The High Court of Kerala dismissed a Regular Second Appeal. The court upheld the findings of lower courts that dismissed a suit for permanent injunction because the plaintiff suppressed the existence of a pathway, violating the equitable principle that those seeking equity must do equity.
Regular Second Appeal dismissed; all pending interlocutory applications dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 17TH DAY OF JANUARY 2017/27TH POUSHA, 1938
RSA.No. 35 of 2017
AGAINST THE JUDGMENT AND DECREE DATED 28-09-2016 IN AS 21/2015 of SUB COURT, VATAKARA.
AGAINST THE JUDGMENT AND DECREE DATED 30-03-2015 IN OS 82/2014 of MUNSIFF'S COURT, VATAKARA.
APPELLANT/APPELLANT/PLAINTIFF:
MAHAMOOD,
S/O. MOIDU HAJI, AGED 36 YEARS, NEDUVAYAL THAZHAKUNI, KOTTAPPALLY AMSOM, VALLIAD DESOM, VATAKARA TALUK, P.O. VALLIAD, KOZHIKODE DISTRICT.
BY ADVS.SRI.C.VATHSALAN
SRI.GHOSH YOHANNAN
SRI.K.RAKESH ROSHAN SMT.THUSHARA.V
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1. KELAPPAN, S/O. NOT KNOWN TO THE APPELLANT, AGED 62 YEARS, PEEDIKAKUNI HOUSE, KOTTAPPALLY AMSOM, VALLIAD DESOM, P.O, VALLIAD, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. PIN - 673 542.
2. PRADEEPAN, S/O. KELAPPAN, AGED 44 YEARS, PEEDIKAKUNI HOUSE, KOTTAPPALLY AMSOM, VALLIAD DESOM, P.O, VALLIAD, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. PIN - 673542.
......2
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3. PRAMOD, S/O. KELAPPAN, AGED 39 YEARS, PEEDIKAKUNI HOUSE, KOTTAPPALLY AMSOM, VALLIAD DESOM, P.O, VALLIAD, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. PIN - 673542.
4. NARAYANI, W/O. KELAPPAN AGED 52 YEARS, PEEDIKAKUNI HOUSE, KOTTAPPALLY AMSOM, VALLIAD DESOM, P.O, VALLIAD, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. PIN - 673542.
R1-R4 BY ADVS. SMT.MEENA.A. (CAVEATOR) SRI.SAJU.S.A(CAVEATOR) SRI.VINOD RAVINDRANATH(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. HARILAL, J.
R.S.A. No. 35 of 2017
Dated this the 17th day of January, 2017
JUDGMENT
The appellant is the plaintiff in O.S.No.82/2014 on the files of the Munsiff's Court, Vatakra. The aforesaid suit was filed by the appellant herein claiming prohibitory injunction restraining the respondent/ defendants and their men from trespassing into the plaint schedule property or constructing any road or committing waste in the plaint schedule property belonging to the plaintiff. According to the plaintiff, the defendants have no kind of right over the plaint schedule property. But, they demanded a way through the middle of the plaint schedule property several times. But, the plaintiff refused their request. On 14.3.2014, the defendants attempted to construct a
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road through the plaint schedule property; but, failed due to intervention of the plaintiff. In the above circumstances, he instituted a suit and prayed for a decree of permanent prohibitory injunction.
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pathway through the plaint schedule property.
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courts rejected the equitable relief of injunction.on the ground that the suit is bad for active suppression of material facts and the plaintiff has come before the court, seeking equitable relief with unclean hands. It is trite law that a person, who seeks equity, must do equity. The person, who is guilty of suppression of material facts, is not entitled to get the relief, in exercise of equitable jurisdiction. Therefore, the question to be considered is, whether the courts below can be justified in finding that the appellant has suppressed the material facts in the suit?
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date of suit. In other words, there is no material, on record, to establish the lie and nature of the property, as on the date of suit. Even though that be so, the trial court has passed an temporary injunction order believing the averments in the plaint. But, subsequently, the defendants entered appearance and they filed an application seeking appointment of a Commission, to ascertain the lie and nature of the plaint schedule property and got it allowed. The Commissioner inspected the plaint schedule property and filed Exts.C1 to C3(a) plan. In Ext.C1 Report, the Commissioner has reported the existence of a pathway through the middle of the plaint schedule property.
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Commissioner when he was compelled to remain in the Fathima Hospital on 27/3/2014 onwards, since his sister was admitted in the hospital for delivery and had to undergo an operation on 31/3/2014. Immediately, after returning from the hospital, he lodged a complaint before the police alleging trespass and opening of way through the plaint schedule property against the defendants and Ext.A4 is the Photostat copy of the complaint said to have been filed before the police and Ext.A4 is dated 2/4/2014.
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violation of the injunction order. As correctly observed by the courts below, had there been any such trespass or cutting of road through the plaint schedule property, after filing the suit, when an order of interim injunction was in force against the defendants, certainly, the plaintiff would have immediately moved an application to prosecute the defendants for violation of the injunction order. In the above view of the matter, it cannot be believed that the defendants had trespassed into the plaint schedule property and cut opened the pathway after granting temporary injunction order. Therefore, the courts below are justified in finding that the plaintiff has suppressed the existence of the pathway, while instituting the suit.
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other hand, the defendants had examined D.Ws.2 to 4 to prove the existence of the pathway in the plaint schedule property, even before filing of the suit. After analysing the evidence of D.Ws.1 to 4, the courts below observed that their evidence would probabilise the case of the defendants that the defendants have been enjoying the right of way through the plaint schedule property; but the plaintiff could not adduce evidence to probabilise his case that, at the time of filing of the suit, there was no way through the plaint schedule property and the way was cut opened, after the filing of the suit. Thus, the plaintiff has miserably failed to prove the case set up by him.
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permanent injunction. I do not find any illegality in the findings of the courts below or perversity in the appreciation of evidence from which those findings have come up. No question of law arises for consideration.
Hence, this Regular Second Appeal will stand dismissed. All pending interlocutory applications will also stand dismissed.
Sd/-
(K. HARILAL, JUDGE)
Nan/
//true copy//
P.S. to Judge
3 issues framed by the court
Whether the courts below were justified in finding that the appellant suppressed material facts regarding an existing pathway.
Whether a plaintiff is entitled to equitable relief of injunction when guilty of suppression of material facts.
Whether the trial court and appellate court erred in dismissing the suit and appeal based on unclean hands.
MAHAMOOD
KELAPPAN
PRAMOD
NARAYANI
K. HARILAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
