@JUDGMENTTAG-ORDER
Budihal R.B., J.@mdash1. Heard the arguments of the learned counsel appearing for the petitioner-defendant and also the learned counsel appearing for the respondent-plaintiff.
2. Learned counsel appearing for the petitioner herein made the submission that plaintiff filed the suit before the trial Court seeking relief of declaration that ''B'' and ''C'' schedule properties are cart road and the plaintiff is having every right to make use of the same to reach her house as access and the plaintiff has also sought for mandatory injunction directing the defendant from removing the barbed fence, thatched pandal, firewood and other obstacles from ''B'' and ''C'' schedule properties and clear off the same. Learned counsel made the submission that during the pendency of the said suit, plaintiff has also filed an application under Order 39 Rule 1 and 2 seeking interim mandatory injunction to direct the defendant to remove the obstacles in respect of ''B'' and ''C'' schedule property till disposal of the suit.
3. Counsel made the submission that detailed objections were filed to the said application by the defendant in the suit. After considering the entire merits of the case, ultimately the trial Court dismissed the application filed by the plaintiff. He submitted that plaintiff preferred Miscellaneous Appeal against the dismissal of the injunction application and the appeal Court allowed the Miscellaneous Appeal and granted interim mandatory injunction as against the writ petitioner-defendant. Hence, learned counsel made the submission the judgment passed by the Appeal Court allowing the appeal and giving such relief itself is illegal and it is not sustainable in law. He also made the submission, when in the main suit itself such a relief has been sought by the plaintiff, it is only after the conclusion of the trial and recording the evidence in the suit, Court can comes to a conclusion whether such relief could be granted or not. It is also his submission looking to the order passed by the appeal Court in Miscellaneous Appeal granting such interim mandatory injunction itself amounts to virtually decreeing the main suit itself and such type of relief cannot be granted by the Court. Hence, he made the submission that the order passed by the appeal Court is not sustainable in law and the same is to be set aside by dismissing the application.
4. In respect to his contention, learned counsel for the petitioner relied upon the decision in the case of Nagaraj v. Krishna reported in ILR 1996 KAR 753, another decision of the Hon''ble Supreme Court in the case of State of U.P. and Others v. Visheshwar reported in 1995 Supp (3) SCC 590 and in the case of Metro Martins and another v. Bonus Watch Co. Pvt. Ltd. And others reported in , AIR 2005 SC 1444 (1). Hence, counsel submitted to allow the writ petition in view of legal position laid down by the judgment of this Court and as well as the judgments of the Hon''ble Apex Court.
5. Per contra, learned counsel appearing for the respondent-plaintiff during the course of his arguments made the submission that the plaintiff purchased the suit schedule property from the defendant and his mother Shivalingamma through a registered sale deed and in the sale deed itself it is specifically mentioned that on the southern side of the property purchased by the plaintiff there is 10 feet road and thereafter there is a property of the defendant. Hence, the Counsel made the submission that the document itself clearly goes to show that there is 10 feet road on the southern side of the property of the plaintiff. When that being the true facts of the case, defendant put obstacle to use the said road and prevented the plaintiff to make use of the road to go to her property.
6. Learned Counsel for the respondent also made submission that in respect of the road by contending that, there is no way to the plaintiff to go to her property. With regard to the contentions on the other side that the interim mandatory injunction cannot be granted at the interim stage of the suit and granted only after the conclusion of the trial is concerned.
7. Learned Counsel for the respondent plaintiff relied upon the decisions of the Hon''ble Supreme Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden and others reported in , AIR 1990 SC 867 (1) and the Division Bench of the Calcutta High Court in the case of Indian Cable Company Limited v. Smt. Sumitra Chakraborty reported in , AIR 1985 Calcutta 248. He submits that there is no bar for the grant of interim mandatory injunction in a suit and that the Court after perusing the factual aspect of the matter and to do justice to the parties can also grant such interim mandatory injunction as held by the trial Court wherein, reference is also made to the various judgments of the English Courts in the said judgment. Hence, he submitted that the first Appellate Court re-appreciated carefully all the materials produced in the case and also the original sale deed in favour of the plaintiff wherein, also the existence of the road is mentioned to the southern side of the property of the plaintiff and photograph produced in the case also goes to show that the obstructions put by the defendant on the said road. Hence, he made the submission that no illegal activities have been committed by the appellant or no perversity or capricious view is taken by the Appellate Court. Hence, learned Counsel submits that there is no ground to interfere in this writ petition and the same may be rejected.
8. I have perused the grounds urged in the writ petition, pleadings of the parties, copies of which are produced along with sketch, plaint, written statement, application which was filed before the trial Court seeking interim mandatory injunction and also the copies attached to the said application so also I have perused the order passed by the trial Court rejecting the injunction application and the judgment passed by the Appellate Court reversing the order of the trial Court by allowing the appeal and granting interim mandatory injunction and directing the defendant to remove the obstacle. I have also perused the decisions and principles enunciated in the decisions which are relied upon by both the sides.
9. The plaintiff filed the suit seeking declaration and also consequential relief of mandatory injunction in respect of ''B'' and ''C'' properties which are cart road and the allegation that the defendant put the obstacle on ''B'' and ''C'' schedule properties. It is no doubt true that as per the case of the plaintiff the properties is said to have been purchased under the registered sale deed from the defendant and the mother of the defendant, wherein on the southern side of the property of the plaintiff it is shown that there is 10 feet road. It is factual aspect which cannot be denied by the defendant also because he is also the party to the sale deed. But with regard to the other allegations made in the plaint, that the defendant put obstacle to ''B'' and ''C'' schedule properties and thereby, prevented the plaintiff to approach the properties is concerned. About these allegations, the defendant has denied by filing written statement. When that is so, it is for the plaintiff to establish the case about which the allegations are made, i.e., defendant put the obstacle on the said road and thereby, prevented the plaintiff to approach her property. Though it is contended by the learned Counsel for the respondent/plaintiff that interim mandatory injunction can be granted by the Court of law and though he relied upon the decisions of the Hon''ble Apex Court and the Division Bench of the Calcutta High Court, it has to be noted that in the case on hand looking to the prayer made in the plaint it is a declaratory decree in respect of ''B'' and ''C'' properties, so also the mandatory injunction in respect of ''B'' and ''C'' properties. This aspect is to be ascertained only during the course of the trial after recording the evidence on both the sides. The trial Court while rejecting the application filed for injunction has clearly observed in its order at para No. 10 that "No doubt, the sale deed describes the existence of 10 feet Cart road left by the vendors in the property of the vendors of plaintiff But, whether the defendant blocked the said Cart Road and thereby plaintiff could not access to the main road and the said Cart Road has left for the use of plaintiff and others, could be decided only on the merits". Observing these aspects of the matter, it is the trial Court which ultimately rejected the said application, First Appellate Court taking into consideration, the recitals made in the sale deed and holding that there is an existence of the 10 feet road in the schedule property and the other documents issued by the Panchayat Authorities held that interim mandatory injunction can be granted and allowed the appeal accordingly.
10. As I have already observed about the existence of 10 feet road is concerned, the defendant cannot dispute the said aspect as he is also a party to the said sale deed but issues which are raised is to be tried in the trial Court, regarding the allegation of blocking 13'' and ''C'' road by putting obstacle by the defendant which is denied by the defendant in his written statement. Therefore, matter certainly requires trial on these aspects and then only the Court can come to the conclusion about the reliefs sought in the plaint as to whether the plaintiff is entitled or not?
11. As it is held by the Hon''ble Apex Court, as well as this Court when the interim mandatory injunction was granted by the Courts, they are virtually amounting to decreeing the suit. Such type of injunction orders cannot be granted by the Courts. In the decision of the Hon''ble Supreme Court in the case of State of U.P. and others And Visheshwar reported in 1995 Supple (3) SCC 590, which is the subsequent decision of the Hon''ble Supreme Court, at para No. 3 of the said decision, their Lordships have observed as under:
"3. The main question for decision in the writ petition before the High Court is the status of the writ petitioner on the basis of his claim to the post of Forest Guard, which is yet to be adjudicated. By the interim order the High Court has actually granted the final relief itself without an adjudication on the point in controversy on which the grant of that relief depends. In these circumstances, granting of the final relief in the form of interim relief was wholly unwarranted. The impugned order dated 1-11-1993 has therefore to be set aside. The question of grant of relief claimed in the writ petition would be considered on its merits by the High Court and that relief to which the writ petitioner is found to be entitled may be granted at the time of decision of the writ petition. No such interim order of the kind which has been made is called for."
12. Therefore looking to the principle enunciated in the said decision and in the subsequent decision also, it is made clear that if the grant of interim order are virtually amounting to deciding the main suit itself and at that stage and such type of interim order cannot be granted. This legal aspect has been completely over looked by the Appellate Court and only on the premise that in the sale deed, there is a 10 feet road, the first Appellate Court proceeded to pass interim mandatory order. Therefore, the judgment passed by the Appellate Court in the miscellaneous appeal is illegal and it is not sustainable in law. Accordingly, writ petition is allowed and the impugned order passed by the Appellate Court in Misc. Appeal No. 4/2015 is hereby set aside.
However, in view of the nature of the relief sought and the contentions taken by the parties in the said suit, the concerned Court is hereby directed to take up the matter on priority basis and dispose of the main suit itself at the earliest not later than four months from the date of the receipt of the copy of this order.
Registry is directed to send the copy of this order to the concerned trial Court immediately.
