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2004 DIGILAW 836 (MAD)

Palaniyammal and others v. Sellappan and another

2004-07-06

V.KANGARAJ

body2004
COMMON ORDER: Civil Revision Petition No.39 of 2004 is filed against the order made by the Court below in I.A.No.647 of 2001 in O.S.No.261 of 2001 on the file of District Munsif, Kulithalai, granting interim injunction on the ground of respondents 1 to 4 did not file counter and their application for extension of time to file counter had been dismissed. 2. The respondent/plaintiffs sought for interim maintenance alleging that the first plaintiff purchased an 1.28.1/4 acres out of Ac.2.57 and another acre was purchased by his son-in-law the second plaintiff from one Vangalayee Ammal, which his described in ‘A’ schedule property. The plaintiffs alleged that they were cultivating jointly the said lands that ‘B’ schedule property is the only access for the plaintiffs to reach ‘A’ schedule property as the cart pathway and since the defendants prevented them from using the ‘B’ schedule property to reach ‘A’ schedule property, they have filed the suit for permanent injunction; that in the counter filed by the third respondent they contended that there is no property at all as described in the ‘B’ schedule property and the petitioners are only attempting to create some cart track, which is not in vogue; that if injunction is granted, the respondents will be put to great hardship and as such, the interim application may be dismissed. 3. The trial Court by a docket order found the counter of respondents 1 to 4 had not been filed and the plaintiffs got a prima facie case and the balance of convenience is in their favour and hence granted interim injunction till the disposal of the suit. Against that order this revision has been filed. 4. Civil Revision Petition No.40 of 2004 is filed against the order passed in I.A.No.79 of 2002 in O.S.No.261 of 2001 granting interim mandatory injunction to remove the stones erected in the midst of ‘B’ schedule property by blocking the cart track pathway. 5. In the affidavit the plaintiffs have alleged that they have filed the suit for mandatory injunction for a direction to remove the stones erected by the respondents in the midst of ‘B’ schedule property. 5. In the affidavit the plaintiffs have alleged that they have filed the suit for mandatory injunction for a direction to remove the stones erected by the respondents in the midst of ‘B’ schedule property. Since it is the only cart track pathway to take the cattle to ‘A’ schedule property and it had been blocked by the respondents and hence they have filed the suit for mandatory injunction for a direction to the respondents to remove the stones put up by the respondents. The Court below by an interim order stating that the counter has not been filed and the petitioners/plaintiffs have got a prima facie case, granted interim mandatory injunction. 6. It is seen on a perusal of the records that the trial Court without applying its mind has passed a single line order on the docket. The Court below has not given sufficient reasons for granting interim injunction till the disposal of the suit. 7. With regard to the mandatory injunction, it is seen that even before evidence is let in when the parties have given their version as to the granting or rejecting the mandatory injunction hasty conclusions have been arrived at by its slip-shod order. It is well settled law that mandatory injunction can be granted only after full trial test it would amount deciding the very suit in the petition. Hence, the order of the Court below is to be set aside. 8. Considering the facts and circumstances of the case and upon hearing the learned counsel for both, this Court is of the considered view that the order of the Court below is to be set side and hence the following order. In result (i) the above civil revision petitions succeed and they are allowed. (ii) The fair and decreetal order dated 7.6.2002 made in I.A.Nos.647 of 2001 and 79 of 2002 by the Court of District Munsif, Kulithalai are set aside. (iii) Status-quo that is precedent as on date shall prevail in both applications pending disposal of the suit. (iv) Consequently the connected C.M.P.No.5398 of 2004 is closed. (v) No costs. (vi) The trial Court is hereby directed to expedite the trial procedure and deliver the judgment with due opportunity for both parties to be heard and disposed of within a period of six months from the date of receipt of a copy of this order.