Remanded

T.K.Thomas v. Antony K.V. @ Jose

Kerala HC26 Jul 2018OP(C)/1363/2018

Case brief

AI extract

What is this about?

This 54 Paragraph judgment of the Kerala High Court disposed of an appeal against a lower court order refusing mandatory injunction. The court held that restoring ante status quo ante is the rule for interim mandatory injunction when prima facie evidence exists. The lower court order was set aside and matter remanded for fresh disposal.

What did the court decide?

Order of lower court set aside; matter remanded for fresh disposal with time limit of two months.

T.K.Thomas Vs Antony K.V. @ Jose — Property and Title | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940

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OP(C).No. 1363 of 2018

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AGAINST EXT.P10 ORDER DATED 7.12.2017 IN I.A.NO.3200/2016 IN O.S.NO.245 OF 2016 OF THE COURT OF THE MUNSIFF, THIRUVALLA.

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PETITIONERS/PETITIONERS/PLAINTIFFS

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1 T.K.THOMAS,

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AGED 74, RETD. GOVT. EMPLOYEE, S/O. T.T.THOMAS,

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THEVARUKATTIL, ANJILITHANAM MURI,

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KUNNANTHANAM VILLAGE, MALLAPPALLY TALUK.

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2 SARAMMA THOMAS, W/O. T.K. THOMAS,

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THEVARUKATTIL, ANJILITHANAM MURI,

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KUNNANTHANAM VILLAGE, MALLAPPALLY TALUK.

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BY ADVS.SRI.CHERIAN GEE VARGHESE

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SRI.P.HARIDAS SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS

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RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS:

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ANTONY K.V. @ JOSE, AGED 55, AGRICULTURAL WORKER, KOCHUPARAMBIL HOUSE, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT - 689 584.

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KUNJUMOL ANTONY @ KUNJUMOL, HOMEMAKER, AGED ABOUT 50, W/O. ANTONY K.V., KOCHUPARAMBIL HOUSE, ANJILITHANAM MURI, KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT - 689 584.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 26-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 1363 of 2018 (O)

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APPENDIX

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PETITIONERS' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.245/2016 OF MUNSIFF'S COURT, THIRUVALLA DATED 28.04.2016.

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EXHIBIT P2 TRUE COPY OF THE REPORT AND ROUGH SKETCH DATED 30.04.2016 IN O.S.NO.245/2016.

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EXHIBIT P3 TRUE COPY OF THE REPORT OF THE COMMISSIONER DATED 27.09.2016 IN O.S.NO. 245/16.

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EXHIBIT P4 TRUE COPY OF I.A.NO. 3200/2016 FILED BEFORE THE MUNSIFF'S COURT, THIRUVALLA DATED 17.10.2016.

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EXHIBIT P5 TRUE COPY OF THE PLAINT IN O.S.NO. 298/2016 FILED BEFORE THE MUNSIFF'S COURT, THIRUVALLA DATED 15.06.2016.

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EXHIBIT P6 TRUE COPY OF THE REPORT AND ROUGH SKETCH DATED 01.07.2016 IN O.S.NO. 298/16.

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EXHIBIT P7 TRUE COPY OF PETITION DATED 19.10.2016 FILED FOR JOINT CONSIDERATION OF SUITS.

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EXHIBIT P8 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP(C) 3013/2016 DATED 13.01.2017.

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EXHIBIT P9 TRUE COPY OF THE ORDER IN I.A.NO. 1423/2016 DATED 16.02.2017.

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EXHIBIT P10 TRUE COPY OF THE ORDER IN I.A.NO. 3200/2016 DATED 07.12.2017.

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RESPONDENTS' EXHIBITS: NIL

//TRUE COPY//

AHZ/

“C.R.”

P.Somarajan, J.

O.P.(C) No.1363 of 2018

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Dated this the 26^th day of July, 2018

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JUDGMENT

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Aggrieved by Ext.P10 order, dated 7.12.2017, in I.A.No.3200 of 2016 in O.S.No.245 of 2016 of the Munsiff's Court, Thiruvalla,

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refusing to consider the prayer for mandatory injunction, the plaintiffs came up with this original petition under Article 227 of the Constitution of India.

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The allegation is that after the institution of the suit an exparte commission was issued at the instance of the plaintiffs, who in turn visited the property and prepared a mahazar and plan wherein the non-existence of a pathway as alleged by the defendants was also reported, but interim injunction was not granted at that time, which has resulted in the demolition of the structures in a portion of the property and construction of a new pathway. So, a second commission was also issued, who in turn visited the property and prepared a rough sketch, mahazar and report. Though the lower court

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O.P.(C) No.1363 of 2018

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:: 2 ::

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has granted a permanent prohibitory injunction, based on Ext.P8 order passed by this court, the prayer for granting interim mandatory injunction was not considered at that stage. When it was brought to the notice of the lower court, a single line order has been passed after narrating the factual situation involved in the case without going into its merits and demerits. Aggrieved by the said order, the plaintiffs came up with this original petition.

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An interim mandatory injunction can be granted only in

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exceptional circumstances. It is not proper to grant interim mandatory injunction when the suit itself was for the grant of the very same relief by way of a decree of mandatory injunction. But when the party seeks to restore ante status quo position of the suit property, the legal position would be different and it would be an exceptional circumstance under which the court can grant a mandatory injunction directing to remove the obstruction, whatever structure or construction made in the property after the institution of the suit. If it is for restoring the ante status quo position as on the date of the institution of the suit and when there is prima facie evidence, it would

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O.P.(C) No.1363 of 2018

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:: 3 ::

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cast a duty on the court to preserve the property as such as on the date of its institution, hence granting of interim mandatory injunction for restoring ante status quo position of the suit property is the rule and not the exception. The lower court ought to have looked into the question whether the way in question was put up after the institution of the suit or not and when there is prima facie evidence that it was put up subsequent to the suit certainly the jurisdiction vested with the court under Order XXXIX Rule 1 of the Code of Civil Procedure for granting of interim mandatory injunction has to be exercised. That has not been done by the lower court in the present case. Hence the order of the lower court is hereby set aside. The matter is remanded back to the lower court for fresh disposal in accordance with the law in force. The lower court shall dispose of the said application within a time limit of two months from the date of receipt of a copy of this judgment.

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The original petition is disposed of as above. No costs.

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Sd/P. Somarajan Judge

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ahz/

T.K.Thomas v. Antony K.V. @ Jose

Case brief

What is this about?

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T.K.Thomas v. Antony K.V. @ Jose

Case brief

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