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Judgment
Thottathil B. Radhakrishnan, J.
1.Heard learned counsel for the appellant and for the respondent. This appeal is against an order of temporary injunction in mandatory form which, by this time, has been given effect to. The appellant has been dispossessed with police force.
Subramaniya Iyer had one cent of land and a building TC. 37/91 in Pazhavangadi Gramom. It appears that that is a part of a row of houses. He died leaving behind his widow, two sons and a daughter. To our query; daughter Reshmy stays in Bangalore. Son Ramesh is abroad and the other son Renjith transferred his share in favour of the second defendant T.S. Dass.
On the allegation that the plaintiffs, i.e., the widow, son Ramesh and daughter Reshmi, are entitled to share in the property, suit for partition and other reliefs is filed with Renjith and his transferee Dass as the defendants.
I.A. No. 3075/11 was filed in that suit seeking an order of temporary injunction prohibiting the defendants from, among other things, commencing any business in the plaint schedule property. By ad-interim order dated 8.6.2011, learned Subordinate Judge granted an order of temporary injunction, restraining the defendants from making any new construction, altering the existing structure or inducting any strangers into the plaint schedule property. Conspicuously, the prayer for injunction against commencing any office was not granted. Later, that application was contested. That led to the detailed order dated 4.7.2011, whereby, the court below made absolute its ad-interim order as against the second defendant. It was specifically stated that as the first defendant not being in possession, an order of injunction as against him is unnecessary. Obviously therefore, whatever be its quality, rigour or acceptability, the court below proceeded as if the second defendant was in possession of the plaint schedule property. That order led to FAO.No.208/11 before this court. Different arguments were addressed before the Bench, including that the building in question is a dwelling unit and therefore, is covered by Section 44 of the Transfer of Property Act, 1882 and Section 4 of the Partition Act and as to whether the building could be put to use by a person under transfer by only one among the sharers. After recording all the arguments, the Bench was of the view that the matter requires deeper consideration. It was not inclined to interfere with the order issued by the trial court. Accordingly, the Bench decided the FAO on 10.8.2011 holding that interest of justice would be sub-served if the suit is disposed of at the earliest, totally untrammelled by any of the observations contained in the order, including the one that the property is a dwelling house. It is abundantly clear that this Court did not speak anything on the plea between the parties on the merits. It left open all contentions, including the question whether the property is a dwelling house. The question as to the application of Section 44 of the Transfer of Property Act, 1882 and Section 4 of the Partition Act were also thus left open to be decided at trial. Their Lordships had very cautiously thought it fit that interference at that stage would affect the process of trial.
In spite of the direction specifically contained in the aforesaid judgment dated 10.8.2011 in the FAO, the trial did not commence. Instead, what happened thereafter was that I.A. No. 5969/11, from which this appeal arises, was filed seeking a temporary but mandatory order of injunction removing the counter petitioner, who is the second defendant, from the plaint schedule property and to prevent him from conducting any commercial activity in the front portion of the building in view of the temporary injunction granted earlier by the court below. That stands granted and enforced immediately with police force. Hence this appeal.
For one thing, it is trite law that mandatory injunction in temporary form ought to be issued by civil courts only in exceptionally exceptional circumstances, including in a situation where its earlier order has been blatantly violated, depriving the beneficiary of its fruits.
In the case in hand, as already noted, going by the earlier order/judgment in the interlocutory application and in the appeal before this Court, there was no interdiction to the second defendant carrying on any business activity in the property in question. As already noted, the earlier application for temporary injunction contained a request that there may be an order of temporary prohibitory injunction against conducting any office. That was not granted. Obviously therefore, there was no temporary prohibitory injunction in that regard and the second defendant could conduct business or other activity. It is of importance to note that the application for mandatory injunction was filed seeking a direction that the plaintiffs may be given back possession of the plaint schedule building. Obviously, this shows that the second defendant is in possession of the building.
Remember, the questions whether the business could be conducted in a dwelling house and whether there is evidence to hold that the building is a dwelling house even going by the municipal records were specifically left open by this Court in the earlier round, to be considered at trial. That was obviously because the Bench was then sure that such issues are not to be dealt with in the course of interlocutory applications and that in the case in hand, those questions could be answered only by adjudicating on disputed facts; which would call for recording and deciding on evidence.
In our considered view, the impugned order has essentially changed the course of the litigation from what was envisaged by this Court in the judgment of the Division Bench in FAO.208/11. All that we need to say is that the impugned order of the court below is in excess of jurisdiction. Judicial comportment ought to have deterred its issuance. If the court below has proceeded on the premise that there was an order of temporary injunction against the second defendant from conducting any business or running any office in the plaint schedule property, it is wholly unfounded and the result of misreading of its own earlier orders and the orders of this Court. We are of the view that the impugned order is totally erroneous. We dissuade ourselves from commending further on the impugned order.
In spite of the persuasive arguments on behalf of the appellant and the respondents, we are not inclined to consider the effect of Section 44 of the Transfer of Property Act, 1882 and Section 4 of the Partition Act or any other material. We may also note that, even as is discernible from the cause title, the first plaintiff, the widow of late Subramania Iyer has described herself as residing also at South Amman Coil Street, North Paravoor, Ernakulam. We are, therefore, not persuaded to consider at this stage whether the first plaintiff has been able to show that she is residing in the plaint schedule property, particularly when, as already noted, the order of temporary injunction granted earlier by the court below and the appellate judgment issued by this Court in FAO.208/11 proceeded as if the second defendant is in possession.
In the aforesaid premise, we would vacate the impugned order. If that is done, we have necessarily to restore possession of the second defendant as was available as on the date of the judgment issued by this Court in the FAO. Be that as it may, having perused the different materials and the contents of the earlier judgment, we are of the view that what has to be preserved is that the property is not scouted upon by the plaintiffs as if they have got possession under the impugned order. We are also inclined to think that the second defendant-appellant, not having shown any right to conduct trade on the basis of documents issued by the competent statutory authorities, is not entitled to conduct business in the building in question, for the time being. On the whole, we are of the view that though the land being just one cent and a building thereon, it has to be preserved to ensure that the litigation reaches its logical end and the fruits of the litigation would then be available to the parties concerned. It is therefore found just and convenient, on the facts and circumstances of the case, to appoint a receiver for the suit property. In the result, this appeal is ordered appointing the Official Receiver, Thiruvananthapuram as the Receiver for the plaint schedule property. The Receiver shall take possession of the building on 17.8.2012. A report in this regard shall be placed before the court below. If any person is in occupation of the building as of now, such person shall vacate forthwith. The Official Liquidator shall take possession of the building and keep it under lock and key under his control. The jurisdictional police officials shall extent all assistance to the Official Receiver, as may be required by him in writing, to enforce this order. Further accounting, discharge, etc. in re the time of relieving of the Receiver ultimately, when the suit terminates, can be decided by the court below following this judgment. No costs.