IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 CRP.No. 715 of 2008(A) --------------------------------- AGAINST THE ORDER DATED 21/07/2008 IN IA.NO. 813/2007 IN OS.NO.174/2007 OF MUNSIFF MAGISTRATE COURT,PONNANI. .................... PETITIONER/RESPONDENT: ---------------------------------------- P.K.NAFEESA, AGED 51 YEARS, D/O.MUHAMMED, PADATHUKULANGARA, KUTTIPALA AMSOM, NELLISSERI DESOM, PONNANI TALUK. BY ADV. MR. C.V.MANUVILSAN. RESPONDENT/ PLAINTIFF: --------------------------------------- FATHIMA, AGED 56 YEARS, W/O.HASSAN, PADUTHUKUNGARA HOUSE, KUTTIPALA AMSOM, NELLISSERI DESOM, PONNANI TALUK. BY ADVS. MR.SANTHEEP ANKARATH, MR.T.P.RAMACHANDRAN (THACHETH). THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.715 OF 2008 -------------------------- Dated this the 21st day of October 2009 ------------------------------------- ORDER Revision is filed against the order dated 21/07/07 in I.A No.813 of 2007 in O.S No.174 of 2007 on the file of Munsiff Magistrate Court, Ponnani. Defendant in the above suit is the revision petitioner, and the respondent is the plaintiff. Suit is one for perpetual prohibitory injunction to restrain the defendant from interfering with the right of enjoyment of the plaintiff over 'D' schedule pathway. In the suit, the plaintiff moved an application for interim injunction in which a statusquo order was passed. An Advocate commissioner deputed by the court conducted local inspection of the property on the date the order of status quo was passed by the court. The very next day the defendant interfered C.R.P.No.715 OF 2008 Page numbers with the pathway and reduced portions of that pathway putting up some constructions was the case canvassed by the petitioner to move a subsequent application under Section 151 of the Code of Civil Procedure seeking an interim mandatory injunction. The very same advocate commissioner who was deputed earlier by the court again conducted local inspection and filed a report which prima facie indicated that the status quo ordered by the court had been interfered with. The defendant filed objections to the application moved by the plaintiff for interim mandatory injunction. On the materials placed and after hearing the counsel on both sides, the learned Munsiff arrived at the conclusion that the defendant wilfully violated the order of status quo after having notice of the order passed by the court. On reaching such conclusion an interim mandatory injunction as prayed for by the plaintiff and as determined by C.R.P.No.715 OF 2008 Page numbers the commissioner to the extent of which the pathway was meddled with was ordered directing the defendant to restore the status quo ante. Propriety and correctness of that order is challenged in the revision. 3. I heard the counsel on both sides. Learned counsel for the petitioner submits relying on “Dorab Cawasji Warden v Coomi Sorab Warden and Others” (1990(2) SCC 117) and also “Metro Marins and Another v Bonus Watch Co. Pvt.Ltd. and Others” (AIR 2005 SCC 1444) that in granting the interim mandatory injunction the court below has not considered the principles to be applied in the grant of such relief and the impugned order is therefore liable to be set aside. The defendant was not served with the notice of status quo on the date when the alleged meddling with the pathway was imputed against him is the further submission C.R.P.No.715 OF 2008 Page numbers of the counsel. Perusing the impugned order passed by the court below with reference to the facts and circumstances presented, I find the decisions canvassed by the learned counsel for the petitioner are not applicable to the present case. In the suit, according to the plaintiff, the status quo ordered at the time of its institution was later interfered with by the defendant. According to the plaintiff, it was so done after having notice of the interim order directing the parties to maintain status quo. Irrespective of the question whether there is an interim order or not, was there any alteration or change of the subject matter of the suit after the visit of the commissioner is the question to be examined in the present case to consider whether the discretionary relief of interim mandatory injunction applied by the plaintiff deserve consideration. Viewed in that angle and examined with reference to the two C.R.P.No.715 OF 2008 Page numbers commission reports filed, it is prima facie evident that 'D' schedule pathway was interfered by the defendant after the first visit of the advocate commissioner. When that be the position, I find no impropriety or illegality in the order passed by the court below allowing the application moved by the plaintiff for interim mandatory injunction. In the decision “ Dorab Cawasji Warden v Coomi Sorab Warden and Others” (1990(2) SCC 117), the interim mandatory injunction granted which came up for consideration before the apex court related to a case where the trial court passed an interim mandatory injunction directing one of the respondents not to continue in possession. Similarly in the other case, “Metro Marins and Another v Bonus Watch Co. Pvt. Ltd. And Others”(AIR 2005 SCC 1444), with the filing of the suit, the plaintiff had filed an application for interim mandatory injunction to hand over C.R.P.No.715 OF 2008 Page numbers possession of the property by the defendant. It was in the context of the facts involved in those cases the apex court has pointed out the guide lines to be followed in the granting of interim mandatory injunction. Those two decisions do not relate to a case where a status quo on the date of presentation of the suit was interfered or meddled by the defendant or his agent. So much so, as already indicated, the decisions relied by the counsel have no application to the present case. The order passed by the court below by the learned Munsiff in the facts and circumstances presented is correct, valid and proper. Revision is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv