Judgment : The sole defendant in O.S. No. 229/2009 on the file of the Munsiff's Court, Cherthala, is the Petitioner in this Writ Petition filed under Article 227 of the Constitution of India. The said suit instituted by the respondent herein, as originally filed, was one for a declaration of prescriptive easement of the plaintiff over the plaint schedule Item No. 3 pathway and for a permanent prohibitory injunction restraining the defendant from making any obstruction to the plaint schedule item No. 3 pathway and for fixation of the boundaries of the plaint schedule item No.I belonging to the plaintiff and for consequential reliefs. It was later amended seeking a prayer for mandatory injunction as well. 2. The proceedings impugned in this Writ Petition are Ext.P3 order dated 14-7-2009 passed by the Munsiff's Court, Cherthala and Ext.P5 judgment dated 10-12-2009 passed by the Sub Court, Cherthala concurrently allowing the plaintiff's application filed as I.A. 2066 of 2009 for an interim mandatory injunction directing the defendant/Writ Petitioner to demolish that portion of the compound wall which blocks the plaint schedule item No. 3 pathway used by the plaintiff for ingress and egress to the plaint schedule item No. I from the Municipal gravel road on the south. THE PLAINTIFF'S CASE 3. The case of the plaintiff can be summarised as follows:- Plaint schedule Item No. I absolutely belongs to the plaintiff as per a registered partition deed of the year 1987 and she is in exclusive possession and enjoyment of the same paying the land tax and effecting improvements thereon. The plaint schedule item No. 2 lying to the south of the plaint schedule item No. 1 belongs to the defendant. Along the southern boundary of plaint schedule item No. 2 is a Municipal gravel road running east-west. Plaint schedule item No. 3 is a pathway having a width of 2 meters and starting from the aforesaid municipal gravel road and running north words through the plaint schedule item No.2. The plaintiff has been using the plaint schedule item No. 3 pathway for ingress and egress to the plaint schedule item No. I for more than 20 years and in continuation of the user by her predecessors-in-interest. The plaintiff has been using the plaint schedule item No. 3 pathway for ingress and egress to the plaint schedule item No. I for more than 20 years and in continuation of the user by her predecessors-in-interest. The said pathway has been used peaceably, openly, as a right and as an easement without interruption for more than 20 years and the plaintiff has thus prescribed a right of easement over the plaint schedule item No.3 pathway. The plaintiff has no other pathway besides the plaint schedule item No. 3 pathway for ingress and egress to the plaint item No. I from the Municipal public road referred to above. The plaintiff has a right of easement by way of necessity as well over the plaint schedule item No. 3 pathway. The defendant or anybody else acting under him has no manner of right whatsoever to obstruct the user of the said pathway by the plaintiff. However, with an intention to deny the plaintiff her right over the said pathway, the defendant has on 5-5-2009 unloaded huge quantities of rubles, bricks, river sand etc. in the plaint schedule item No. 2 On enquiry about the unlawful and illegal attempt on the part of the defendant, the plaintiff was threatened by him on 5-5-2009 saying that he was going to construct a compound wall across the plaint schedule item No.3 pathway. The defendant even threatened the plaintiff that he will trespass into the plaint schedule item No. I and cut and remove valuable trees standing therein. Hence, the suit. 4. As mentioned earlier, pending suit, the plaintiff filed I.A. No. 2066 of 2009 alleging that the Writ Petitioner by lodging a caveat and averting an order of temporary injunction, hurriedly constructed a compound wall across the aforesaid pathway and therefore sought an interim mandatory injunction directing the writ petitioner to demolish the offending portion of the compound wall. The said application has been concurrently allowed by the courts below. Hence, this Writ Petition. 5. I heard Adv. Sri. Roy Chacko assisted by Adv. Sri. Joby Cyriac appearing for the Writ Petitioner and Adv. Sri. T. Jayakrishnan, the learned counsel appearing for the respondent/defendant. ARGUMENTS OF THE WRIT PETITIONER/DEFENDANT 6. The said application has been concurrently allowed by the courts below. Hence, this Writ Petition. 5. I heard Adv. Sri. Roy Chacko assisted by Adv. Sri. Joby Cyriac appearing for the Writ Petitioner and Adv. Sri. T. Jayakrishnan, the learned counsel appearing for the respondent/defendant. ARGUMENTS OF THE WRIT PETITIONER/DEFENDANT 6. The learned counsel appearing for the Writ Petitioner/defendant made the following submissions before me in support of the Writ Petition:- Since the defendant was anticipating a suit, he had lodged a caveat before the District Court, Alappuzha on 6-5-2009. It was on the same day that the suit was instituted before the vacation Court, Alappuzha. In view of the caveat lodged by the defendant, the learned vacation judge only ordered notice to the Caveator/defendant on the application for temporary injunction. Even though the plaintiff filed an application for commission along with the suit on 6-5-2009 the Commissioner visited the property only on 8-5-2009 at 4 p.m. Thereafter, the Commissioner filed the report only on 19-5-2009.Ext.P2 is the report filed by the Commissioner. In the said report the Commissioner has inter alia noted as follows:- " . ................... . ............................... " [Translation: The southern boundary of plaint schedule item No. 2 is a gravel road running east-west. To separate the above item from the plaint schedule item No.1 on the north, there is a compound wall which is being newly constructed......................................It is the compound wall now constructed which forms the boundary separating the plaint schedule item No.1 from then plaint schedule item No. 2........... Barring the newly constructed compound wall there are no other structures separating the two items of properties.] Thus, on 8-5-2009 when the Commissioner visited the property, the construction of the compound wall was a fait accompli. This will clearly show that the offending compound wall was constructed even before the institution of the suit. When the wall was already constructed on the date of institution of the suit, the courts below were not justified in directing demolition of the objectionable portion of the wall by allowing the plaintiff's application for interim mandatory injunction. It is true that the learned Munsiff directed the parties to maintain status quo as reported by the Commissioner till the disposal of the suit. It is true that the learned Munsiff directed the parties to maintain status quo as reported by the Commissioner till the disposal of the suit. But that order was passed only on 25-6-2009 by which time the defendant had constructed a compound wall on the western and southern boundaries of the plaint schedule item No. 2 belonging to him and had even put up a gate in the middle of the southern boundary wall abutting the Municipal gravel road. Hence, it was not physically possible to maintain status quo ante on 25-6-2009 by which time not only the offending compound wall along the northern boundary of plaint schedule item No. 2 was constructed but even the construction of the western and southern boundary walls of the said item was completed.Paragraph4 of the plaint would allege that the threat by the defendant to construct the compound wall was made on 5-5-2009.On 8-5-2009 the Commissioner noted that the offending compound wall was already constructed. This means that the plaintiff was suppressing in the plaint filed on 6-5-2009 the construction of the compound wall. The application for amendment of the plaint so as to in corporate a prayer for mandatory injunction and the application for interim mandatory injunction were both filed only on 17-7-2009. If immediately after the institution of the suit on 6-5-2009 the defendant had constructed the offending compound wall as the plaintiff would allege, she would have sought the mandatory injunction immediately thereafter. The very fact that the prayer for mandatory injunction was sought only on 17-7-2009 would go to show that the plaintiff has been guilty of laches and acquiescence besides suppression of facts. There is no grievance voiced in I.A. 2066 of 2009 (application for interim mandatory injunction) that the defendant had violated the order for status quo. The Courts below have gone wrong in holding that the offending compound wall was constructed after the institution of the suit. In Dorab Cawasji Warden v. Coomi Sorab Warden and Others – 1990 (2) SCC 117 = AIR 1990 SC 867 the Apex Court has observed as follows:- "16. The Courts below have gone wrong in holding that the offending compound wall was constructed after the institution of the suit. In Dorab Cawasji Warden v. Coomi Sorab Warden and Others – 1990 (2) SCC 117 = AIR 1990 SC 867 the Apex Court has observed as follows:- "16. 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 gr4anted 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 of 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. 17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion". The report and sketch submitted by the Advocate Commissioner would show that the defendant has provided a three feet wide pathway along the western portion of the plaint schedule item No. 2 belonging to the defendant for providing access to the plaintiff to the plaint schedule item No. 1. from the Municipal gravel road. The report and sketch submitted by the Advocate Commissioner would show that the defendant has provided a three feet wide pathway along the western portion of the plaint schedule item No. 2 belonging to the defendant for providing access to the plaintiff to the plaint schedule item No. 1. from the Municipal gravel road. Hence, the balance of convenience was also against the grant of interim mandatory injunction which is essentially an equitable relief that is sparingly granted. The courts below by granting the interim mandatory injunction were virtually passing a decree in favour of the plaintiff even before trial as was held in Metro Marins and Anr. v.Bonus Watch Co. (P) Ltd. and Others - (2004) 7 SCC 478 - where also it has been re-iterated that interim mandatory injunction can be granted only in exceptional cases. In Kishore Kumar Khaitan and Anr. v. Praveen Kumar Singh -2006 (3) SCC 312 it has been emphasised by the Supreme Court that a court should not direct the parties to maintain status quo in respect of the subject matter of litigation without ascertaining and indicating as to what the status quo is . The said decision has also dealt with the power of the High Court under Article 227 of the Constitution of India. It is true that in Appukkuttan Nair v. Hydrose - 2004 (1) KLT 350 - this Court has held that an interim mandatory injunction can be granted even for restoring the status quo that obtained prior to the date of suit. But the facts of that case will show that the disputed way was the only access to the residential house of the defendant in that case and it was after blocking the said way by constructing a compound wall that the plaintiff in that case came to Court seeking an interim prohibitory injunction. But in the case on hand the respondent/plaintiff has no residential house in plaint schedule item No. I and she has an alternative way provided along the western extremity of the property of the Writ Petitioner/defendant. Even though the suit was filed on 6-5-2009 the application for interim mandatory injunction was filed only on 17-7-2009. The relief of mandatory injunction in the suit also was claimed only on 17-7-2009. The plaintiff has been guilty of acquiescence as was held in S.S. Krishnan Pillai and others v. Kilasathammal -AIR 1928 Madras 810. Even though the suit was filed on 6-5-2009 the application for interim mandatory injunction was filed only on 17-7-2009. The relief of mandatory injunction in the suit also was claimed only on 17-7-2009. The plaintiff has been guilty of acquiescence as was held in S.S. Krishnan Pillai and others v. Kilasathammal -AIR 1928 Madras 810. The Apex Court in a recent decision in Abdul Razak v. Mangesh Rajaram Wagle - 2010 (1) KLT SN 33 Case No. 42 has re-iterated the wide powers of the High Court while exercising jurisdiction under Article 227 of the Constitution of India. John V.O. v. M/s. Catholic Syrian Bank and Others - ILR 2009 (1) Kerala 596 is yet another decision by a Division Bench of this Court detailing the powers of the High Court under Article 227 of the Constitution of India. Exts. P3 and P5 orders virtually amount to the decreeing the suit without a trial, and are therefore, unsustainable and may be quashed. JUDICIAL EVALUATION 7. I am afraid that I cannot agree with the above submissions made on behalf of the writ petitioner/defendant. 2. 8. The suit was filed on 6-5-2009 before the vacation Judge, District Court, Alappuzha as C.M.P. No. 363/2009. It was specifically alleged in the plaint that on 5-5-2009 the defendant had collected construction materials in the property. It is pertinent to note that the time chosen by the defendant to put up the offending compound wall was during the mid-summer holidays for the civil courts in the State. Along with the suit, the plaintiff filed C.M.P. No. 367 of 2009 seeking an interim injunction restraining the defendant and the persons claiming under him from trespassing into the plaint schedule item No. I and cutting and removing any of the trees standing thereon, committing any act of waste thereon and also from constructing any fence or boundary wall on the southern boundary of plaint schedule item No. I or in any way obstructing the peaceful enjoyment of plaint schedule item No. 3 pathway by the plaintiff. Along with the suit, the plaintiff had also filed C.M.P. No. 368 of 2009 for an emergent commission requesting for as ketch showing the plaint schedule properties, the gravel road on the south, a mahazar of the plaint schedule properties, a report showing the length and width of the plaint schedule item No. 3 pathway, to report whether there was any way other than the plaint schedule item No. 3 pathway for the plaintiff to enter into the plaint schedule item No. I property, to report whether there is any attempt to construct a compound wall across the plaint schedule item No. 3 pathway by encroaching into the plaint schedule item No. I property and also to report whether there was any boundary demarcating the plaint schedule item No. 1 from the plaint schedule item No. 2.But since the defendant had lodged a caveat before the District Court on 6-5-2009 filed as Caveat No. 361 of 2009 under Section 148 A C.P.C. the vacation Judge ordered notice to the caveator on the applications for temporary injunction as well as Commission and posted the petitions to 8-5-2009. On 8-5-2009 after hearing both sides, the learned vacation judge issued a commission with direction to the Commissioner to file the report and plan before 29-5-2009. The Commissioner inspected the property at 4 p.m. on 8-5-2009 in the presence of the plaintiff and the defendant etc. Ext.P2 is the report and plan dated 19-5-2009 submitted by the Commissioner before the District Court, Alappuzha on 20-5-2009 THE SUIT AND IT'S POST - INSTITUTION PROGRESSION The Commissioner inter alia reported as follows:- ". ( )". Transalation a) [A compound wall is being newly constructed separating the plauint schedule item No. I from the plaint schedule item No.2]. b) A pathway having a width of approximately 2 metres passing almost through the middle of the plaint schedule item No. 2 and plaint schedule item No. 1 is clearly seen. That portion of the said pathway passing through the plaint schedule item No.2 is seen covered with waste materials. The said pathway has an approximate length of 25 metres inside the plaint schedule item No.2. c) Grass is seen growing on either side of the said pathway. The southern boundary of the plaint schedule item No. 2 is a gravel road running east-west. The said pathway has an approximate length of 25 metres inside the plaint schedule item No.2. c) Grass is seen growing on either side of the said pathway. The southern boundary of the plaint schedule item No. 2 is a gravel road running east-west. The compound wall which is being newly constructed forms the boundary separating the plaint schedule item No. I from the plaint schedule item No.2.Barring the newly constructed compound wall there are no signs of any other structure separating the two items. d) Trenching works are in progress along the western boundary of the plaint schedule item No.2. for the purpose of constructing a boundary wall. The said trenching work is done after excluding a three feet wide pathway from south to north through which access can be had to the plaint schedule item No. 1. e) The plaintiff represented to the Commissioner that the actual boundary separating the plaint schedule item Nos. 1 and 2 was the four anjili trees standing in a row from west to east about one metre to the south of the offending compound wall. 9. The Commissioner also produced a rough sketch along with Ext.P2 report. In order to appreciate the rival contentions a rough sketch incorporating the facts noted by the Advocate Commissioner when he visited the property on 8-5-2009 as also the subsequent changes is given below: ABCDEF is the plaint schedule item No. 1 belonging to the plaintiff. RQPOJKLSTMN is the plaint schedule item No. 2 belonging to the Writ Petitioner/defendant. PKLQ is the plaint schedule item No. 3 pathway having a width of 2 metres and passing from south to north through the plaint schedule item No. 2. The said pathway starts from the Municipal Gravel Road on the south and after passing through the property of the writ petitioner it runs northwards through the plaint schedule item No. I providing access not only to the plaintiff but also the persons residing further to the north of the plaint schedule item No. 1. CDEFOPQR is the offending compound wall which was being constructed across the plaint schedule item No.3 pathway completely blocking further access from the said pathway towards north. GHIJ is a three feet wide footpath found outside the trench along the line OJ which was being dug for the purpose of constructing the western boundary wall of the defendant's property. 10. CDEFOPQR is the offending compound wall which was being constructed across the plaint schedule item No.3 pathway completely blocking further access from the said pathway towards north. GHIJ is a three feet wide footpath found outside the trench along the line OJ which was being dug for the purpose of constructing the western boundary wall of the defendant's property. 10. Both sides did not file any objection to the report and sketch filed by the Advocate commissioner. Even though the statements in Ext.P2 report relied on by the Writ Petitioner would go to show that then northern boundary wall of plaint schedule item No. 2 was already constructed, the opening words in paragraph 2 of Ext.P2 report which read: " " (being newly constructed)do not admit of any doubt that the construction of the compound wall was not complete. The subsequent expressions in Ext.P.2 report to the effect that the compound wall "now constructed", "the newly constructed compound wall" etc. have to be understood in the light of the categoric statement at the opening portion of the report that a compound wall is being newly constructed. The inappropriate expressions occurring in the latter portion of the report is presumably attributable to the fact that the Commissioner is a junior member of the Bar having not much of an experience. Even the writ petitioner had no case that on the date of institution of the suit, the construction of the northern boundary wall was complete.Ext.P1 is the Caveat lodged by the Writ Petitioner/defendant before the District Court, Alappuzha on 6-5-2009 which was the date on which the suit was also instituted. In the first paragraph of Ext.P1 itself the defendant has admitted as follows:- "Caveator is constructing a compound wall in his above mentioned property. Construction work is going on". Thus, even according to the Writ Petitioner/defendant as on 6-5-2009 the construction work was only going on. If so, he cannot now be heard to contend that as on the date of institution of the suit, the construction of the offending compound wall was a fait accompli. 11. The right claimed by the respondent/plaintiff over the plaint schedule item No. 3 pathway is a prescriptive right of easement. If so, he cannot now be heard to contend that as on the date of institution of the suit, the construction of the offending compound wall was a fait accompli. 11. The right claimed by the respondent/plaintiff over the plaint schedule item No. 3 pathway is a prescriptive right of easement. Even though the Advocate Commissioner noted the existence of the pathway having a width of 2 metres passing through the plaint schedule item No. 2 belonging to the writ petitioner and proceeding further to the north through the plaint schedule item No. I belonging to the respondent/plaintiff, the Commissioner has clearly noted the attempts made to obliterate that segment of the pathway passing through the writ petitioner's property by dumping waste materials. There is nothing to indicate that the three feet wide footpath passing north south along the western boundary of the plaint schedule item No. 2 belongs to the writ petitioner and was provided by him as an alternate pathway. That apart, as rightly noticed by the courts below, the said footpath is actually entering the property of one Chellamma and not the property of the respondent/plaintiff even though respondent/plaintiff may have access to the said footpath. If the strip of land covered by the said footpath also belonged to the Writ Petitioner, then in all probability he would not have excluded the said footpath from his property while carrying out excavation work for the construction of the western boundary wall along the line OJ. Even assuming that the Writ Petitioner was providing the footpath as an alternative access to the plaintiff, the existence of an alternate way is totally irrelevant to a claim of prescriptive easement. Such an alternate pathway can assume some relevance if the right claimed is an easement of necessity and even in such cases courts have taken the view that the alternate way will extinguish an easement of necessity only if the alternate way is such that the dominant owner can use the alternate way as of right. 12. It is admitted by the learned Counsel for the Writ Petitioner/defendant that after the construction of the offending compound wall blocking the plaint schedule item No. 3 pathway he has also constructed the western boundary wall along the line OJ as also the southern boundary wall along the lone JM and has also put up a gate in between ST. It is admitted by the learned Counsel for the Writ Petitioner/defendant that after the construction of the offending compound wall blocking the plaint schedule item No. 3 pathway he has also constructed the western boundary wall along the line OJ as also the southern boundary wall along the lone JM and has also put up a gate in between ST. These additional constructions, according to him were made after the visit of the Commissioner that is on 8-5-2009 and before 25-6-2009 when the trial court passed the status quo order. 13. The Commissioner filed the report and plan before the District Court, Alappuzha on 20-5-2009.Since the Civil Courts in the State re-opened on 21-5-2009 the learned vacation Judge did not take up for consideration the application for interim injunction or the report and plan submitted by the Advocate Commissioner. The records were transmitted to the Munisff's Court, Cherthala. Thereafter it was only on 25-6-2009 that the learned Munsiff, Cherthala took up the application for interim injunction which was re-numbered as I.A. No. 1350 of 2009.On that day after hearing both sides the learned Munsiff passed an order as follows:- "Parties are directed to maintain status quo as reported by the Commissioner till the disposal of the I.A. on merits". There is no evidence now before court as to whether the construction of the western and southern boundary walls and the putting up of the gate on the southern boundary wall by the defendant was made during the period between 8-5-2009 (i.e. the day on which the Commissioner inspected the property) and 25-6-2009(i.e. the day on which the learned Munsiff directed the parties to maintain status quo as reported by the Commissioner). It is worthwhile to note that the order for status quo was passed after fully noting what the status quo was and therefore it was an order passed in complete obedience to the dictum laid down by the Supreme Court in Kishore Kumar Khaitan's case - (2006 ) 3 SCC 312 (supra).It is significant in this context to note that so far the writ petitioner has never informed the court that the status quo as reported by the Commissioner was incapable of being maintained by him since even before the order dated 25-6-2009 passed on I.A. 1350/2009 he had constructed the western and southern boundary walls and had also put up a gate on the southern boundary wall. The photographs produced by the Writ Petitioner as Ext.P6 series in this Writ petition will clearly show that he has constructed the western and southern boundary walls and has also put up a gate on the southern boundary wall after the Commissioner visited the property. Thus, on his own admission he has violated the status quo as reported by the Commissioner. It has already been seen that even the construction of the offending compound wall along the northern boundary of plaint schedule item No. 2 was completed after the institution of the suit. This means that after lodging a caveat before the vacation court the Writ petitioner successfully averted a prohibitory order of injunction against him and hurriedly constructed the offending compound wall as also the western and southern boundary walls to make it a fait accompli completely sealing any access for the plaintiff to her property through the plaint schedule item No. 2. 14.The following circumstances clearly justify Ext.P3 order passed by the learned Munsiff as confirmed by Ext.P5 judgment passed by the learned Subordinate Judge in Appeal: a) On 6-5-2009 the Writ Petitioner lodged Ext.P1 caveat before the District Court Alappuzha anticipating a suit by the plaintiff and clearly admitting that he was constructing a compound wall and the construction work was going on. b) The plaintiff who instituted the suit and filed the application for temporary injunction on 6-5-2009 was unable to get an ad interim order of injunction in view of the caveat lodged by the Writ Petitioner. The learned vacation Judge ordered notice to the caveator on the application for temporary injunction as well as on the application for the issuance of an emergent commission and posted the case to 8-5-2009. c) It was only on 8-5-2009 that the learned vacation judge issued the commission. On the same day at 4 p.m. the commissioner inspected the property and he had seen the construction of a compound wall in progress along the northern boundary of the Writ Petitioner's property. Thus the construction of the offending compound wall was competed only after the institution of the suit. d)The Advocate Commissioner had noted the existence of the plaint C schedule pathway having a width of 2 metres and passing through the plaint schedule item Nos. Thus the construction of the offending compound wall was competed only after the institution of the suit. d)The Advocate Commissioner had noted the existence of the plaint C schedule pathway having a width of 2 metres and passing through the plaint schedule item Nos. 1 and 2 and the attempt made to obliterate that portion of the pathway passing through the Writ Petitioner's property by dumping waste materials therein. (e) The existence of an alternate pathway even if true is wholly irrelevant to a claim for prescriptive easement. Moreover, the footpath on the western boundary of the writ petitioner's property is only having a width of three feet and it actually opens into the property of one Chellamma. That apart, there is nothing to show that the strip of land covered by the said footpath belongs to the Writ Petitioner or that the respondent/plaintiff can use that footpath as of right. f) The conduct of the writ petitioner in constructing the western boundary wall along the line OJ and southern boundary wall along the line JM and putting up a gate in between ST even after the visit of the Advocate Commissioner and thereby completely prohibiting the entry of the plaintiff into any portion of the plaint schedule item No.2is a sure indication that the resistance by the writ petitioner to I.A. 2066 of 2009 for interim mandatory injunction was absolutely without any bona fides. g) Even though the Advocate Commissioner visited the property on 8-5-2009 Ext.P2 report was filed only on 19-5-2009 which was on the eve of the re-opening of the civil Courts. The plaintiff cannot be found fault with for the delay on the part of the trial Court in taking up I.A. No. 1350 of 2009, namely, the application for temporary injunction only on 25-6-2009. Hence, it is unfair for the Writ Petitioner to attribute acquiescence on the part of the respondent/plaintiff. h) Even though the defendant completed the construction of the offending wall along the line FC, the courts below have directed him to demolish only a portion of the compound wall in between ED. The rest of the northern boundary wall or the western and southern boundary walls including the gate have not been ordered to be demolished even though they were all constructed in violation of the status quo order as reported by the Commissioner. The rest of the northern boundary wall or the western and southern boundary walls including the gate have not been ordered to be demolished even though they were all constructed in violation of the status quo order as reported by the Commissioner. i) It is significant to note that the Writ Petitioner has not mentioned any where about the actual date of commencement or completion of the construction of the offending compound wall (northern boundary wall) or the western and southern boundary walls. 15. In addition to the above, there is yet another circumstance which came to light after the filing of this Writ Petition. With a view to avoid a consideration of the merits of the controversy and to provide for an interim arrangement till the disposal of the suit this Court put forward a proposal that till the disposal of the suit the writ petitioner/defendant would provide for a three feet wide pathway from south to north running parallel to the footpath GHIJ inside the plaint schedule item No. 2 belonging to the defendant so that until the dispute was finally resolved, the plaintiff could have a 2 metre wide pathway. The said proposal was made under the impression that as noted by the Commissioner the writ petitioner had only made excavations along the line OJ for the purpose of putting up a western boundary wall. The learned counsel appearing on both sides agreed to the said proposal. The Writ Petition was accordingly disposed of on 1-2-2010 directing the Writ Petitioner to provide a three feet wide pathway on the eastern side of the existing footpath. However, two days' thereafter the learned counsel appearing for the Writ Petitioner wanted the Writ Petition to be re-opened stating that the Writ Petitioner had already constructed the western boundary wall along the line OJ and therefore, it was not possible now for him to provide for a further pathway without demolishing the compound wall. There upon the judgment dated 1-2-2010 was suo motu re-opened and both sides were elaborately heard on the merits. 16. The legal position governing the issue of interim mandatory injunction is also in accord with the impugned orders passed by the courts below. There upon the judgment dated 1-2-2010 was suo motu re-opened and both sides were elaborately heard on the merits. 16. The legal position governing the issue of interim mandatory injunction is also in accord with the impugned orders passed by the courts below. Even the opening sentence in paragraph 16 of Dorab Kawasji Wardens Case (Supra) relied on by the writ petitioner indicates that an interim mandatory injunction can be granted to restore the status quo of the last non- contested status which preceded the pending controversy. In the said decision the Apex Court has relied on a passage in 24 Halsbury's Laws of England (IV Edn) para 948 which reads as follows:- "If the defendant attempts to steel a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application". In Appukuttan Nair v. Hydrose - 2004 (1) KLT 350 a learned Single Judge of this Court affirmed the interim mandatory injunction granted by the court below against the defendant to remove a portion of the compound wall constructed prior to the institution of the suit and who had after effecting the construction filed a suit for injunction against the plaintiff in the suit restraining him from demolishing the construction. The Apex court also noted with approval the decision in Nandan Pictures Limited v. Art Pictures Limited - AIR 1956 Calcutta 428 to make the following observation: A Division Bench was of the view that if the mandatory injunction is granted at all on an interlocutory application it is granted only to restore the status quo and not granted to establish a new state of things different from the state which existed at the date when the suit was instituted. In Vincent v. Aisumma - 1988 (1) KLT 420 (K.T. Thomas, J as his Lordship then was of the Kerala High Court) held that under Order 39 rule 1 C.P.C even a defendant can seek an interim mandatory injunction to restore the status quo as on the date of institution of the suit and unilaterally altered by the plaintiff. 17. In Vincent v. Aisumma - 1988 (1) KLT 420 (K.T. Thomas, J as his Lordship then was of the Kerala High Court) held that under Order 39 rule 1 C.P.C even a defendant can seek an interim mandatory injunction to restore the status quo as on the date of institution of the suit and unilaterally altered by the plaintiff. 17. It is well settled that the ordinary rule of civil law is that the rights of parties stand crystallized on the date of the institution of the suit and therefore the decree in a suit should accord with the rights of the parties as they existed at the commencement of the lis.(See Om Prakash Gupta v. Ranbir B Goyal -(2002) 2 SCC 256 and Kedarnath Agarwal and another v. Dhanraji Devi by Lrs and Another-(2004) 8 SCC 76). The decision in the suit or appeal there from relates back to the date of institution of the suit. (See Anandan v. Kunhi Pokker - 1961 KLT 805, Kaderkunhi v. Kadre Beary - AIR 1976 Kerala 92 and Ramehwar and Others v. Jot Ram and Others -AIR 1976 SC 49).It is an equally well settled principle of law that the trial of a suit is on the original cause of action and this principle governs not only the trial of the suit but also the appeal there from. (See Nair Service Society Ltd. v. K.S. Alexander and Others - AIR 1968 SC 1165). Except in those cases where the court can take notice of subsequent events and mould the reliefs accordingly, no party to alitigation can be allowed to unilaterally alter the state of affairs occurring at the subject -matter of the suit on the date of institution of the lis to the disadvantage or detriment of the opposite party. The facts of the present case will show that the Writ Petitioner by lodging a caveat successfully preempted the passing of a prohibitory order against him and hurriedly achieved the sinister object of confronting the plaintiff with a fait accompli to demonstrate that he could overreach the court. The courts below were, therefore, fully justified in allowing the application for interim mandatory injunction. 18. The courts below were, therefore, fully justified in allowing the application for interim mandatory injunction. 18. Since the learned counsel appearing for the respondent/plaintiff did not raise any objection regarding the maintainability of this Writ Petition and also since both sides elaborately argued this Writ Petition on the merits, I am not going into the question as to whether the judgment of the lower appellate court confirming that of the trial court being a revisible order could be assailed in a Writ Petition filed under Article 227 of the Constitution of India. For the reasons indicated in the forgoing paragraphs, I see little scope for interfering with Exts. P3 and P5 orders which are accordingly confirmed and this Writ Petition is dismissed. The trial Court shall dispose of the suit un trammelled by the observations in the impugned orders as well as in this judgment. Merely because the courts below have not ordered demolition of the gate put up by the Writ Petitioner on the southern boundary wall after even the visit of the Commissioner, it does not mean that he can refuse entry to the plaintiff through the said gate to have continued access to the plaint schedule item No. 3 pathway. The writ petitioner is given three weeks' time from today to demolish the relevant portion of the wall which blocks the plaint schedule item No. 3 pathway. Dated this the 19th day of February, 2010.