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2002 Supreme(Ker) 390
Judges : N.KRISHNAN NAIR
K.V.Jose - Appellant
Versus
Managing Director - Respondent
Case No : CRP. No. 595 of 2002
Decided On : 07/03/2002
Advocates Appeared :
For Petitioner: V. Bhaskaran Pillai, Advocate For Respondent: James Koshy, Standing Counsel
Subject
Injunction - Mandatory Injunction
Act Referred
Headnote
Indian Easements Act 1882 – Section 63 – Injunction – Eviction – Held, Court is concerned only whether the action of the Corporation in evicting the petitioners during the pendency of the injunction applications can be justified – Court is not concerned with the ultimate decision in the matter – A mandatory injunction can be issued on an interlocutory application where, with notice of the institution of the suit and the prayer made in the plaint for an injunction to restrain the doing of a certain act, the defendant does that act and thereby alters the factual basis upon which the plaintiff claims his relief – It was further held that an injunction can be issued in such a case so that the defendant may not take advantage of his own act and defeat the suit by saying that the old cause of action no longer survives and a new cause of action for a new type of suit has arisen – It appears that the Corporation has taken it as a licence to evict the petitioners without even honouring the undertaking given by the counsel before the Munsiff court and without waiting for the orders on the interlocutory applications – Action taken by the Corporation in evicting the petitioners during the pendency of the applications for injunction is not in accordance with law and, therefore, the Corporation cannot be heard to say that they evicted the petitioners as per the direction of this Court in W.A.
N. Krishnan Nair, J.
These revision petitions are directed against the common order and judgment of the Additional District Judge, North Paravur in C.M.A. Nos. 40,41 and 42/2002. The facts necessary for the disposal of these petitions may be stated as follows : The revision petitioners were the licensees of the stalls attached to the Kerala State Road Transport bus stand, Aluva and they were conducting business in the respective stalls. Alleging that the petitioners were chronic defaulters of the licence fee, the Kerala State road Transport corporation, initiated proceedings for evicting the petitioners from the stalls. The attempt of the corporation to evict them was being resisted by the petitioners by securing stay orders from this court in several writ petitions. At last they filed the suits, O.S. Nos. 539, 540 and 541/2001 before the Munsiff Court, Aluva for rendition of accounts and consequential reliefs. Along with the plaints, they moved applications for interlocutory injunction to restrain the Corporation from evicting them during the pendency of the suits. All the applications were heard together by the learned Munsiff on 24-1-2002 and the applications were posted for orders on 1-2-2002. But the Corporation evicted the petitioners from the stalls with the help of the police on 26-1-2002, i.e. during the pendency of the applications for injunction. Thereupon the petitioners moved applications before the Munsiff Court to put them back in possession of their respective stalls. The learned Munsiff by a common order dated 4-2-2002 allowed all the applications and the Corporation was directed by an order of mandatory injunction to restore the possession of the respective stalls to the petitions within a period of 10 days. Aggrieved by the order, the Corporation preferred C.M.A. Nos. 40,41 & 42/2002 and the learned Additional District Judge, North Paravur by the impugned judgment set aside the order of the Munsiff and dismissed all the petitions. Aggrieved by the common order dismissing their applications, the petitioners have come up with these revision petitions.
2. The learned counsel for the petitioners strongly contended that the order of the court below is clearly illegal and cannot be sustained either in law or on facts. According to the learned counsel, the counsel for the corporation had given an undertaking before the disposal of the injunction applications and the action of the Corporation in evicting the petitioners during the pendency of the proceedings is clearly illegal. He further contended that there was no direction from this court to evict the petitioners except through due process of law and the finding of the court below is not sustainable. On the other hand the learned counsel for the Corporation supported the order of the court below and urged that there is no ground for interference.
3. The question for consideration is whether the Corporation was justified in evicting the petitioners from their respective stalls during the pendency of the applications for interlocutory injunction filed by them. Admittedly the applications were heard together on 24-1-2002 and the applications were posted for orders on 1-2-2002. But the petitioners were evicted from the stalls with the help of the police on 26-1-2002, i.e. before the disposal of the applications for temporary injunction.
4. The learned counsel for the Corporation contended that the Corporation was fully justified in evicting the petitioners since at the time of the eviction there was no order of injunction restraining the Corporation from evicting the petitioners from the stalls. On the other hand the learned counsel for the petitioners contended that the counsel for the Corporation had given an undertaking before the lower court and the undertaking will have as much effect as an interim injunction. If the counsel for the Corporation had given an undertaking as alleged, the Corporation was not justified in evicting the petitioners without hono
