SUBHAS CHANDRA MAITY Vs. DHARANI DHAR MAITY

JUDGEMENT

(1.) . - This is an application under Sec. 115 of Code of Civil Procedure arising out of an order passed by the Learned Additional District Judge, First Court, Midnapore dated 12th Oct., 2001 in Miscellaneous Appeal No. 96 of 2000. Such order was passed in connection with an order of the Court of first instance being numbered 24 dated 11th Aug., 2000 in an application under Title Suit No. 9 of 2000 refusing the prayer of defendants/appellants for mandatory injunction for removal of obstacles in the pathway in question. However, a pre-existing order of status quo was available therein. The plaintiff's allegations are that the defendants have been trying to create a passage over the 'ka' schedule property by removing the old fencing thereon. The defendants did not file any written statement as yet. But by filing the application for mandatory injunction they contended that after the order passed by the Court of first instance directing both sides to maintain status quo on the application of the plaintiffs for temporary injunction, the plaintiffs tried to obstruct such pathway of the defendants by putting fencing at a place on such pathway. The defendants prayed for removal of such fencing by way of mandatory injunction. Admittedly the 'ka' schedule properties belonged to the plaintiffs and 'B' schedule properties belonged to the defendants. Neither any documentary evidence is forthcoming to show that the defendants are enjoying the said pathway by way of an easement nor any mouza map speaks about existence of any such pathway. According to the defendants/appellant the plaintiffs have closed the pathway by putting fencing after the order of status quo. The defendants relied upon two reports of the Commissioners dated 5th Feb., 2000 and 10 April, 2000. Defendants have also filed an application for contempt. From the sketch map of the earlier report made by the Advocate Commissioner it has been found that a mud pathway to western side of 'ka' schedule land has been shown which leads to the recorded public road in the south. It has also been indicated in the said sketch map that a fencing shown by green marks have been put on the southern and south-eastern boundary of the pond by the side of mud pathway. The subsequent report which was submitted after the order of status quo to indicate that the defendants have got the passage on the eastern boundary and southern boundary of the plaintiff's pond and the defendants are to come to the morum path on the west of the pond through such pathway and then lead towards the south to reach the wider public pathway in plot No. 402. There is indication in the field-note that some fencing has been put at one point of the pathway on the eastern boundary of the said pond. As per the second report, some branches of the trees etc. have been loosely kept there and the pathway has been obstructed. According to the first Appellate Court there may be objections against the reports of the Learned Commissioners. But it is clear from such reports that there has been some fencing and obstruction of the said pathway, although the first report does not indicate a clear pathway through the eastern and southern portion of the plaintiffs' pond. Considering such reports and facts and circumstances and the background of the dispute between the parties it is evident from the copies of the documents of the proceedings before the Executive Magistrate that there was some pathway in existence at least at the time of passing of the earlier order by the Court of first instance but the same has been obstructed by some loose fencing etc. as indicated in the second report of the Advocate Commissioner. The question regarding alternative pathway may be a matter of controversy to be decided by way of evidence during the trial of this suit, but here the question is that some sort of obstruction has been made on the pathway, which has been sought to be removed. If this obstacle is removed the plaintiffs will not suffer with the immediate loss and injury. The Court cannot shut its eyes to the possible violation of the order, directing both sides to maintain status quo. Therefore, the defendants' application for mandatory injunction for removal of the obstacles on the alleged pathway was allowed.

(2.) Challenging such order in this Court Mr. P.B. Sahoo, Learned Senior Counsel appearing for the plaintiffs/petitioners, contended before this Court that first report of the Commissioner is unchallenged. There was no pathway in 'ka' schedule land. There was no objection to the first report. Status quo order was pre- existing. No appeal was preferred from such order of status quo. Violation of the case was made ten days thereafter. Second inspection by the Commissioner is at variance with the first report. Written objection was made. The same was not yet heard. There was no noting of existing pathway. Coming to the conclusion that by keeping such loose fencing etc. the order has been violated is outcome of surmise or conjecture. Therefore, such order cannot be sustained. By showing paragraph 14 of the judgment reported in AIR 1990 Supreme Court 867 (Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors) he contended that the relief of interlocutory mandatory injunctions is 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 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. But since the granting of such an injunction to a party who fails or to fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting 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 :

(3.) On the other hand, Mr. Pinaki Ranjan Mitra reiterated the facts and cited a Division Bench judgment of the Calcutta High Court reported in AIR 1986 Calcutta 220 (Sujit Pal Vs. Prabir Kumar Sun & Ors.) to establish that the Court could grant temporary mandatory injunction under Sec. 151 by directing the police to restore possession to the plaintiff, the injury being grave and serious, ends of justice demanding that Court should grant immediate relief.