IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 WP(C).No. 12877 of 2008(G) ----------------------------------------- OS.1761/2007 of PRL.M.C.,TRIVANDRUM .................... PETITIONERS : ------------------- 1. SAROJINI,D/O. VISALAKSHI AMMA T.C. 14/1394,BINU COTTAGE VAZHUTHACAUD, THIRUVANANTHAPURAM-14 2. BINU.V.S,S/O. A. VELAYUDHAN T.C. 14/1394,BINU COTTAGE VAZHUTHACAUD, THIRUVANANTHAPURAM-14 BY ADV. SRI.T.KRISHNAN UNNI (SR.) SRI.SAJU.S.A RESPONDENTS: ---------------------- P.RAVEENDRAN,S/O. C.V.PARAMESWASRAN PILLAI MANAGER, M/S. AARATHI CONSTRUCITONS T.C. 14/1749 IST FLOOR VAZHUTHACAUD, THYCAUD VILLAGE, THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 12877 OF 2008 = = = = = = = = = = = = = = = Dated this the 11th day of April, 2008. J U D G M E N T This writ petition is filed against the concurrent findings rendered by two Courts whereby the Courts have used their discretion to grant the extraordinary jurisdiction of granting an interim mandatory injunction by directing the defendant in the suit to put back the plaintiff in possession of the property. 2. Admittedly the plaintiff is/was a tenant of the defendant. The Court found that there was a suit and subsequently RCP 9/03 was filed wherein there was a compromise by which the period of tenancy by two years was extended ending with 30.5.05 and the monthly rent was increased. After the expiry of two years period the defendant filed Execution Petition for recovery of the building but the execution Court dismissed the execution petition stating that by virtue of the compromise a fresh lease has W.P.C 12877 OF 2008 -:2:- been created. Thereafter the defendant moved RCP 13/07 and on the basis of the same had obtained a decree. The decree was obtained on 9.10.07. It is submitted that there was an attempt for forceful eviction of the plaintiff and it has materialized on the night hours on 25.10.07. When the plaintiff came with other staff he saw the front door lock of the schedule building was broke opened and a new padlock and lock was placed. A complaint was filed. The petitioner filed I.A.8952/07 for interim mandatory injunction. 3. On the other hand the defendant would contend that after the second order of eviction the property was put into possession of the landlord on 6.10.07 and thereafter he handed over the key to the defendant through his agent on 24.10.07. So the crux of the matter is whether there has been a surrender of the premises by the plaintiff in the case to the landlord namely the defendant on 24.10.07. The factual matrix available in the case would reveal that he did not surrender the property contending that the lease has been extended by virtue of a compromise which forced the W.P.C 12877 OF 2008 -:3:- landlord to file a petition for eviction. It was decreed exparte. When such is the situation one will expect at least a piece of paper which would reveal that the key has been handed over or under ordinary circumstances an attempt should have been to move an application before the Court for recording the handing over of the key. Nothing has been done in this case. The Court below had also taken into consideration the Commissioner's report made available and the Commissioner had reported that there was a new padlock provided to the door. The Court below opined that there was no need for removing old lock by breaking open the padlock and closing the same with new lock. So Courts arrived at a decision that it was only a forceful eviction of the premises by the defendant in the suit. 4. Now, the question is whether it is to be given back to the tenant or not. It is true that the order for interim mandatory injunction is an exceptional remedy and unless there are sufficient grounds and circumstances it shall not be resorted to. The learned counsel for the writ petitioner W.P.C 12877 OF 2008 -:4:- would argue before me that whether there has been a forceful eviction or not is a matter which requires consideration by the Court after evidence and therefore it was not proper on the part of the Court to have issued an order of mandatory injunction. But it is to be held that when a tenant who has suffered a decree for eviction is ousted without recourse to due process of execution the Court can always interfere in stalling the same and restore it to the original position so that the person who had obtained the decree can make recourse to the law and take over the property. I feel it is a fit case where exceptional circumstances exist for granting an interim mandatory injunction otherwise it will be impossible for a law abiding citizen to survive and therefore I do not propose to interfere with the orders passed by the Court below granting an order of interim mandatory injunction. Therefore the writ petition lacks merit and it is dismissed. 5. I make it further clear that the trial court shall dispose of the suit untramelled by the observations contained W.P.C 12877 OF 2008 -:5:- in its own judgment or in the judgment of the District Judge or of this Court. M.N. KRISHNAN, JUDGE. ul/-