IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 34032 of 2009(O) -------------------------- OS.211/2009 of MUNSIFF COURT,CHENGANNUR .................... PETITIONER(S): --------------- M.G.JOHN, MELEPANDIYIL VEETTIL,KEEZHCHERIMEL MURIYIL, CHENGANNUR VILLAGE. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS RESPONDENT(S): --------------- 1. NAGARASABHA,CHENGANNUR, REPRESENTED BY ITS SECRETARY, ANU R.S.,VIPANCHIKAYIL VEETTIL, MANAKKARA MURIYIL,SASTHAMKOTTA VILLAGE, KOLLAM DISTRICT. 2. KERALA GOVERNMENT, REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA. 3. DISTRICT SURVEY SUPERINTENDENT, ALAPPUZHA. 4. TAHSILDAR,CHENGANNUR. 5. TALUK SURVEYOR,CHENGANNUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.34032 OF 2009 -------------------------------- Dated this the 26th day of November 2009 ---------------------------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) To set aside Ext.P10 order dated 13/11/2009 and dismiss I.A No.1515/2009 in O.S No.211/2009 on the files of the Munsiff Court, Chengannur. ii) To issue such other appropriate writ order or direction which this Hon'ble Court may deem just and fit under the circumstances of the case. 2. Petitioner is the plaintiff in O.S No.211 of 2009 on the file of the Munsiff Court, Chengannur. Suit is for perpetual prohibitory injunction, and petitioner is the plaintiff. First respondent is the additional 5th defendant and other respondents, defendants 1 to 4 in the suit. In the suit, petitioner/plaintiff sought for a perpetual prohibitory injunction to restrain the defendants from interfering with his possession and tampering with the boundaries of the plaint property. The local authority, the first respondent W.P.(C).No.34032 OF 2009 Page numbers herein, moved an application for its impleadment and that being allowed, it was impleaded as additional 5th defendant in the suit. An application for interim injunction as identical to the main relief canvassed in the suit after hearing both sides was dismissed by the learned Munsiff vide Ext.P7 order. The facts presented in the case disclose that previously the plaintiff had filed another suit against the 5th respondent and another seeking a perpetual prohibitory injunction identical to the reliefs sought in the present suit, pending suit some compromise terms were arrived between plaintiff and the local authority in the matter of putting up of the boundary wall separating his property from the adjacent Boys High School compound. Retracting from the agreement so arrived, it is stated, the plaintiff withdrew the earlier suit. The learned counsel for the first respondent would state that the present suit was filed during the pendency of the earlier suit, but, without impleading the local authority as one among the defendants canvassing the same relief in the previous suit. After dismissal of the interlocutory application moved by the plaintiff vide Ext.P7 W.P.(C).No.34032 OF 2009 Page numbers order, the first respondent/additional 5th defendant moved an application for interim mandatory injunction for carrying out the measurement of the plaint property and fixation of the survey stone on its boundary with the assistance of the survey officials. Ext.P8 is the copy of that application. That application was objected to by the plaintiff . Ext.P8(a) is the copy of the objections. The learned Munsiff after hearing the counsel on both sides allowed Ext.P8 application vide Ext.P10 order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Perusing Ext.P10 order, it is seen, the court has allowed the interim mandatory injunction sought for by the additional 5th defendant for measuring out the plaint property, fixing its boundaries and installing survey stones considering what transpired earlier in the previous suit. It is also seen that the dismissal of the interlocutory application for injunction moved by the plaintiff also weighed with the court in W.P.(C).No.34032 OF 2009 Page numbers concluding that additional 5th respondent is entitled to the interim mandatory injunction applied for. I am afraid the reasons taken by the court for the grant of interim mandatory injunction are not proper and correct. There is no prohibition against granting an interim mandatory injunction by the court. However, the court must be satisfied that the matter is emergent and its immediate assistance is required if the injunction is of a mandatory character. A mandatory injunction is an order compelling the opposite party to restore things to the condition in which they were when the petitioner's complaint was made. It is granted only when the court is satisfied that injury is immediate and pressing and irreparable, and clearly established by the materials placed that no other equitable remedy is available to undo the mischief which is sought to be prevented. On a mere asking for whatever be the contumacious conduct of the opposite party the court cannot pass an order of interim mandatory injunction. Unless the essential requirements for sanctioning such an order is made out by the facts and circumstances presented W.P.(C).No.34032 OF 2009 Page numbers no such injunction can be ordered. What is noticed in the present case is that on dismissal of the interlocutory application moved by the plaintiff, whatever be the reasons thereof, in his suit for injunction on a request made by local authority the court has passed Ext.P10 order for fixation of the boundaries separating the plaintiff's property with a nearby high school compound and fixing of survey stones demarcating the boundaries of the two properties, by issuing an order in mandatory form to the fourth defendant, namely, Thahsildar, Chengannur. In effect the additional fifth defendant, local authority, by filing Ext.P8 application sought for an order in the form of interim mandatory injunction as against a co-defendant, the fourth defendant, to measure out the two properties, fixing boundaries and then planting of survey stones on the boundaries. Strangely enough, no material had been placed before the court as to particulars of the property covered by the high school compound and no relief claimed even by way of counter claim in a written statement for fixation of boundaries of that compound with that the adjacent property belonging to W.P.(C).No.34032 OF 2009 Page numbers the plaintiff, leave alone fixing of the survey stones on boundaries of the properties. Ext.P10 order passed by the court below on the basis of Ext.P8 application which is in the nature of the mandatory injunction against a co-defendant compelling him to perform certain acts that too in respect of fixing of the boundaries of two properties in respect of one of which no material was placed before the court, without any relief thereof being canvassed in the suit by the defendant by way of counter claim in its written statement, that too in the suit for perpetual prohibitory injunction filed by the plaintiff in respect of plaint property alone as against the defendants, is patently erroneous and unsustainable in law. 4. Determination of the question relating to interim injunction which require the presentation of a prima facie case for such discretionary relief, is based on appreciation of the materials tendered without any adjudication on the disputed questions presented in the case. View taken on such application is open to modification once evidence is let in the case. Similarly what transpired in W.P.(C).No.34032 OF 2009 Page numbers a previous suit may be relevant in considering whether the discretionary relief of interim injunction has to be granted or not. But a decree of injunction in a suit stands on a different footing, the legal right of the plaintiff to get that relief, as envisaged under Section 38 of the Specific Relief Act. So much so, the interim mandatory injunction given to the additional 5th defendant vide Ext.P10 order for the reasons adverted to by the learned Munsiff cannot be sustained. Ext.P10 order is set aside and Ext.P8 application shall stand dismissed. However I make it clear, setting aside of Ext.P10 order will not stand in the way of the additional 5th defendant in seeking appropriate relief in the suit setting forth a counter claim, provided time limit for delivering its defence has not been over, subject to the procedure covered by Order 8 Rule 6A of the Code of Civil Procedure, if so advised. Writ petition is closed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// vdv P.A TO JUDGE