James P.J. vs Alice Joseph

P. Bhavadasan, J.—The petitioner before this Court challenges the order in C.M.A. No. 71/2013 which in turn confirmed the order in I.A. No. 7050/2012 in O.S. No. 651/2012 wherein it was held that the petitioner was guilty of violation of order of status quo and he was asked to remove the gate put up failing which he was directed to undergo imprisonment in a civil prison for 15 days.

The facts absolutely necessary for the purpose of disposal of this petition are as follows:

It will be extremely useful in this case to refer to the Commissioner''s reports which are seen produced and marked in the case as Exts.C1, C1(a), and C2 and C2(a). With reference to Commissioner''s report and plan, plot No. B1 is the plot owned by the plaintiff and A1 is the plot owned by the defendant in the suit. It is not in dispute that plot B2 and A2 are poramboke land comprised in survey No. 1436 and further north is shilpasala road running east west.

The plaintiff laid the suit for injunction with reference to plaint A schedule property which comprises of B2 and A2 plots shown in the Commissioner''s report produced in the case. Along with the suit, the petitioner had moved I.A. No. 4724/2012 for temporary injunction which was granted ex parte. The defendant entered appearance and filed her counter and the matter was heard.

After hearing the matter, the trial court found that the claim made by the plaintiffs regarding plaint A schedule property could not be readily accepted as there was considerable dispute regarding the exclusive possession and while vacating the injunction, passed an order as follows:

"In the result, the above petition is disposed of as follows.

(1). The ad-interim injunction granted by this court dated 03-08-2011 (sic) is hereby vacated.

(2). At the same both the parties are hereby directed to maintain status quo of plaint A schedule property as noted by the commissioner till the disposal of the suit".

Subsequently, it so happened that the plaintiffs in the suit put up a gate on the northern boundary of B2 plot which compelled the defendant in the suit to move I.A. No. 7050/2012 complaining of violation of the status quo order. Commissioner was again deputed and she filed Exts.C2 and C2(a) plan and report. The allegation of putting up of gate was found established and the trial court felt that there was gross violation of the order of status quo passed by the said court and accordingly ordered removal of the gate. Aggrieved by the said order, the plaintiffs moved the lower appellate court as per C.M.A. No. 71/2013. The lower appellate court found no reasons to disagree with the trial court and confirmed the order.

Sri.S. Vinod Bhat, learned counsel appearing for the petitioner contended that the order of status quo does not prevent the petitioner from putting up of a gate for the simple reason that by putting up of gate, petitioner was only trying to preserve property in question and to see that no damage is caused to the property. The courts below were not justified in coming to the conclusion that there was violation of the status quo order as alleged by the defendant in the suit. Gate was put up due to absolute necessity to protect the property of the plaintiffs and that cannot be treated as a construction in violation of the order of status quo and accordingly, it is contended that both the courts below were unjustified in holding that there was violation of the status quo order.

Learned counsel appearing for the contesting respondent contended that it is not the first time that the plaintiffs had been attempting to annex river poramboke to their property. In fact the respondent had moved local authority complaining about the act of the plaintiffs to annexe poramboke to their property. Attempt of the plaintiffs, according to the learned counsel for the respondent, is to see that the defendant does not get access to the Shilpasala road on the northern side and in order to defeat the rights of the defendant a gate has been put up in violation of the order of status quo. It is therefore contended that there is no ground to interfere with the order of the court below.

Plaint A schedule property is in dispute. That comprised of B2 and A2 plots shown in Commissioner''s report comprised in survey No. 1436 as noticed by the petitioner and admittedly it is a river poramboke land. As claimed before this Court, it is seen that both the plaintiffs and the defendant had applied for assignment of such land. It is also learnt that while the claim of the plaintiffs is rejected, the application filed by the defendant is pending consideration. Whatever that be, question is not whether the plaintiffs or the defendant is entitled to assignment but whether there is violation of the status quo order of the trial court passed in modification of the earlier order of temporary injunction granted against the defendant. Putting up of iron gate on the northern boundary of B2 parcel of land shown in the plans prepared by the Commissioner is not dispute. But the contention of the plaintiffs is that that does not constitute violation of the status quo order but only enables to preserve the property.

The act is not so innocuous as is pointed out by the learned counsel for the plaintiffs. There was a complaint that the plaintiffs were attempting to annexe poramboke land to their property in derogation of the right of the defendant to use the same parcel of land for gaining access to the Shilpasala road. It is significant to notice that the trial court which granted an order of injunction against the defendant felt it improper to extend the order and therefore vacated the same and the court also felt that both parties should not interfere with the property in dispute and therefore passed the order of status quo.

It is not in dispute that as on the date of passing of the order of status quo, the gate in question was not available and that was put up subsequently. It could not be characterised as an attempt on the part of the plaintiffs to preserve the property but only be treated as a conduct on the part of the plaintiffs to claim exclusive right over the river poramboke land. Anyhow, those are matters to be determined at a later stage. The right of the plaintiffs is yet to the determined by the trial court. However, it could not be said that there was no violation of the order of status quo going by the facts and circumstances of the case. Putting up of gate was certainly in violation of the order of status quo passed by the trial court.

The trial court was justified in coming to the conclusion that there has been violation of the status quo order and passing the impugned order which was confirmed in appeal. It could not be said that there is any illegality, impropriety or irregularity in the orders passed by the courts below. No grounds are made out to interfere with the orders of the courts below.

The petition is dismissed. However, the time granted by the court below for removal of the gate is extended by three weeks from the date of this order.