Dilip Kumar Sutaria and Others vs M. Karthik and Others

M. Karpagavinayagam, J.—The applicants/plaintiffs have filed these applications viz., O.A. Nos. 755 and 756 of 1999, seeking for an

interim injunction restraining the respondents/defendants from putting up any construction or obstruction in the common passage running from the

applicants'' house to T.T.K. Road and for issue of interim mandatory injunction to remove the unauthorised construction of a recently erected wall

in front of the gate belonging to the applicants/plaintiffs, pending disposal of the suit filed by them requesting for declaration, mandatory injunction

and permanent injunction.

The case of the applicants is as follows :--

A) The applicants purchased a vacant land bearing door No. 265-A. T.T.K, Road, Chennai from one P. Madhavan on 1-4-1981 measuring an

extent ofl ground 1226sq.ft., out of the total extent of 3 grounds 2265 sq.ft. Through the said Sale Deed, the said Madhavan gave the right of

access to the property from T.T. K, Road with a width of 11 feet and to a length of 100 feet.

B) After construction of house in the said land, as per the sanctioned Plan, the applicants have been using the common passage since then. The

said right of common passage was mentioned even in the subsequent Rectification Deeds dated 7-5-1981 and 24-9-1981. executed by said

Madhavan.

C) On 12-10-1983, the balance portion of land of 2 grounds 1039 sq.ft. was sold by the said Madhavan to one Saraswathi and Jagadeesan, who

in turn, on 14-7-1993, sold the same to the respondents/defendants. After the purchase of the said land, the respondents started constructing of

multi-sloreyed building without sanction from the Chennai Metropolilan Development Authority (CMDA) and Corporation of Chennai, causing

inconvenience to the applicants even in regard to the usage of the common passage mentioned above. Therefore, the applicants filed a writ petition

before this Court in W.P. No. 11290/97 for direction for injunction against the respondents herein.

D) Though both the CMDA and the respondents had filed a counter, admitting the contravention of the Rules, the said writ petitionwas ultimately

disposed of. as itwas brought to the notice of this Court that there was a right for the respondents to apply to the Authorities requesting for

regularisa-tion. At this stage, all of a sudden, on 28-11-99, the respondents, by way of preventing the using of common passage to go to the

T.T.K. Road from the applicants'' house, started putting up a wall in front of the gate of the applicants'' house.

E) Despite the objection raised by the applicants, the respondents proceeded with the said construction of wall in front of the gate of the

applicants'' house and thus, prevented the applicants from having access to the common passage to go to the T.T.K. Road. The applicants also

gave a Police complaint, but there was no response. Hence, this present suit seeking for declaration that the applicants/plaintiffs are entitled to have

a free access or right of way to the common passage, mandatory injunction directing the defendants to remove the obstruction and for other

consequential reliefs. Pending suit, they seek interim reliefs for exercising their right of using the common passage as they have been using the same

from 1-4-1981 onwards and interim mandatory injunction for removal of the obstruction put up by the respondents in the common passage.

The case of the respondents is this :--

A) ""The sale deed executed by the said Madhavan in favour of the applicants on 1-4-1981 or the sale deed dated 12-10-1983 in favour of the

said Saraswathi and Jagadeesan, the vendors of the respondents, did not give any right of access to common passage to the applicants. Moreover,

the Sale Deed executed by the said Saraswathi and Jagadeesan in favour of the respondents/ defendants would clearly men-tion that the right of

way in the common passage of width of 11 feet and to a length of 96 feet is given to the respondents only. Even assuming that there is some right

for the applicants to use the common passage, the same was given up long back by the applicants, as it is evident from the Sale Deed executed by

the said Saraswathi and Jagadeesan in favour of the respondents.

B) The common passage, mentioned in the schedule of the plaint, is exclusively used by the respondents. The wall was not constructed recently. It

is already there. Therefore, the applicants would not be entitled to the interim relief of injunction and for mandatory injunction for removal of the

wall.

Mr. A. K. Mylsamy, learned counsel appearing for the applicants and Mr. V. Ramana Reddy, learned counsel appearing for the respondents

have been heard at length.

Having heard the counsel for both sides, in detail, and having gone through the plaint, affidavits, counter affidavits and the documents filed by

both the parties, 1 am of the view that the applicants would be entitled to the interim reliefs sought for in these applications under the following

circumstances.

It is true, as pointed out by the learned counsel for the respondents, that this Court would not normally grant interim mandatory injunction while

one of the main reliefs sought for in the plaint itself is the very same relief. The proposition of law, relating to this legal situation, is well settled as

pointed out by the Supreme Court in the decision rendered in Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, . The relevant

observation is as follows at page 873 of AIR :--

(1) The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested

status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that

have been illegally done or the restoration of that which was wrongfully taken from the party complaining it. But since the granting of such an

injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against who it

was granted or alternatively not grating of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm,

Courts have evolved certain guidelines. Generally stated these guidelines are,

(i) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally for a prohibitory injunction.

(ii) it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(iii) The balance of convenience is in favour of the one seeking such relief.

The whole reading of the judgment referred to above and the various decisions of this Court as well as other High Courts would give out the

following principles in the mailer of granting interim injunction in a mandatory form : --

(1) if a Court is called upon to grant any relief on any interlocutory application, which when granted would mean granting substantially the relief

claimed in the suit, the Court will be very slow and circumspect in the mailer of granting any such prayer. Though exercise of such a discretion

should be limited to rare and exceptional eases, still at the same time no Court should think that in law there is any absolute bar to the Court

granting such a relief. In deserving cases, the Court should not hesitate to come in aid. of a litigant and uphold the cause of justice by granting such

a relief.

(2) it cannot be said that no mandatory injunction can be grained by the Court on an interlocutory application in any circumstance. A mandatory

injunction can be granted on an interlocutory application after notice to the defendant and after hearing the parties.

(3) Injunctions are a form of equitable relief and they have to be adjusted of moulded in aid of equity and justice to the facts and circumstances of

each particular case. No Court, therefore, ought to lay down absolute proposition when such are not necessary and forge fetters for itself.

(4) The subject of temporary injunction is mainly covered by Order 39, Rules I and 2 CPC. In cases not covered by those provisions, an

appropriate temporary injunction can be granted also in exercise of inherent power of Civil Court under Secfion 161, C.P.C. After all Order 39,

Rules 1 and 2 are not exhaustive of the circumstances under which inierim injunction can be granted. The language employed in these two rules is

clearly wide enough to include an order in the form of a mandatory injunction.

(5) it is true that when there is a conies! or controversy between the parties about the status, the Court normally refrains from granting the final

relief at an interlocutory stage, but Court is certainly entitled to scan the so-called defence about the denial of status raised by the other side,

otherwise Court would be encouraging the dishonest defence and allowing the party to live at the mercy of the opponent nil his rights are finalised

at the end of the trial. The Court in such a situation cannoi si! and watch the proceedings as a silent spectator and show its helplessness.

If the facts of the present case are viewed in ihe light of the principles laid down by the Apex Court and other Courts, we can easily find that ihe

plaintiff/applicant has got a strong case for trial which..is of a higher standard for a prima facie case and it is highly necessary to prevent irreparable

or serious injury which normally cannot be compensated in terms of money and that the balance of convenience is in favour of the plaintiff/applicant

seeking such relief. On the other hand, if the applicants are not granted the interim reliefs sought for in these applications, then certainly they would

suffer irreparable loss and serious injury, which is quite evident from the following circumstances.

The applicants purchased the land on 1-4-1981, through the Sale Deed, document No. 1 of the plaint, from the said Madhavan. This document

would show that 11 feet width and 100 feet length shall be the common passage to the purchasers, the applicants and the vendor, Madhavan, and

the purchasers shall have [he access and right of passage through the aforesaid 11 feet road.

The second document dated 17-4-1986, which is a patta issued in favour of the applicants by Tahsildar, would also show that there is a road

wilh 11 feet in width and 100 feet in length, which is a common passage belonging to the said Madhavan and the applicants. Apart from that, there

are two Deeds of Rectification dated 7-5-1981 and 24-9-1981, document Nos. 3 and 4, executed by the said Madhavan, which would also

show that there is a passage of 11 feet width and 96 feet length, which would be for the common use by the vendor, Madhavan and the

purchasers, the applicants.

Apart from that, Document No. 7 dated 12-10-1983, the Sale Deed executed by the said Madhavan in favour of Sarswathi and Jagadeesan

in respect of the balance portion of land, would also show that the applicants and the purchasers viz., Saraswathi and Jagadeesan would be entitled

to use the said common passage. Therefore, it cannot be said that the right of common passage, mentioned in the schedule, had not been given to

the applicants by the vendors of the defendants/respondents.

Under those circumstances, the contention of giving of the right of the common passage by the immediate vendors, viz. Saraswathi and

Jagadeesan to the respondents and taking of the right of the applicants even without their consent would not be a tenable one. In the Sale Deed

dated 14-7-1993, the applicants were not the parties nor they are the witnesses. Moreover, there is no other material to indicate that the said right

of use of common passage had been given up by the applicants at any point of time.

On the other hand, when there was a disturbance being caused by the respondents, by putting up multistoreyed building, without a sanctioned

Plan, and putting obstruction to the common passage to the applicants for using the same, the applicants rushed to this Court and filed a Writ

Petition in W.P. No. 11290/97 in July 1997 itself, mentioning all these things.

Furthermore, in the counter affidavit filed by the first respondent on 26-8-1997 in the said writ petition, the respondents never whispered aboul

the alleged giving up of the above right by the applicants. On the other hand, it is categorically stated in the counter that the right of way is available

to the applicants and there has been no construction put up on the narrow street, namely, the common passage. The relevant statement by the first

respondent herein in the counter affidavit of the said writ petition is as follows:

Even assuming the petitioners have a right of way as claimed by them along a narrow strip of land 11 feet wide leading from T.T.K. Salai on the

East to their property on the West, an easement right under a grant, but not admitting the same. 1 am to state that this right of wav is available to

the petitioners, as no construction has been put up on this narrow strip. At the eastern end, there is no wall and on the western end, there is a gate

sufficiently wide enough to enjoy the easement right, a wall having been put on the northern side abutting on to the common passage or a width of

30 feet leading to the farm house further west and to the petitioners'' property as well, for security reasons alone.

Therefore, there is no merit in the contention of the counsel for the respondents that there is no common passage at all and that even assuming that

there is a common passage, the right of use was given up by the applicants.

On the other hand, it is prima facie established by the applicants, through the documents, that the right of common passage had been conveyed

by the said Madhavan as early as 1-4-1981, in pursuance of which, the applicants have collected the revenue documents and since then, the

applicants have been using the common passage, mentioned in the schedule, to reach the T.T.K. Road, through their gate put up at the entrance.

It is also noticed that the applicants filed another application in Application No. 4331 of 1999 to appoint an Advocate Commissioner to go

and inspect the unlawful construction put up by the respondents in front of the gate of the applicants'' house, preventing their use of the common

passage and to submit a report. This Court by the Order dated 13-12-1999, appointed an Advocate Commissioner to inspect the suit premises

and submit a report with regard to the existence of the common passage, gate and the new wall put up by the respondents on 28-11-1999 and

other obstacles, if any. Accordingly, the Advocate Commissioner inspected the suit premises on 26-12-1999 in the presence of the counsel and

parties and submitted a report on 7-1-2000 before this Court.

The Report submitted by the Advocate Commissioner along with the sketch, prepared in the presence of the parties, would clearly show that

there is an old iron gate, which was closed by constructing a wall, thereby closing the access through the gale of the applicants and preventing the

applicants from using the common passage which leads to the T.T.K. Road. The relevant observation is this : --

6) At the time of inspection, I found an old iron gate between D and E marked Gale ""G1"" in the plan. The said Gate ""G1"" has been closed by

constructing a compound wall between D and E, thus closing the access through the Gate G1. The counsel for plaintiffs told me that the defendants

put up compound wall between D and E on 29-11-1999 whereas the counsel for the defendants told me the compound wall was put up more than

one year back.

A reading of the above paragraph in the report would show that the grievance of the applicants is that they have been prevented from using the

common passage by the respondents by putting a compound wall and the obstacle put up by the respondents is true and that according to the

counsel for plaintiffs, the defendants put up the compound wall on 29-11-1999 in front of the gate, whereas according to the counsel for

defendants, the compound wall was put up more than one year back.

In this context, it would be appropriate to refer to the admission made by the first defendant/ respondent in para 9 of the counter affidavit filed

in W.P. No. 11290 of 1997 as stated above. It is seen from the records thai the said Writ Petition was disposed of on 10-3-1999. It is the case of

the respondents, through para 9 of the said counter, that till 10-3-1999, the right of way or common passage was available to the applicants as no

construction was put up by the respondents.

In view of the above situation, the contention of the learned counsel for the respondents that the wall, constructed in front of the gale, is not a

recent one, has to be rejected, as he has not given the facts correctly before this Court.

The immediate cause of action for this suit is the construction of wall in front of gale on 29-11-1999. As indicated earlier, till 10-3-1999, even

according to the respondents, there was no construction of the wall in front of the gale. Therefore, it goes without saying lhat the wall has been

con-siructcd by way of obstruction to the common passage being used by the applicants only recently,

Though the counsel for [he respondents has filed an objection to the Advocate Commissioner''s report, I do not find any merit in the said

objection cxeepl to state that there is one more gale in the applicants property to have access to the T.T.K. Road. In this context, it is relevant to

note that in the Advocate Commissioner''s report, it is specifically stated that according 10 the plaintiffs'' counsel, the access passage on the north

of the suit property leading to Mowhrays Road is a private road, whereas the counsel for the defendants told him lhat it is a Corporation Road.

But, it is noticed that the said right of access to the common passage has been referred to in the Document dated 1-4-1981 itself, which clearly

shows that the access passage is a private road. Moreover, now, we arc not on the question of easement of necessity, but on the question as to

whether the applicants are being prevented from using the common passage or from exercising their right of way conferred on them through the

various documents as detailed above. Therefore, ihu authorities cited by counsel for respondents such as ILR 33 Mad 327 (Esa Abbas Sail v.

Jacob Haroon Sail AIR 1937 179 (Nagpur) and Morla Gangulu and Another Vs. Thata Jagannatham and Others, which deal with easemeni of

necessity would be of no use.

It is specifically stated in the affidavit filed by the applicants that the balance of convenience lies in their favour for granting interim relief''s, since

they have been using the said common passage uninterruptedly ever since they purchased the said property from Madhavan i.e. 1-4-1981 and in

the I event of the respondents ultimately establish lhat they have a right to claim exclusive ownership in respect of the common passage, they would

undertake to pay all necessary charges for the erection of the wall.

In view of the above circumstances, I am constrained to hold that the applicants/plaintiffs have made out a case for interim injunction and

mandatory injunction pending disposal of the above suit. Therefore, interim injunction is granted restraining the respondents and their men from

putting up any construction or obstruction in the common passage running from the applicants'' house to T.T.K, Road measuring an extent of 11

feet in width and 100 feet in length and also the respondents are hereby directed to remove the wall, constructed in front of the gate of the

applicants'' house and to remove all the other obstacles so as to enable the applicants to use the said common passage to reach the T.T.K. Road,

pending disposal of the suit. Original Application Nos. 755 and 756 of 1999 arc allowed.