Dismissed

Mohideen Kutty Haji and 3 Others v. Hamsa & 2 Others

Kerala HC10 Feb 2011OP(C)/576/2011

Case brief

AI extract

What is this about?

The High Court refused interference under Article 227 with the appellate court order. It held that plaintiffs misused an interim injunction order by erecting pillars blocking the disputed way, thereby altering the status quo and disentitling them to relief under Section 41(i) of the Specific Relief Act. The appellate court was correct in dismissing the appeals and granting an injunction to restore

What did the court decide?

Affirmed the dismissal of the Original Petition against the appellate order.

Mohideen Kutty Haji and 3 Others Vs Hamsa & 2 Others — Property and Title | Kerala HC (2011)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

THE HONOURABLE MR. JUSTICE K.T.SANKARAN

¶3

THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932

¶4

OP(C).No. 576 of 2011(O)

¶5

AGAINST THE ORDER IN C.M.A.NO.15/09 AND C.M.A.NO.16/09, SUBCOURT, TIRUR IN O.S NO.31/09. MUNSIFF COURT, PARAPPANANGADI

¶6

PETITIONERS:

¶7

--------------------

¶8

1. MOHIDEEN KUTTY HAJI, AGED 60 YEARS, S/O. MOHAMMED HAJI, KANNANGHATTU PALLIKAL (H) PANTHARANGADI P.O., THIRURANGADI TALUK, TRIKKULAM AMSHAM DESHAM, MALAPPURAM DISTRICT

¶9

2. AYOOB, AGED 44 YEARS, S/O. AHAMMED KUTTY HAJI, KANNANGHATTU PALLIKAL (H), PANTHARANGADI P.O. THIRURANGADI TALUK, TRIKKULAM AMSHAM DESHAM, MALAPPURAM DISTRICT.

¶10

3. UMAR, AGED 33 YEARS, S/O.AHAMMED KUTTY HAJI, KANNANGHATTU PALLIKAL (H), PANTHARANGADI P.O., THIRURANGADI TALUK, TRIKKULAM AMSHAM DESHAM, MALAPPURAM DISTRICT.

¶11

4. ANWAR, AGED 31 YEARS,S/O.AHAMMED KUTTY HAJI, KANNANGHATTU PALLIKKAL (H) PANTHARANGADI P.O., THIRURANGADI TALUK, TRIKKULAM AMSHAM DESHAM, MALAPPURAM DISTRICT

¶12

BY ADV. SRI.M.T.BALAN SRI.VIJUBALA.B SMT.PRIYA BABU

¶13

OP(C).No. 576 of 2011

¶14

RESPONDENTS:

¶15

-----------------------

¶16

1. HAMSA, AGED 61 YEARS, S/O. AHAMMED KUTTY PADINHARE PEEDYAKKAL (H),MOONNIYOOR P.O. THIRURANGADI TALUK, MOONNIYOOR AMSHAM DESHAM, MALAPPURAM DISTRICT PIN - 676311.

¶17

2. FATHIMA, AGED 51 YEARS, W/O.HAMSA, PADINHARE PEEDYAKKAL (H), MOONNIYOOR P.O. THIRURANGADI TALUK, MOOONNIYOOR AMSHAM DESHAM, MALAPPURAM DISTRICT, PIN - 676311.

¶18

3. NASEERA, AGED 21 YEARS, W/O.JAFFER, PADINHARE PEEDYAKKAL (H), MOOONNIYOOR P.O. THIRURANGADI TALUK, MOOONNIYOOR AMSHAM DESHAM, MALAPPURAM DISTRICT, PIN - 676311.

¶19

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶20

dmb

¶21

K.T.SANKARAN, J .

¶22

O.P(C).No.576 OF 2011

¶23

Dated this the 10th day of February, 2011

¶24

JUDGMENT

¶25

The petitioners filed O.S.No.31 of 2009 on the file

¶26

of the Court of the Munsiff of Parappanangadi against

¶27

the respondents for permanent prohibitory injunction
restraining the defendants from constructing building

¶28

in such a manner projecting the sunshades of the
building into the plaint A schedule private road and
restraining the defendants from stocking any material
in the plaint A schedule property so as to cause
obstruction to the plaintiffs' property. Along with
the suit, the plaintiffs filed I.A.No.275 of 2009
praying for temporary injunction. An ad interim order
of injunction was granted by the trial court. After
securing the order of injunction, the plaintiffs
erected 4 concrete pillars in the disputed area thereby
blocking the entry of the defendants. Therefore, the
defendants filed I.A.No.615 of 2009 for an interim
mandatory injunction to direct plaintiffs to remove the

¶29

O.P(C).No.576 OF 2011 2

¶30

concrete pillars.

¶31

2. The trial court considered I.A.Nos.275 of 2009
and 615 of 2009 together and those applications were
disposed of by a common order dated 8th April, 2009. The
trial court dismissed I.A.No.275 of 2009 and allowed
I.A.No.615 of 2009. Accordingly, an interim mandatory
injunction was issued directing the petitioners to
remove the concrete pillars.

¶32

3. Challenging the order passed by the trial court,
the petitioners/plaintiffs filed C.M.Appeal Nos.15 of
2009 and 16 of 2009. The appellate court dismissed the
appeals by a common judgment dated 15th December, 2010.
The plaintiffs challenge the order and judgment in this
Original Petition.

¶33

4. The courts below found that after securing the
interim order of injunction, the plaintiffs misused the
order of injunction, took law into their hands, and
altered the status quo in respect of the disputed
property. These are findings of fact. That the

¶34

O.P(C).No.576 OF 2011 3

¶35

concrete pillars were erected after filing of the suit
is clear from the Commissioner's reports and plans. At

¶36

the time of the first inspection by the Commissioner,
the concrete pillars were not there. After the status
quo was altered, on the application of the defendants,
the Commissioner inspected the property again. At that
time, it was found by the Commissioner that the
concrete pillars were erected. There was ample
evidence before the court to show that status quo of
the property was changed by the plaintiffs after
getting an order of interim injunction. There is no
case for the plaintiffs the concrete pillars were not
erected by them.

¶37

5. The plaintiffs are not entitled to the

¶38

assistance of the court, they having engaged in high
handed activities. Section 41(i) of the Specific
Relief Act provides that an injunction cannot be
granted when the conduct of the plaintiff or his agents
has been such as to disentitle him to the assistance of

¶39

the court. The facts and circumstances of the case

¶40

would indicate that the conduct of the plaintiffs

¶41

O.P(C).No.576 OF 2011 4

¶42

disentitled them from getting any assistance from the
court. Therefore, the courts below were right in
dismissing the application for temporary injunction
filed by the plaintiffs. Since the concrete pillars
were erected, altering the status quo in respect of the
property and thereby preventing the entry of the
defendants to the disputed pathway, the courts below
were justified in issuing an interim mandatory
injunction to restore the status quo.

¶43

6. There is no error of jurisdiction or error of

¶44

law in the order and judgment passed by the courts
below, warranting interference under Article 227 of the
Constitution of India.

¶45

The Original Petition lacks merits and it is

¶46

accordingly, dismissed.

¶47

K.T.SANKARAN,
JUDGE.

¶48

cms

Mohideen Kutty Haji and 3 Others v. Hamsa & 2 Others

Case brief

What is this about?

What did the court decide?

Mohideen Kutty Haji and 3 Others v. Hamsa & 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

C.P.Rajesh Vs State of Kerala

Ratheesh K.R and Others Vs State Bank of Travancore and Others

T.Sreelatha Vs Shibu Sebastian

Joseph Prakash Vs Habeebulla

George Abraham Vs Ranni Marthoma Medical Mission Centre

Unnikrishna Pillai Vs Sukumara Pillai