IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 OP(C).No. 9 of 2010(O) ---------------------- OS.89/2007 of MUNSIFF COURT,THODUPUZHA .................... PETITIONERS: -------------------- 1. SHAJAN,S/O.JOSEPH,AGED 41,THOTTUPATTU HOUSE,KODIKKULAM KARA,KODIKKULAM VILLAGE, THODUPUZHA TALUK 685582. 2. RAJU JOHN,S/O.JOHN,AGED 41,THOYALIL HOUSE,KODIKKULAM VILLAGE 685582. 3. JOSHYA.CHEMPARATHY,S/O.AUGUSTINE,AGED 41,CHEMPARATHY HOUSE,MUTHALAKODAM KARA, THODUPUZHA VILLAGE 685605. BY ADV. SRI.K.JAYAKUMAR.K, SENIOR ADVOCATE SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN RESPONDENTS: --------------- 1. JOSEPH,S/O.ULAHANNAN,AGED 67, CHEMPARATHY,KALAPPURAYIL HOUSE, MUTHALAKODAM KARA,THODUPUZHA VILLAGE 685605. 2. PAILY,S/O.ULAHANNAN,AGED 73, CHEMPARATHY,KALAPPURAYIL HOUSE, MUTHALAKODAM KARA,THODUPUZHA VILLAGE 685605. 3. THOMMAN PAILY @RAJU,S/O.PAILY,AGED 40, CHEMPARATHY,KALAPPURAYIL HOUSE, MUTHALAKODAM KARA,THODUPUZHA VILLAGE 685605. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.9 of 2010 --------------------------------------- Dated this 23rd day of September, 2010 JUDGMENT Petitioners, pendente lite transferees have filed this petition challenging Ext.P8, order by which learned Munsiff has directed implementation of the order of mandatory injunction passed on I.A.No.488 of 2007 with police assistance. Respondent No.1 filed a suit for injunction against respondent Nos.2 and 3 for enforcement of his right of way along plaint B schedule way to the plaint A schedule belonging to them. Along with the institution of suit, respondent No.1 filed application for temporary injunction and an interim order of injunction was passed restraining respondent Nos.2 and 3 from causing obstruction to the user of the said pathway. Advocate Commissioner inspected the property and submitted report stating about existence of plaint B schedule pathway as pleaded by respondent No.1. Later there was some attempt on the part of respondent Nos.2 and 3 or somebody else on their behalf to interfere with plaint B schedule pathway and thereon, respondent No.1 filed I.A.No.488 of 2007 for an order of mandatory injunction claiming that his only access to plaint A schedule is O.P(C).No.9 of 2010 : 2 : through plaint B schedule way and obstruction caused to it has affected his access to plaint A schedule. Learned Munsiff allowed that application. Accordingly, there was an order of mandatory injunction directing respondent Nos.2 and 3 to restore the pathway to its original position. Respondent Nos.2 and 3 challenged the order of prohibitory and mandatory injunction in C.M.A.Nos.39 and 40 of 2007. Learned District Judge confirmed the order of prohibitory injunction but directed that claim regarding mandatory injunction can be decided along with the suit. Respondent No.1 challenged that order in this court in W.P.C.No.26789 of 2009 and this court by judgment dated November 20, 2009 set aside the order of learned District Judge and directed learned District Judge to consider C.M.A.No.39 of 2007 afresh. Learned District Judge considered the appeal and confirmed the order passed by learned Munsiff on I.A.No.488 of 2007 (allowing mandatory injunction). That order became final. Thereafter there was delay in learned Munsiff executing the order on I.A.No.488 of 2007. Aggrieved, respondent No.1 filed I.A.No.138 of 2010 for implementation of the order of mandatory injunction on I.A.No.488 of 2007 and since respondent No.1 thought that the matter is being delayed he approached this court with W.P.C.No.2144 of 2010. This court by judgment dated O.P(C).No.9 of 2010 : 3 : May 24, 2010 directed learned Munsiff to enforce the order of mandatory injunction on I.A.No.488 of 2007. Since the Advocate Commissioner reported that there was some obstruction by 3rd parties in executing the order on I.A.No.488 of 2007, learned Munsiff has issued Ext.P8, order to enforce the order of mandatory injunction with the assistance of police. Petitioners who purchased the property from respondent Nos.2 and 3 pendente lite filed applications for their impleadment in the suit, to stay execution of order for restoration of the disputed pathway and proposing that a road laid by them in connection with development of the property purchased by them could be used by respondent No.1 in settlement of his claim. Learned Munsiff has allowed the application for impleadment but dismissed I.A.No.1496 of 2010 for stay of operation of order on I.A.No.488 of 2007. Hence this writ petition. Learned Senior Advocate appearing for petitioners contends that it was only on 07-09-2010 that petitioners were impleaded in the suit and they purchased the property from respondent Nos.2 and 3 unaware of the pending litigation or the right sought to be enforced by respondent No.1 through plaint B schedule. Learned counsel has produced documents to show that petitioners have developed the property purchased by them from respondent Nos.2 and 3 and O.P(C).No.9 of 2010 : 4 : that in settlement of the claim made by respondent No.1, he could be permitted to use the road that has been laid by them. It is also contended by learned Senior Advocate that if the order of mandatory injunction on I.A.No.488 of 2007 is to be enforced, it would become necessary to dig up the property at a depth of about 15 meters to mark out the pathway and that would involve much hardship to the petitioner. In these circumstances learned counsel prayed that Ext.P8, order passed by learned Munsiff on I.A.No.138 of 2010 ordering police assistance for enforcement of the order of mandatory injunction may be set aside and learned Munsiff may be directed to pass appropriate orders on Ext.P9, application where petitioners have made an alternative proposal for the benefit of respondent No.1. A further prayer is that learned Munsiff may be directed to enforce Section 89 of the Code of Civil Procedure, 1908 (for short, “the Code”) for settlement of the dispute. It is also prayed that in the meantime further proceedings pursuant to Ext.P8, order may be kept in abeyance. 2. Learned counsel for respondent No.1 contends that whatever that transpired at spot was with the knowledge of petitioners and that petitioners cannot now wash off their hands claiming that they were unaware of pendancy of litigation. Learned counsel states that when W.P.(C).No.26789 of 2009 was O.P(C).No.9 of 2010 : 5 : pending in this court one of the petitioners had even taken part in the mediation that took place at the mediation center of this court which did not fructify. Petitioners have purchased the property from respondent Nos.2 and 3 pendente lite, and hence petitioners are not entitled to seek any relief as prayed for. It is also contended that so far as enforcement of the order on I.A.No.488 of 2007 is concerned, that has become final by the judgment of this court in W.P.(C).No.2144 of 2010 directing learned Munsiff to enforce the stay order even before going for trial of the suit. Learned counsel contends that at this stage there is no scope for invoking Section 89 of the Code as requested by learned Senior Advocate. 3. It is not in dispute that it is after the impugned orders were passed that petitioners purchased property from respondent Nos.2 and 3 through which disputed B schedule way existed. It is not disputed that Advocate Commissioner inspected the property immediately after institution of the suit and when he visited the property a second time consequent to I.A.No.488 of 2007 he could not find the said pathway. It follows that in the meantime the pathway was interfere with either by respondent Nos.2 and 3 or, somebody else on their behalf. It is in these circumstances that learned Munsiff allowed I.A.No.488 of 2007 and that order has O.P(C).No.9 of 2010 : 6 : become final. The further fact which I have to bear in mind is that as per report submitted by the Advocate Commissioner respondent No.1 has no other means of access to the plaint A schedule except plaint B schedule. Now the question is whether grievance of petitioners is required to be redressed in this proceeding. 4. The Supreme Court in Marirudraiah and Ors. Vs. B. Sarojamma and Ors. (2009(3) Supreme 309) has stated that courts are not supposed to encourage pendente lite transactions and regularise their conduct by showing equity in their favour. A learned Single Judge of this court in Ananda Pai Vs. Gopala Pai (2010(1) ILR Kerala 715) held that pendente lite transferee is not entitled to get an order of injunction against the plaintiff and that any such procedure is prima facie malafide. As I stated, petitioners purchased the property from respondent Nos.2 and 3 admittedly after the order of temporary injunction was passed in the case. If that be so, petitioners could very well see existence of plaint B schedule way the Advocate Commissioner found at the time of first inspection. Respondent No.1 states that one of petitioners had taken part in the mediation that took place during the pendancy of W.P.(C).No.26789 of 2010 in this court. I find no reason why I should reject that assertion of learned counsel. If that be so, it is idle for petitioners to contend that they were unaware of O.P(C).No.9 of 2010 : 7 : the pendancy of the suit or order of mandatory injunction whatever be the assertion of respondent Nos.2 and 3 may have made in the assignment deeds in favour of petitioners that there is no encumbrance over the property. It follows that petitioners are bound by the orders passed by the learned Munsiff pertaining to plaint B schedule. 5. Then the next question is whether at this stage the alternative way suggested by petitioners has to be accepted and further proceedings for enforcement of the order on I.A.No.488 of 2007 is to be stayed. This court while disposing of W.P.(C).No.26789 of 2010 has referred to the flagrant violation of the order of prohibitory injunction indulged by respondent Nos.2 and 3 or his men whoever they may be. Paragraph 5 of the judgment in W.P.(C).No.26789 of 2010 describes attempts made by respondent Nos.2 and 3 or their men to violate the order of temporary injunction. When there was delay in enforcement of the order of mandatory injunction, this court by judgment in W.P.(C). No.2144 of 2010 interfered and directed learned Munsiff to enforce the order of injunction without waiting for trial of the suit. 6. A request is made to refer the dispute for arbitration under to Section 89 of the Code. Respondent No.1 is not agreeable to any such alternative mode of redressal of the dispute. The O.P(C).No.9 of 2010 : 8 : Supreme Court in V.K.Enterprises Vs. Shiva Steel (2010(3) KLT S.N 75 - Case No.82) has stated that unless the parties to the litigation assent, question of arbitration did not arise. On the face of resentment of respondent No.1 to arbitration, no resort could be had to Section 89 of the Code. 7. Then the next question is whether respondent No.1 should be asked to be satisfied with the alternative way suggested by petitioners. Learned counsel for respondent No.1 states that respondent No.1 is not agreeable for that course. He has obtained favourable orders in this suit. In such a situation respondent No.1 could not be compelled to agree for the alternative way suggested by the petitioners. In the circumstance the reliefs requested for by petitioners cannot be allowed. This petition fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-