CHINNAYYAN NADAR Vs. SELVI

JUDGEMENT

(1.) THE defendants 1 and 2 in the suit have filed the present Revision Petitions. THE respondents have filed the suit for declaration in respect of the right to use the 'C' Schedule property as a pathway to reach the 'B' Schedule well through 'A' Schedule property and consequently, to restrain the defendants from causing any obstruction and also a decree of mandatory injunction directing the first defendant who is the first petitioner in the Revision Petition to remove the granite basement wall obstruction made, within the same 'C' Schedule pathway. THE case of the plaintiffs is the 'C' schedule property is a pathway which is the subject matter of the suit which is in common use of plaintiffs and defendants and also 'A' Schedule property belonging to the plaintiff and 'B' Schedule is the well to which the plaintiffs have right to use. Pending suit, the plaintiffs have filed Interlocutory Application in I.A. No. 526 of 2002 praying for an order of interim injunction and the Trial Court has allowed the Interlocutory Application after contest by an order dated 8.4.2004 against which the defendants namely, the petitioners herein have filed Appeal in C.M.A. No. 14/2004 which is pending before the learned Subordinate Judge, Kuzhithurai. Pending the Appeal the defendants/appellants who are the petitioners herein have filed I.A. No. 190/2004 praying for an order of interim stay of operation of the order of injunction passed by the Trial Court dated 8.4.2004 in I.A. No. 526/2002 in O.S. No. 452 of 2002. THE plaintiffs who are respondents in C.M.A. No. 14 of 2004 have filed I.A. No. 230 of 2004 before the First Appellate Court and pending C.M.A praying for a direction against the respondents who are the petitioners herein in the Civil Revision, petition to remove the obstruction wall erected in the plaint 'C' Schedule pathway by misusing the ex parte interim stay order obtained in I.A.No.190/2004. THE Appellate Court has passed the common order in both the I.As. on 26.8.2004 by dismissing the I.A. No. 190/2004 filed by the defendants who are the revision petitioners herein and allowing the I.A. No.230/2004 filed by the plaintiffs who are the respondents in the Civil Revision Petition, pending the C.M.A. It is against the said orders the defendants have filed C.R.P. Nos. 437 and 438 of 2004 respectively. Out of which C.R.P. No. 437 arises from the order in I.A. No. 190 of 2004 and C.R.P. No. 438 that arises from the order in I.A. No. 230 of 2004.

(2.) WHEN the matters came up for admission this Court by an order dated 20.12.2004 has granted status quo as on 10.12.2004 to be maintained.

(3.) ACCORDING to the learned counsel for the petitioners, when once the suit itself is for the purpose of the right of declaration of the suit pathway in 'C' Schedule property and also for a mandatory injunction to remove the wall stated to have been put up by the defendants across the pathway and the suit itself is yet to be taken up for trial, pending Appeal from the Interlocutory Application and on an Application taken out by the plaintiffs for removing the wall which is the subject matter of the prayer of the mandatory injunction in the suit and granting of that prayer by the Appellate Court in effect amounts to granting decree while the trial itself has not commenced. The learned counsel also would contend that the Supreme Court has time and again laid down the law stating that interim mandatory injunction cannot be granted as a matter of course and the same can be only in exceptional cases.