguard the rights of parties during the pendency of the litigation. In Mrs. Vijay Srivastava v, M/s. Mirahul Enterprises and Ors. (AIR 1988 Delhi 140) an interim mandatory injunction was issued by the Delhi High Court directing the defendant to hand over the flats in question in the plaintiff without any delay. There it was observed as follows: "It cannot be said that no mandatory injunction can be granted by the Court on an interlocutory application in any circumstances. (AIR 1988 Delhi 140) an interim mandatory injunction was issued by the Delhi High Court directing the defendant to hand over the flats in question in the plaintiff without any delay. There it was observed as follows: "It cannot be said that no mandatory injunction can be granted by the Court on an interlocutory application in any circumstances. There is no bar to the Court's granting interlocutory relief in the mandatory form though in doing so, the court should act with greatest circumspection and such powers can be exercised only in rare and exceptional cases. Whether or not a case comes in the category of rare' and 'exceptional' one, is to be judged according to the facts and circumstances surrounding it. A mandatory injunction can be granted on an interlocutory application after notice to the defendant and after hearing the parties". In Bebah Narayan Landge v. Mahadu Bhikaji Tonchar and Ors. (AIR 1989 Bombay 247) the Bombay High Court recognised the legal position that civil court can issue at an interlocutory stage a mandatory injunction so as to restore the status quo anterior to the date of institution of a suit. The subject of temporary injunction is mainly covered by 0.39 Rr.1 and 2, CPC. In cases not covered by those provisions, an appropriate temporary injunction can be granted also in exercise of inherent power of a court under S.151 CPC. After all 0. 39, Rr.1 and 2 are not exhaustive of the circumstances under which interim injunction can be granted. The language employed in those two rules is clearly wide enough to include an order in the form of a mandatory injunction and admits of no exception with reference to a point of time to which it can be made. Injunctions are a form of equitable relief and they have to be adjusted or moulded in aid of equity and justice to the facts and circumstances of each particular case. Jurisdiction is thus undoubted even under 0.39 Rr.1 and 2. Even if it cannot be granted under the said Rules, S.151 is the source of such jurisdiction. Injunctions are a form of equitable relief and they have to be adjusted or moulded in aid of equity and justice to the facts and circumstances of each particular case. Jurisdiction is thus undoubted even under 0.39 Rr.1 and 2. Even if it cannot be granted under the said Rules, S.151 is the source of such jurisdiction. It is not necessary to lay down an absolute proposition and forge unnecessary and unjustified fetters on the powers of the equity courts to grant appropriate relief even in a well deserving case and reduce its position only to a willing but helpless spectator - a situation not warranted by our equity jurisprudence. Undoubtedly, power to issue mandatory injunction at an interlocutory stage is not to be exercised lightly or commonly. Ordering maintenance of status quo as on the date of the suit as an interim measure is rare and rarer still is the order of maintenance of status quo as on the date anterior to the institution of suit. But existence of jurisdiction and its proper exercise are two distinct topics. 7. To cap it all, the Apex Court in AIR 1996 SC 1946 (Smt. Rajnibai alias Mannubai v. Smt. Kamla Devi & Ors. has held that the Court has inherent power to protect rights of parties pending suit. In the aforesaid view, I am not prepared to disturb the interim orders passed by the trial court in I.A. Nos. 340/97 and 341/97 granting interim mandatory and prohibitory injunction in favour of the plaintiff as confirmed by the order of the lower appellate Court in C.M.A. Nos. 44/97 and 45/97. Accordingly, CRP Nos. 1085/97 & 1087/97 filed against the orders in I.A. Nos. 340/97 & 341/97 as confirmed by CMA Nos. 44/97 and 45/97 are hereby dismissed. However, taking note of the apprehension expressed by the revision petitioners and having regard to the extremely strained relationship between the parties, I am of the view that it is only fit and proper to allow the prayer for injunction of the revision petitioners - defendants in I.A. 448/97. 44/97 and 45/97 are hereby dismissed. However, taking note of the apprehension expressed by the revision petitioners and having regard to the extremely strained relationship between the parties, I am of the view that it is only fit and proper to allow the prayer for injunction of the revision petitioners - defendants in I.A. 448/97. Accordingly, I.A. 448/97 filed by the revision petitioners/ defendants will stand allowed and there will be a temporary prohibitory injunction restraining the plaintiff from entering or tampering with the possession and enjoyment of the property which is scheduled in the written statement except the crusher unit and the road located in plaint schedule item Nos.1 and 2. In the result, CRP 1085 of 1997 and CRP 1087 of 1997 will stand dismissed. CRP 108 6 of 1997 will stand allowed and there will be an interim injunction against the plaintiff in IA. 448/97 as prayed for and the orders of the court below in so far as it dismissed the defendants' application for injunction will stand set aside. The Civil Revision Petitions are disposed of as above with no order as to costs. However, there will be a direction to the trial Court to expedite the trial and dispose of the suit untrammelled by the findings contained in the various interim orders and treating those findings as purely tentative.