SHEFEENA Vs. JAMEELA

JUDGEMENT

(1.) The petitioner is the defendant in O.S.No.78 of 2020 on the files of the Additional Munsiff's Court, Irinjalakkuda. The suit is filed by the respondents claiming co-ownership and possession of plaint A schedule property and praying for a mandatory injunction directing the petitioner to restore the common wall between the residential building in plaint A and B schedule properties. The husband of the first respondent, who was having right, title and possession over 13 cents of land with buildings therein, sold an extent of 4.5 cents (B Schedule property) to his sister Amina in the year 1988. The first respondent purchased the property from Amina in the year 2019. The buildings in A and B schedule share a common wall (C schedule). In the suit, the respondents allege that the petitioner demolished the compound wall on 24.01.2020 on the strength of an ad-interim injunction obtained in O.S.No.66 of 2020 filed by her against the respondents. In O.S.No.66 of 2020, the petitioner had sought injunction restraining the respondents from obstructing the repair works of the common wall. Therein, the court granted an interim injunction against committing waste. After obtaining the injunction order, petitioner demolished the common wall with police aid. Thereupon, the respondent filed I.A.No.5 of 2020 in that suit, seeking direction to restore the wall. Pending the interlocutoary application, the petitioner withdrew O.S.No.66 of 2020. Hence, the respondents were constrained to file O.S.No.78 of 2020 seeking the relief of mandatory injunction, directing the petitioner to restore the demolished compound wall or in the alternative to permit the respondents to reconstruct the wall through an officer appointed by the court. Earlier the first respondent had filed O.S.No.705 of 2019 seeking a permanent prohibitory injunction restraining Amina, the predecessor-in-interest of the petitioner, from demolishing the common wall. The Advocate Commissioner appointed in the suit had filed a report about the existence of a common wall in between A and B schedule properties. The commissioner appointed in O.S.No.78 of 2020 reported that the wall has been demolished and its reconstruction is highly necessary for the safety and strength of the respondents' house. Based on the report, the court below issued Ext.P8 order directing the petitioner to restore the disputed wall to its previous condition in three days. The work was directed to be carried out under the supervision of the Advocate Commissioner. In the event of the petitioner failing to reconstruct the wall, the respondents were permitted to effect the construction, the expenses for which would be decided in the suit later. The original petition is filed aggrieved by Ext.P8 order.

(2.) Sri.K.B.Pradeep, learned Counsel for the petitioner contended that, by granting the prayer for interim mandatory injunction, the court below granted the main relief itself, which is impermissible. It is submitted that the first respondent has filed O.S.No.705 of 2019 before the Munsiff Court, Irinjalakkuda seeking permanent prohibitory injunction against demolition of the common wall and for a declaration of ownership over the wall. In that suit, the applications for temporary and mandatory injunction filed by the first respondent were dismissed by Ext.P5 common order. The first respondent has challenged the order in appeal and was not successful in obtaining interim order from the appellate court. It is contended that the first respondent having sought absolute ownership over C schedule wall in O.S.No.705 of 2019, the subsequent suit (O.S.No.78 of 2020) is not maintainable in view of Explanation IV to Section 11 and Order II Rule 2 CPC.

(3.) Learned Counsel for the respondents submitted that the petitioner had played fraud on the court by demolishing C schedule wall on the strength of the order of injunction against committing of waste obtained in O.S.No.66 of 2020 and withdrawing the suit when the respondents filed application for restoration of the wall. In such circumstances, the court was fully justified in requiring the petitioner to reconstruct the wall, in the contention. In reply to the contention that the suit is not maintainable in view of O.S.No.705 of 2019, it is submitted that O.S.No.705 of 2019 was filed by the first respondent against the predecessor-in-interest of the petitioner, seeking prohibitory injunction against demolition of the wall. Being so, the bar under Section 11 or Order XXII Rule 2 will not get attracted. Referring to Ext.P8 order, it is submitted that the impugned order was issued by the court below, on being convinced that, unless the demolished wall is reconstructed immediately, a portion of the respondents' residential house would collapse. Moreover, on equity also, the order is not liable to be interfered with. It is contended that no perversity, warranting interference of this Court in exercise of the power under Article 227, is made out.