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IN THE HIGH COURT OF KERALA AT ERNAKULAM
T.V. Anilkumar, J.
Anilkumar and Ors. – Petitioners
Versus
K.Rajendran – Respondent
OP(C).No.164 OF 2021
Decided On : 03-02-2021
Injunction - Restoration of Status Quo Ante - Specific Relief Act, 1963, Code of Civil Procedure, 1908 - Sections 38, 39, Order XXXIX Rules 1 and 2 - The court held that the power to restore the state of affairs to a position anterior to suit by issue of an interim mandatory injunction cannot be exercised in a suit for a decree of prohibitory injunction. The court is well within its powers to issue interim mandatory injunction restoring status quo ante to a date prior to suit provided such a relief is claimed in a suit brought for a decree of mandatory injunction and all necessary conditions are established by the applicant. The court also clarified that in a suit laid for prohibitory injunction, what cannot be granted as final relief in the suit cannot be granted as interim relief also.
Fact of the Case:
The case involved a dispute over the ownership and use of a pathway between two properties. The respondent filed a suit for permanent prohibitory injunction against the petitioners, alleging that they had obstructed his access to the pathway by constructing a wall. Both parties filed petitions for temporary mandatory injunctions to restore the status quo ante.
Finding of the Court:
The court found that the lower courts had erred in issuing interim mandatory injunctions to restore the status quo ante in a suit for prohibitory injunction. It held that such power can only be exercised in a suit brought for a decree of mandatory injunction and not in a suit for prohibitory injunction.
Issues: The main issue was whether the court has the power to issue temporary mandatory injunction directing the defendants to put the property in dispute back to its original position as it existed prior to the suit in a case brought for permanent prohibitory injunction.
Ratio Decidendi: The court clarified the distinction between suits for prohibitory and mandatory injunction, emphasizing that the power to restore the status quo ante through interim mandatory injunction can only be exercised in a suit brought for a decree of mandatory injunction. It also highlighted the different standards for establishing a prima facie case in proceedings for temporary prohibitory and mandatory injunctions.
Final Decision: The original petition succeeded, and the orders for interim mandatory injunctions issued by the lower courts were set aside. The judgment clarified that it would not stand in the way of the parties seeking to bring necessary amendments to their pleadings.
Key Points: - The court held that the power to restore the state of affairs to a position antecedent to the suit by interim mandatory injunction cannot be exercised in a suit for a decree of prohibitory injunction. (!) - Such relief can be granted only if claimed in a suit brought for a decree of mandatory injunction and all necessary conditions are established. (!) - In a suit for prohibitory injunction, what cannot be granted as final relief cannot be granted as interim relief, though the court may exercise inherent power to restore status quo ante to a date prior to the suit in certain circumstances if justified by the record. (!) (!) - The test for interim mandatory injunction differs from that for prohibitory injunction; mandatory injunction requires a stronger prima facie case and consideration of irreparable harm, balance of convenience, and overall discretion. (!) (!) - The lower courts’ orders directing restoration of status quo ante in a prohibitory suit were set aside; the petition succeeded. (!)
JUDGMENT :
The concurrent orders of interim mandatory injunction issued by two courts below in a suit for prohibitory injunction directing restoration of status quo ante as it existed prior to the date of institution of the suit, are assailed by defendants in this original petition filed under Article 227 of the Constitution of India.
2. The legal question that arises for consideration is whether court has power in a suit instituted for permanent prohibitory injunction to issue temporary mandatory injunction directing the defendants in the suit to put the property in dispute back to its original position as it existed anterior to the suit.
3. The petitioners/defendants are owners of plaint 'B' schedule item Nos.1 and 2 in the suit. The sole respondent/plaintiff owns plaint 'A' schedule 50 cents. The parties purchased respective portions of land from common owners. The plaint 'A' and 'B' schedule properties lie respectively on the eastern and western sides of plaint 'C' schedule pathway which measures a width of 3.7 meters.
4. The existence of 'C' schedule pathway is undisputed by parties. The 'C' schedule lies in north-south direction forming part of the pathway which starts from the public road on the south.
5. The respondent claims that after plaint 'A' schedule property was purchased in 1993, he put up eight feet wide gate on the western boundary of his property for access to his land from plaint 'C' schedule and acquired by long user, a right of easement by prescription. It is said that he recently widened the existing entrance of 'A' schedule to 15 feet and put up a new iron gate.
6. Allegation against the petitioners is that they put up 'D' schedule wall made of hollow bricks in 'C' schedule at a height of five feet covering the new gate and blocked the respondent's entry to and fro the plaint 'A' schedule. Consequentially, the respondent was forced to file the instant suit for permanent prohibitory injunction on 10.03.2020 for a decree restraining the petitioners from committing mischief to the newly installed iron gate and further interfering with his right to use plaint 'C' schedule pathway. He specifically contended that the unauthorised wall was put up on 02.03.2020, a week anterior to the date of suit.
7. The petitioners filed written statement as well as a counter claim admitting erection of 'D' schedule wall which, according to them, was quite necessary to protect their alleged exclusive right of user of plaint 'C' schedule acquired by grant as borne out from the title deeds taken in their names.
8. They also contended that respondent did not have any lawful right to use 'C' schedule pathway and at no point of time, any gate or entrance existed on the western side of plaint 'A' schedule. The entrance was created a few days prior to the date of institution of suit and 'D' schedule construction was put up in exercise of their lawful right.
9. In the trial court, a commission was taken out simultaneously with institution of the suit and the Commissioner noticed the age of 'D' schedule construction to be a week old. This is not a disputed fact between parties. It is quite relevant to note that the age of 'D' schedule wall alone was inspected and reported. The age of construction of the entrance was neither inspected nor sought to be reported. It is also a matter of fact that respondent owns substantial extent of land close to the southern side of plaint 'A' schedule and to the immediate east of the pathway which starts from the southern public road and joins plaint 'C' schedule. That looks to be one of the reasons as to why the respondent has not chosen to claim a right of easement by necessity.
10. The respondent filed a petition before the munsiff court for issue of temporary mandatory injunction directing the petitioners to remove 'D' schedule construction and restore 'C' schedule to its original position as it stood a week prior to the institution of the suit.
11. The petitioners also filed a similar petition for temporary
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