JUDGMENT

Challenge in this Original Petition, filed under Article 227 of the Constitution of India, is to the order dated 05.03.2022 in I.A.No.3/2022 in A.S.No.10/2022 passed by the Additional District Court – IV, Kottayam.

2. Petitioners are respondents 2 and 3 in the appeal. The appellants are respondents 1 to 4. Respondent No.1 in the appeal is respondent No.5 in the original petition.

3. Petitioner No.2 instituted O.S.No.218/2004 before the Munsiff’s Court, Ettumanoor against respondents 2 to 4 for a permanent prohibitory injunction regarding the plaint ‘B’ schedule property which is described as a way.

4. Respondents 1 to 4 instituted O.S.No.90/2015 against the petitioners and respondent No.5 for declaration and permanent prohibitory injunction regarding the subject matter in O.S.No.218/2004.

5. The Trial Court jointly tried both the suits and decreed O.S.No.218/2014 in favour of petitioner No.2 declaring that ‘B’ schedule pathway is a public road. The Court also granted a consequential injunction. The Trial Court dismissed O.S.No.90/2015.

6. There were steps on different levels on the plaint ‘B’ chedule way. After the decree, the lie and nature of ‘B’ schedule way was partially changed by demolishing the steps thereon.

7. Respondents 1 to 4 challenged the judgment and decree passed by the Trial Court by filing A.S.Nos.9 and 10 of 2022 before the District Court, Kottayam. The appeals were made over to the Additional District Court -IV, Kottayam.

8. Respondents 1 to 4 filed I.A.Nos.1 and 3 of

2022 in A.S.No.10/2022 alleging that the petitioners and respondent No.5 demolished the steps constructed on the ‘B’ schedule way. They prayed for a prohibitory injunction restraining the petitioners and others from committing further waste in ‘B’ schedule property. They also prayed for an interim mandatory injunction directing the petitioners and others to restore ‘B’ Schedule property into its original position. The District Court jointly considered the two interlocutory applications and passed Ext.P6 common order dated 05.03.2022. In Ext.P6, the District Court restrained the petitioners and others by way of a prohibitory injunction from destroying the cross situated at the northern end portion of 'B' schedule way, destroying the remaining steps and terrace thereon and altering its nature and lie converting the same as a cartable road.

9. As per order in I.A.No.3/2022, respondents 1 to

4 were permitted to restore 'B' schedule property to its original position as noted in Ext.B17, Ext.A10 and Ext.C1 report under the supervision of an Advocate Commissioner.

10. The order in I.A.No.3/2022 permitting the respondents to restore the plaint schedule property to its original position is under challenge in this Original Petition.

11. Heard Shri. Liji J. Vadakedom, the learned counsel appearing for the petitioners and Shri. Raju Joseph, the learned Senior Counsel appearing for the respondents.

12. The learned counsel for the petitioners contended that the District Court has not considered the objections raised by them on the touchstone of the principles declared in Dorab Cawasji Warden v. Coomi Sorab Warden and others [1990 KHC 756] for granting interim mandatory injunction.

13. Per contra, the learned Senior Counsel contended that the District Court has exhaustively considered the averments placed by both sides in arriving at a finding that the plaint ‘B’ schedule property is to be restored to its original position so as to maintain the subject matter in tact during the pendency of the appeal.

14. The learned counsel for the petitioners contended that the District Court has not considered the comparative hardship that would be caused to the petitioners by denial of right of enjoyment of ‘B’ schedule way while granting the relief of interim mandatory injunction. The learned counsel further contended that the District Court lost sight of the settled principles that govern granting of interim mandatory injunction. In Dorab Cawasji Warden v. Coomi Sorab Warden