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2023 Supreme(Online)(KER) 12229
HIGH COURT OF KERALA
A. BADHARUDEEN, J
JOSEPH JOHN, – Appellant
Versus
P.A.JOHNY KUTTY @ YOHANNAN, – Respondent
RSA 530 2021
P.VISWANATHAN (SR.), SHIBU JOSEPH, AJITH VISWANATHAN, SANU S MALAKEEL, SAYED MANSOOR BAFAKHY THANGAL, P.B.KRISHNAN, P.B.SUBRAMANYAN, SABU GEORGE, MANU VYASAN PETER, S.V.BALAKRISHNA IYER (SENIOR COUNSEL)
A mandatory injunction can be granted even without a specific plea if justified by circumstances and procedural discretion exists under civil law to mold relief for justice.
Headnote:
Injunction - Right of Way - Code of Civil Procedure, Order 42 Rule 1; Section 100 - The court analyzed the issue of public road width and the nature of property rights in determining the extent of a permitted right of way, ultimately affirming the lower court's findings while emphasizing the necessity for adequate pleadings in injunction relief.
Fact of the Case:
The plaintiff sought a permanent prohibitory injunction against the defendants to prevent them from obstructing a road claimed to be public, with disputes arising regarding the road's width and nature based on conflicting evidence between the parties.
Issues: The court addressed whether the appellate court was justified in granting a mandatory injunction without a specific prayer for it, whether it correctly interpreted the road as public amidst conflicting evidence, and the implications of deemed property surrender for public use.
Ratio Decidendi: The courts have the discretion to mold relief based on the current condition of a disputed property and the powers evident in civil procedures support the invocation of general relief even without specific pleadings if justice demands it.
Final Decision: The appeal was dismissed, upholding the findings of the appellate court.
J U D G M E N T
The defendants in O.S.No.623/2015 on the files of the Principal Munsiff Court, Alappuzha, who are aggrieved by the decree and judgment in the above case dated 31.10.2019, confirmed by the Additional District Court-II, Alappuzha in A.S.No.74/2019 along with cross objection, vide decree and judgment dated 27.01.2021, have filed this Second Appeal under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (for short `C.P.C' hereafter for convenience). The respondent in this Second Appeal is the sole plaintiff in the Suit.
2. I shall refer the parties in this appeal with reference to their status before the trial court, as `plaintiff’ and `defendants’
hereafter for easy reference.
3. Heard the learned counsel for the appellants/defendants and the sole respondent/plaintiff, on admission.
4. Perused the lower court records and the judgments under challenge.
5. In this matter, the plaintiff filed Suit for permanent prohibitory injunction restraining the defendants and their men from closing or reducing the width of plaint C schedule road, which is available towards the plaint A schedule property owned by the plaintiff for vehicular traffic, when he apprehended obstruction of the same by the defendants. According to the plaintiff, plaint C schedule is a public road having 45 metre length and 12 feet width vested in Panchayat and, therefore, the defendants have no manner of right to obstruct the same.
6. Defendants 1 to 5 filed joint written statement and additional written statement admitting the existence of plaint C schedule road having a width of 6 feet being part of plaint B schedule property owned by the defendants. They specifically disputed the nature of the road as public road having a width of 12 feet.
7. Referring to the above pleadings, the trial court ventured the matter. PWs 1 to 7 were examined and Exts.A1 to A8 series were marked on the side of the plaintiff. DW1 to DW5 were examined and Exts.B1 to B7 were marked on the side of the defendants. Ext.C1 series were marked as court exhibits and Exts.X1 to X6 were also marked.
8. On appreciation of evidence, the trial court granted prohibitory injunction against obstruction of `C' schedule road, confining the same having a width of 2.75 metre, instead of 12 feet claimed by the plaintiff. The decree granted by the trial court runs as under:
“In the result, the suit is decreed with costs as follows:
Defendants, their men and agents are restrained by a decree of permanent prohibitory injunction from closing or reducing the width of the plaint C scheduled pathway ie. 2.75 metre as mentioned in Ext.C1 series from causing any obstruction to the right of road of the plaintiff through plaint C scheduled pathway for ingress and egress to plaint A scheduled property including vehicular traffic.
2. Plaintiff is also entitled to realise the costs of the suit from the defendants.”
9. In appeal filed by the defendants, the first appellate court modified the decree and granted relief in respect of `C'
schedule as under:
“1. I dismiss this appeal with cost of the respondent.
2. I allow the cross objection and modify the decree as follows:
The defendants or other persons under them are restrained by a decree of permanent prohibitory injunction from closing or reducing the width of plaint C scheduled road, which has a width of 3.95 meter at the starting point and 3.80 meter to a length of 40 meter and then 2.75 meter as reported by the Advocate Commissioner in Ext.C1 report, and from causing any obstruction to the right of road of the plaintiff through plaint C scheduled road for ingress and egress to the Plaint A scheduled property, including vehicular traffic.
3. The defendants are directed to remove the fence constructed in C scheduled property within 2 months from the date of this judgment, failing which, the plaintiff will be at liberty to remove the same through due process of law.”
10. According to the learned counsel for the defendants, substantial questions of law a
