IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 26789 of 2009(O) -------------------------- CMA.39 & 40/2007 of D.C.& SESSIONS COURT,THODUPUZHA OS.89/2007 of MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER(S): ------------------------ JOSEPH , S/O. ULAHANNAN, CHEMBARATHYKALAPURAYIL, MUTHALAKODAM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. BY ADVS. MR.MATHEW JOHN (K), MR.AJEESH K.SASI. RESPONDENT(S): --------------------------- 1. PAILY, S/O. ULAHANNAN, CHEMBARATHYKALAPURAYIL MUTHALAKODAM KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. 2. THOMMAN PAILY @ REJU, S/O. PAILY, DO........DO.......... R2 BY ADVS. MR.K.K.CHANDRAN PILLAI, MR.SAJUSH PAUL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/10//2009, THE COURT ON 20/11/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.26789/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT DTD. 16/03/2007. P2: COPY OF THE AFFIDAVIT AND PETITION DTD. 16/03/2007. P3: COPY OF THE COMMISSIONER'S REPORT AND THE ROUGH SKETCH DTD. 24/03/2007. P4: COPY OF THE AFFIDAVIT AND PETITION DTD. 27/03/2007. P5: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER ALONG WITH THE ROUGH SKETCH DTD. 4/4/2007. P6: COPY OF THE COUNTER AFFIDAVIT DTD.11/06/2007 BY THE RESPONDENTS. P7: COPY OF THE COUNTER AFFIDAVIT DTD. 11/06/2007 BY THE RESPONDENTS. P8: COPY OF THE COMMISSIONER'S REPORT ALONG WITH THE ROUGH SKETCH DTD. 25/06/2007. P9: COPY OF THE REPORT OF THE COMMISSIONER ALONG WITH THE ROUGH SKETCH DTD. 16/07/2007. P10: COPY OF THE COMMON ORDER DTD. 23/07/2007 IN I.A.NOS.426 AND 488 OF2007 IN O.S.NO.89 OF 2007 MUNSIFF'S COURT,THODUPUZHA. P11: COPY OF THE COMMON JUDGMENT IN CMA NOS.39 & 40 OF 2007 DTD. 30/07/2009 DISTRICT COURT, THODUPUZHA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.26789 OF 2009 (O) ----------------------------------- Dated this the 20th day of November, 2009 J U D G M E N T The writ petition is filed seeking mainly the following relief: i. to call for the records leading upto Ext.P11 and set aside Ext.P11 to the extent it has interfered with the order of the learned Munsiff in I.A.No.488 of 2007 and may further be pleased to restore Ext.P10 order. 2. Petitioner is the plaintiff in O.S.No.89 of 2007 on the file of the Munsiff Court, Thodupuzha. Suit is for a declaration that the plaintiff has right of prescriptive easement over plaint B schedule property and also for a perpetual prohibitory injunction to restrain the defendants from trespassing upon B schedule property from committing any waste or mischief or do such acts which are detrimental to the enjoyment of the property by the plaintiff. Respondents are the defendants in WPC.26789/09 2 the suit. Ext.P1 is the copy of the plaint. With the suit, petitioner/plaintiff moved an application for interim injunction as identical to the relief of perpetual injunction claimed in the suit till its disposal. Ext.P2 is the copy of that application. The learned Munsiff passed an ex parte order of injunction as prayed for in Ext.P2 application. While moving Ext.P2 application for interim injunction, the plaintiff also applied for an appointment of an Advocate Commissioner to conduct a local inspection and file a report. That application was also allowed by the learned Munsiff while granting the interim injunction. The Advocate Commissioner, after conducting local inspection stated to be on that date itself, filed a report with a rough sketch. Ext.P3 is the copy of that report. Plaintiff moved another application after the passing of the interim injunction and local inspection by the Advocate Commissioner, alleging that over plaint B schedule property soil had been dumped to a height of six feet and width of six feet using J.C.B by the defendants, and he was thereby obstructed and prevented from using that way. In that application, plaintiff sought for an interim mandatory WPC.26789/09 3 injunction, copy of which is produced as Ext.P4. To substantiate the case canvassed under Ext.P4 application, plaintiff moved application for deputing again, the Advocate commissioner, who prepared Ext.P3 report earlier, to note the dumping of soil in the B schedule way. The commission application was allowed by the court and after conducting local inspection, Ext.P5 report was filed. Ext.P5 report indicated that substantial changes had been made over B schedule property after the first visit and filing of Ext.P3 report by the Advocate Commissioner. The 2nd defendant, meanwhile filed Ext.P6 counter affidavit to Ext.P2 injunction application. To Ext.P4 application filed by the plaintiff seeking interim mandatory injunction alleging violation of interim order passed in Ext.P2 application, the 2nd defendant filed Ext.P7 counter affidavit. On the request made by the 2nd defendant and in view of the contentions advanced by him that the plaintiff is enjoying an alternate way other than B schedule, the Advocate Commissioner was deputed again directing him to ascertain the matters sought for by that defendant with permission being accorded to the plaintiff also WPC.26789/09 4 to file work memos stating the particulars to be determined on such visit by the Commissioner. It is seen that the Commissioner conducted inspection on two different occasions again on the applications moved by the parties and filed Exts.P8 and P9 reports. Apart from noting the various matters sought for by the 2nd defendant in answer to the work memos filed by the plaintiff, he had noted the changes that had occurred over the B schedule pathway and also the adjoining northern property by the dumping of soil after his earlier visits and filing of previous reports. 3. After collecting four reports Exts.P3, P5, P8 and P9, the learned Munsiff, it is seen, has considered Ext.P2 application for prohibitory injunction and Ext.P4 application for interim mandatory injunction. Ext.P10 common order was then passed allowing both the applications. The interim ex parte order already granted in Ext.P2 application was made absolute and Ext.P4 application for interim mandatory injunction was allowed directing restoration of B schedule pathway by the defendants to its original position as reported WPC.26789/09 5 by the Commissioner in Ext.P3 report within the time limit fixed. Ext.P10 common order was challenged by the defendants before the District Court, Thoudpuzha filing two appeals as C.M.A.Nos.39 and 40 of 2007. The former against the order passed in Ext.P4 application, and the latter, against the order passed in Ext.P2 application of the plaintiff. The learned District Judge, after hearing the counsel on both sides, disposed the appeals by Ext.P11 common judgment. The appeal preferred against the order of the Munsiff allowing Ext.P2 application of the plaintiff and granting him interim injunction against the defendants from interfering with B schedule pathway till disposal of the suit was confirmed by the learned District Judge dismissing C.M.A.No.40 of 2007. However, the order passed by the learned Munsiff in Ext.P4 application for interim mandatory injunction challenged in C.M.A.No.39 of 2007 was set aside by the learned District Judge with a direction to the trial court to postpone the relief of mandatory injunction at the time of final disposal of the suit. A further direction was also made that its disposal can be preferably done with the application moved by the plaintiff WPC.26789/09 6 under Order XXXIX Rule 2-A of the Code of Civil Procedure for prosecution of the defendants for violating the order of injunction passed by the court. Plaintiff has filed the writ petition challenging the propriety and correctness of Ext.P11 common judgment of the learned District Judge to the extent of the decision rendered in C.M.A.No.39 of 2007 in reversal of the order of the learned Munsiff granting the interim mandatory injunction directing the defendants to restore the statusquo granted over B schedule pathway, invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 4. I heard the counsel on both sides. The learned counsel for the petitioner inviting my attention to the commission reports filed in the case, both at the instance of the plaintiff and also that of the defendants, contended that the obstruction caused over B schedule pathway, that too, violating the order of injunction passed by the court, has blocked completely the access to A schedule property and its enjoyment. Observation made by the learned District Judge in WPC.26789/09 7 Ext.P11 judgment that the obstructions caused do not prevent the plaintiff from exercising the right of walking or using cycles through B schedule way is taken serious exception to by the learned counsel contending that there was total misreading of the materials and forming of wrong conclusion, and it has resulted in manifestation of injustice. In the given facts of the case and the materials placed, the view expressed as above was impermissible, and it has resulted in grave injustice, is the further submission of the counsel. On the other hand, the learned counsel for the 2nd respondent submitted that no interference with Ext.P11 judgment rendered by the learned District Judge is called for as the materials would show that there is an alternate way for access to A schedule property, and no prejudice has been caused to the petitioner/plaintiff by the directions issued for consideration of the petition for interim mandatory injunction in the final disposal of the suit. A time limit disposal of the suit can be ordered by this Court for an expeditious completion of the trial to give a quietus to the whole controversy, and the disputed question can be left to be WPC.26789/09 8 adjudicated upon in the trial of the suit, is the further submission of the learned counsel. Canvassing for non interfering with Ext.P11 judgment of the learned District Judge, by which, interim mandatory injunction granted by the learned Munsiff to restore the B schedule pathway had been vacated, the learned counsel highlighted the limit within which exercise of the visitorial jurisdiction of this Court under Article 227 of the Constitution of India can be resorted to. Conclusion formed by the learned District Judge for vacating the order of interim mandatory injunction is not liable to be interfered with in the absence of satisfactory grounds to show that the order rendered by the court below is perverse or it suffered from jurisdictional infirmity, is the further submission of the learned counsel for the 2nd respondent. 5. From the submissions made and also perusing Ext.P11 judgment rendered by the learned District Judge, as I find that a reconsideration of the order passed by the learned District Judge setting aside the order passed by the learned Munsiff in I.A.No.488 of 2007 with direction to postpone the WPC.26789/09 9 relief of mandatory injunction at the time of final disposal of the suit, warrants interference to avoid the observations of this Court influencing the trial of the suit and also the decision to be rendered by the learned District Judge, on remission of the case, I refrain from dilating on various aspects presented in the case, which, prima facie, indicate of flagrant flouting of the orders of the court with impunity, and thus, interfering with the administration of justice and the majesty of the court. The reports filed by the Advocate Commissioner from time to time, copies of which are exhibited in the writ petition, prima facie disclose that despite the order of interim injunction passed by the court, the statusquo ante prevailing over B schedule property was materially altered as if the order of injunction passed by the court is of no consequence. Ext.P3 is the copy of the report of the Commissioner as to his visit on 17.3.2007 over the suit property. He has reported that to reach A schedule property, there is only B schedule pathway. Ext.P5 is the next report of the Commissioner with regard to his inspection conducted on 30.3.2007. The Commissioner has reported the changes that has occurred to B schedule WPC.26789/09 10 pathway after his first visit, reporting that soil had been dumped to a height of 17 feet and to a width of 15 feet and such dumping of soil apparently indicated that it was done hardly two days ago. Ext.P8 is the report of the Commissioner over his third visit on 21.6.2007. In respect of the changes over the B schedule pathway, after his previous visit, Commissioner has reported that two angili woods having the length of 20 feet and circumference of 50 inches were seen over that way. Ext.P9 is the copy of the report over the inspection conducted by the Commissioner on 15.7.2007. He has reported that over the B schedule pathway, soil had been dumped upto a height of 15 feet. He would further reported that from B schedule pathway, having a width of 12 feet, after his last visit on 21.6.2007, it was seen that there was further dumping of soil on the northern property of the 1st defendent upto a distance of 25 meters. I have referred only to the changes reported by the Commissioner with respect to the B schedule pathway as noticed from the inspections conducted from time to time, which are recorded in his reports. Ext.P5 report prepared by the Commissioner, after his visit on WPC.26789/09 11 30.3.2007, clearly spelt out that almost in the middle portion of the B schedule pathway, soil had been dumped to a height of 17 feet and to a width of 15 feet. He has also reported that in view of that dumping, none could pass, leave alone plaintiff, to the A schedule property. Subsequent reports filed by him show further dumping of soil not only over the B schedule pathway, but in the property belonging to the 1st defendant on the northern side. The learned Munsiff, after considering the materials placed, had found that this was a case where the interim mandatory injunction applied for by the plaintiff to restore the statusquo ante over the pathway removing the soil dumped over B schedule was warranted. Interim mandatory injunction allowed by the learned Munsiff vide Ext.P10 order is seen set aside by the learned District Judge under Ext.P11 order with the following observations: “The plaintiff has no case that due to the deposit of soil the passage along the B schedule is hindered or obstructed. There is also no case for the plaintiff that they were prevented their access into the A schedule through the plaint B schedule. The description of plaint B schedule shown that it is a passage having an approximate WPC.26789/09 12 length of 100 metre and a width of 1.5 metre and therefore any vehicular passage is not possible through the B schedule. Hence the plaintiff can have the right of walking or the right of using cycles through the passage. There is no case that walking or cycling is adversely affected due to the deposit of soil. The plaintiff has filed application before the trial court seeking action against the defendants for violating the court order. That application is pending and the court has to decide as to whether the defendants have violated the court order of injunction on adducing evidence. Considering the over all facts and circumstances slight modification of the order of the trial court is required to meet the ends of justice. There is apprehension on the part of the plaintiff that the defendants will meddle with the B schedule property. Therefore, the order granting prohibitory injunction restraining them from committing acts of waste or mischief or any acts detrimental to the peaceful enjoyment of B schedule way till the disposal of the suit must continue. The order of the trial court directing the defendants to restore the plaint B schedule property to its original condition has to be modified as there is no evidence to show that the defendants have deposited soil on the passage violating the order of injunction.” Observations made as above by the learned District Judge, needless to point out, are against the case advanced by the WPC.26789/09 13 plaintiff and also the material circumstances disclosed by the Commission reports. Dumping of soil to a height of 17 feet and a width of 15 feet in the middle portion of the pathway, which is stated to be having only a width of 1.5 metre, as stated in Ext.P11 order, needless to point out, would render it impossible for walking or using cycles though that way. The definite case of the plaintiff is that after the passing of the interim order of injunction, it was violated by dumping of soil over B schedule pathway. Confirming the interim order of injunction given by the court where materials disclosed that it had been violated and the statusquo ante had been disturbed and trampled upon, is nothing but a mockery of justice, if no effective orders are passed for undoing the mischief that has been committed. Direction issued by the learned District Judge that the question regarding the relief of mandatory injunction canvassed by the petitioner/plaintiff has to be relegating to the final disposal of the suit preferably with the application moved for taking prosecution steps against the defendants for violating the order of injunction, in the given facts of the case, is patently incorrect and unsustainable as it WPC.26789/09 14 would amount to perpetrating the injustice and adding insult to injury. Ext.P11 common judgment to the extent of allowing of C.M.A.No.39 of 2007, which was preferred against the order passed by the learned Munsiff in I.A.No.488 of 2007 warrants interference to safeguard the interest of justice. So much so, the reversal of the order of the learned Munsiff granting interim mandatory injunction by the learned District Judge in the above appeal is set aside directing the court below to consider that appeal afresh with reference to the materials tendered and in accordance with law after hearing the counsel on both sides. C.M.A.No.39 of 2007 shall be heard and disposed afresh by the court below within three weeks from the date of receipt/production of a copy of this judgment. Writ petition is disposed as indicated above. S.S.SATHEESACHANDRAN JUDGE prp