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2018 DIGILAW 605 (KER)

T. K. Thomas,T. T. Thomas v. ANTONY K. V. @ JOSE

2018-07-26

P.SOMARAJAN

body2018
JUDGMENT : Aggrieved by Ext.P10 order, dated 7.12.2017, in I.A.No.3200 of 2016 in O.S.No.245 of 2016 of the Munsiff's Court, Thiruvalla, refusing to consider the prayer for mandatory injunction, the plaintiffs came up with this original petition under Article 227 of the Constitution of India. 2. The allegation is that after the institution of the suit an exparte commission was issued at the instance of the plaintiffs, who in turn visited the property and prepared a mahazar and plan wherein the non-existence of a pathway as alleged by the defendants was also reported, but interim injunction was not granted at that time, which has resulted in the demolition of the structures in a portion of the property and construction of a new pathway. So, a second commission was also issued, who in turn visited the property and prepared a rough sketch, mahazar and report. Though the lower court has granted a permanent prohibitory injunction, based on Ext.P8 order passed by this court, the prayer for granting interim mandatory injunction was not considered at that stage. When it was brought to the notice of the lower court, a single line order has been passed after narrating the factual situation involved in the case without going into its merits and demerits. Aggrieved by the said order, the plaintiffs came up with this original petition. 3. An interim mandatory injunction can be granted only in exceptional circumstances. It is not proper to grant interim mandatory injunction when the suit itself was for the grant of the very same relief by way of a decree of mandatory injunction. But when the party seeks to restore ante status quo position of the suit property, the legal position would be different and it would be an exceptional circumstance under which the court can grant a mandatory injunction directing to remove the obstruction, whatever structure or construction made in the property after the institution of the suit. If it is for restoring the ante status quo position as on the date of the institution of the suit and when there is prima facie evidence, it would cast a duty on the court to preserve the property as such as on the date of its institution, hence granting of interim mandatory injunction for restoring ante status quo position of the suit property is the rule and not the exception. The lower court ought to have looked into the question whether the way in question was put up after the institution of the suit or not and when there is prima facie evidence that it was put up subsequent to the suit certainly the jurisdiction vested with the court under Order XXXIX Rule 1 of the Code of Civil Procedure for granting of interim mandatory injunction has to be exercised. That has not been done by the lower court in the present case. Hence the order of the lower court is hereby set aside. The matter is remanded back to the lower court for fresh disposal in accordance with the law in force. The lower court shall dispose of the said application within a time limit of two months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. No costs.