IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 OP(C).No. 576 of 2011(O) ------------------------ AGAINST THE ORDER IN C.M.A.NO.15/09 AND C.M.A.NO.16/09, SUBCOURT, TIRUR IN O.S NO.31/09. MUNSIFF COURT, PARAPPANANGADI .................... PETITIONERS: -------------------- 1. MOHIDEEN KUTTY HAJI, AGED 60 YEARS, S/O. MOHAMMED HAJI, KANNANGHATTU PALLIKAL (H) PANTHARANGADI P.O., THIRURANGADI TALUK, TRIKKULAM AMSHAM DESHAM, MALAPPURAM DISTRICT 2. AYOOB, AGED 44 YEARS, S/O. AHAMMED KUTTY HAJI, KANNANGHATTU PALLIKAL (H), PANTHARANGADI P.O. THIRURANGADI TALUK, TRIKKULAM AMSHAM DESHAM, MALAPPURAM DISTRICT. 3. UMAR, AGED 33 YEARS, S/O.AHAMMED KUTTY HAJI, KANNANGHATTU PALLIKAL (H), PANTHARANGADI P.O., THIRURANGADI TALUK, TRIKKULAM AMSHAM DESHAM, MALAPPURAM DISTRICT. 4. ANWAR, AGED 31 YEARS,S/O.AHAMMED KUTTY HAJI, KANNANGHATTU PALLIKKAL (H) PANTHARANGADI P.O., THIRURANGADI TALUK, TRIKKULAM AMSHAM DESHAM, MALAPPURAM DISTRICT BY ADV. SRI.M.T.BALAN SRI.VIJUBALA.B SMT.PRIYA BABU OP(C).No. 576 of 2011 RESPONDENTS: ----------------------- 1. HAMSA, AGED 61 YEARS, S/O. AHAMMED KUTTY PADINHARE PEEDYAKKAL (H),MOONNIYOOR P.O. THIRURANGADI TALUK, MOONNIYOOR AMSHAM DESHAM, MALAPPURAM DISTRICT PIN - 676311. 2. FATHIMA, AGED 51 YEARS, W/O.HAMSA, PADINHARE PEEDYAKKAL (H), MOONNIYOOR P.O. THIRURANGADI TALUK, MOOONNIYOOR AMSHAM DESHAM, MALAPPURAM DISTRICT, PIN - 676311. 3. NASEERA, AGED 21 YEARS, W/O.JAFFER, PADINHARE PEEDYAKKAL (H), MOOONNIYOOR P.O. THIRURANGADI TALUK, MOOONNIYOOR AMSHAM DESHAM, MALAPPURAM DISTRICT, PIN - 676311. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb K.T.SANKARAN, J. ------------------------------ O.P(C).No.576 OF 2011 ------------------------------ Dated this the 10 th day of February, 2011 JUDGMENT The petitioners filed O.S.No.31 of 2009 on the file of the Court of the Munsiff of Parappanangadi against the respondents for permanent prohibitory injunction restraining the defendants from constructing building in such a manner projecting the sunshades of the building into the plaint A schedule private road and restraining the defendants from stocking any material in the plaint A schedule property so as to cause obstruction to the plaintiffs' property. Along with the suit, the plaintiffs filed I.A.No.275 of 2009 praying for temporary injunction. An ad interim order of injunction was granted by the trial court. After securing the order of injunction, the plaintiffs erected 4 concrete pillars in the disputed area thereby blocking the entry of the defendants. Therefore, the defendants filed I.A.No.615 of 2009 for an interim mandatory injunction to direct plaintiffs to remove the O.P(C).No.576 OF 2011 2 concrete pillars. 2. The trial court considered I.A.Nos.275 of 2009 and 615 of 2009 together and those applications were disposed of by a common order dated 8 th April, 2009. The trial court dismissed I.A.No.275 of 2009 and allowed I.A.No.615 of 2009. Accordingly, an interim mandatory injunction was issued directing the petitioners to remove the concrete pillars. 3. Challenging the order passed by the trial court, the petitioners/plaintiffs filed C.M.Appeal Nos.15 of 2009 and 16 of 2009. The appellate court dismissed the appeals by a common judgment dated 15 th December, 2010. The plaintiffs challenge the order and judgment in this Original Petition. 4. The courts below found that after securing the interim order of injunction, the plaintiffs misused the order of injunction, took law into their hands, and altered the status quo in respect of the disputed property. These are findings of fact. That the O.P(C).No.576 OF 2011 3 concrete pillars were erected after filing of the suit is clear from the Commissioner's reports and plans. At the time of the first inspection by the Commissioner, the concrete pillars were not there. After the status quo was altered, on the application of the defendants, the Commissioner inspected the property again. At that time, it was found by the Commissioner that the concrete pillars were erected. There was ample evidence before the court to show that status quo of the property was changed by the plaintiffs after getting an order of interim injunction. There is no case for the plaintiffs the concrete pillars were not erected by them. 5. The plaintiffs are not entitled to the assistance of the court, they having engaged in high handed activities. Section 41(i) of the Specific Relief Act provides that an injunction cannot be granted when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court. The facts and circumstances of the case would indicate that the conduct of the plaintiffs O.P(C).No.576 OF 2011 4 disentitled them from getting any assistance from the court. Therefore, the courts below were right in dismissing the application for temporary injunction filed by the plaintiffs. Since the concrete pillars were erected, altering the status quo in respect of the property and thereby preventing the entry of the defendants to the disputed pathway, the courts below were justified in issuing an interim mandatory injunction to restore the status quo. 6. There is no error of jurisdiction or error of law in the order and judgment passed by the courts below, warranting interference under Article 227 of the Constitution of India. The Original Petition lacks merits and it is accordingly, dismissed. K.T.SANKARAN, JUDGE. cms