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2025 Supreme(Online)(KER) 14245
HIGH COURT OF KERALA
BASANT BALAJI, J
MATHAI C.C – Appellant
Versus
JAMES C.C – Respondent
CRP 141/2023
DINESH R.SHENOY, P.ROHIT PREMANANDAN SHENOY, SILESH S. PRABHU, MANOJ.R HELAN PAULOSE, Vinod Bhat S, ANAGHA LAKSHMY RAMAN(K/000767/2015), GREESHMA CHANDRIKA.R(K/807/2020)
The construction of steps for easier access does not violate an injunction against waste or obstruction if it does not impede free passage.
Headnote:(A) Civil Procedure Code, 1908 - Order 39 Rule 2-A - Permanent prohibitory injunction - The plaintiff sought an injunction against the defendants for obstructing access to property through a pathway as per a registered will. The Munsiff Court initially granted an injunction, but the lower appellate court set it aside, ruling that the construction of steps did not obstruct access. (Paras 2, 4, 10, 11)
(B) Injunction - The court emphasized that the construction of steps for easier access does not constitute waste or obstruction, thus not violating the injunction order. (Paras 10, 11)
Facts of the case:
The plaintiff filed a suit for an injunction against the defendants for constructing steps that obstructed a pathway, which was part of the property inherited through a will. The Munsiff Court granted an injunction, but the lower appellate court found no obstruction.
Findings of Court:
The lower appellate court concluded that the construction of steps did not interfere with the plaintiff's access to the property and thus set aside the Munsiff Court's order.
Issues: The main issue was whether the construction of steps constituted a violation of the injunction order.
Ratio Decidendi: The court held that the construction of steps did not obstruct the plaintiff's access and therefore did not violate the injunction order.
Result: C.R.P. dismissed.
ORDER
(Dated this the 13th day of March 2025)
The plaintiff in O.S.No.270 of 2019 on the files of the Munsiff Court, Perumbavoor, is the revision petitioner. This revision is filed against the judgment in C.M.A. No.4 of 2021, whereby the order in I.A.No. 2154 of 2019 was set aside.
2. The suit was filed for a decree for a permanent prohibitory injunction restraining the defendants, their agents or men from committing any waste in plaint A schedule item No.3 property through encroachment, trespass, amalgamation or causing any damage or obstruction to the free movement of the plaintiff or his agents through the pathway. Plaint A schedule property is obtained by the revision petitioner as per registered will executed by his father. 5 links way was provided in the will for the enjoyment of the property of the plaintiff. Along with the suit, an application for interim prohibitory injunction was filed as I.A. No.1251 of 2019 and the Munsiff Court granted an ex-parte order of injunction on 24.6.2019, restraining commission of waste or causing obstruction to the plaintiffs free passage through plaint A schedule item 3 way till 9.7.2019. A commission was taken out and the Commissioner reported the existence of the pathway.
3. The case of the revision petitioner is that the respondents trespassed into plant item No.3 pathway and constructed several steps with concrete blocks. Thereby, there is an obstruction to the use of wheel barrels or other wheeled vehicles for taking water to the plaint schedule item No.3 pathway. I.A. No. 1928 of 2019 was filed to depute an Advocate Commissioner to verify and report the acts of violation committed by the respondents obstructing the pathway with cement blocks preventing the free access to plaint A schedule item No.2. The Advocate Commissioner filed a second report with a rough sketch reporting that new steps have been constructed in the pathway. The plaintiff, therefore, filed I.A.No.2154 of 2019 to restore the 5 links pathway to the earlier lie and status as reported in the 1st commissioner’s report.
4. Meanwhile, I.A.No.1251 of 2019 was heard, and the interim injunction was made absolute. The learned Munsiff considered I.A.No.2154 of 2019 and allowed the same directing restoration of status quo ante as regards the 5 links pathway. Against the order in I.A.No.2154 of 2019, the respondents filed C.M.A. No.4 of 2021. The petitioner entered appearance, and after hearing both the parties, the learned Sub Judge allowed the C.M.A. and had set aside the order of the learned Munsiff in I.A.No.2154 of 2019, holding that the changes brought about in plaint item No.3 will not reduce the utility of A schedule item No.3 and will not amount to commission of waste in the property.
5. The counsel for the revision petitioner/ plaintiff, Sri.Dinesh R. Shenoy argued that when an injunction order is passed in the suit restraining the defendant from committing any waste or causing obstruction to the plaintiff’s free passage through plaint A schedule item No.3, the respondents deliberately obstructed the same by constructing steps with hollow bricks, thereby violating the order of injunction. An application for prosecuting the respondents under Order 39 Rule 2-A CPC has also been filed and is pending. When the Commissioner visited the property for the 1st time on 9.7.2019, he did not see any steps in plant A schedule item No.3 property. Thereafter, the construction was made, and the 2nd commissioner visited the property on 23.10.2019.
6. The Commissioner reported that at the starting point of A schedule item No.3 property, 4 steps were constructed, which shows that the respondents have violated the order of injunction. He further submitted that he used to take trolleys through plaint A schedule item No.3 property for bringing water into his property. Because of the present construction of the steps, he is unable to take water to his property. The Commissioner’s reports make it abundantly clear that there has been a violatio
