Mohajam Sheikh vs Bernard Miranda

A.P. Lavande, J.—Heard Mr. Lawande, learned Counsel appearing for the petitioner and Mr. D''Costa Frias, learned Counsel appearing for the respondent. By this writ petition, the petitioner challenges the judgment and order dated 20th / 21st January, 2008 passed by the learned District Judge, South Goa, Margao in Miscellaneous Civil Appeal No. 55/2008 dismissing the appeal preferred against the order dated 7th August, 2008 passed by the learned Civil Judge, J.D., Margao in Regular Civil Suit No. 172/2007/F granting temporary injunction and restraining the appellants from excavating, erecting columns or doing any construction activities in the property bearing Chalta No. 6 of P.T. Sheet No. 42 within the distance of 1.5 meters from the wall of house owned by the respondent/ plaintiff. The petitioner is the defendant and the respondent is the plaintiff in the above referred suit.

The suit was filed by the plaintiff, who is residing in the house No. 184 in adjoining property bearing Chalta No. 7 of P.T.Sheet No. 42 owned by one Jose Bento Rosario Cardoz. The plaintiff claimed to be mundkar in respect of the said house. According to the plaintiff, the construction was undertaken without leaving any set back, as a result of which the walls of the said house were getting cracks and the house was in danger. The Trial Court, upon appreciation of the materials placed by both sides, granted injunction sought for by the plaintiff primarily on the ground that the house was in danger because of the construction and that the suit construction was not in accordance with plans and conditions imposed by the competent authority. The Appellate Court concurred with the finding given by the Trial Court.

Mr. Lawande, learned Counsel appearing for the petitioner / defendant assailed both the judgments, inter alia, on the following grounds :

(i) The plaintiff has no locus to file the present suit seeking reliefs claimed in the suit.

(ii) There is absolutely no evidence on record to establish that the plaintiff is a mundkar in respect of the suit house.

(iii) In the affidavit, the plaintiff claimed to be the son of Jose Bento Manuel Miranda, but the documentary evidence discloses that one Nicolau Miranda was registered as a mundkar in respect of the house.

(iv) Both the Courts could not have granted injunction restraining the defendants from carrying out construction in accordance with the plans approved by the competent authorities.

(v) Serious prejudice would be caused to the petitioner/ defendant if the impugned orders are not set aside and the defendant would be deprived from carrying out construction for a considerable length of time since the suit is likely to take substantial time for disposal.

In support of his submission that since the plaintiff has not been declared to be a mundkar, he cannot claim a right, learned Counsel relied upon the judgment of this Court in the case of Peter Fernandes and Others Vs. Luizinha Pereira and others;1998(3)All M R 704.

Per contra, Mr. D''Costa Frias, learned Counsel appearing for the respondent submitted that Nicolau Miranda, who was the father of the plaintiff, was registered as a mundkar and in the affidavit inadvertently, the name of the father of the plaintiff is mentioned as Jose Bento Manuel Miranda and actually he is the brother of the plaintiff. Learned Counsel further submitted that the defendant has admitted in paragraph 11 of the written statement that the existing house of the plaintiff is situated in the property bearing Chalta No. 7 of P.T.Sheet No. 42 and, therefore, the plaintiff has locus to file the suit against the defendant. He further invited my attention to the paragraph 7 of the affidavit dated 13th August, 2007 in which the defendant has admitted that the existing hut of Bernard Miranda (plaintiff) touches the boundary of the property. Mr. D''Costa Frias further submitted that the defendant is carrying out construction without leaving set back as required under the Building Rules and Regulation and, therefore, the plaintiff is entitled to file the suit in view of the ratio laid down by the Division Bench judgment of this Court in the case of Fatima Joao Vs. Village Panchayat of Merces 2000 (2) GLT 341. He further submitted that the impugned judgment and order was passed by the Appellate Court on 20th January, 2009 and the present writ petition has been filed on 11th January, 2010, almost after a period of one year and, therefore, on the ground of laches also, the plaintiff is not entitled to any indulgence from this Court.

Having considered the rival submissions and having perused the record, I am of the considered opinion that this is not a fit case in which this Court should exercise jurisdiction under Article 226 and /or 227 of the Constitution of India. I am unable to accept the submission of Mr. Lawande, learned Counsel for the petitioner that the plaintiff has no locus to file the suit. The record discloses that one Nicolau Miranda has been registered as a mundkar in respect of the suit house situated in the property bearing No. 7 of P. T. Sheet. At this stage, there is no reason to accept that Nicolau Miranda is the father of the respondent and it was inadvertently mentioned that the plaintiff was the son of Jose Bento Manuel Miranda as contended by Mr. D''Costa Frias. In any case, the defendant himself has admitted that the plaintiff has been residing in the suit hut and the construction undertaken by the defendant is touching the boundary of his property. Therefore, according to the defendant himself, the plaintiff is residing in the hut adjoining his property. Both the Courts have given concurrent finding that the construction if is carried out without leaving set back of 1.5 meters, would damage the hut of the plaintiff. The said finding cannot be said to be illegal or perverse warranting interference in exercise of writ jurisdiction. Even if it is considered that there is no prima facie evidence that the plaintiff is a mundkar, yet the plaintiff is still entitled for an order of injunction as granted by the Trial Court and confirmed by the Appellate Court since the construction if carried out without keeping set back of 1.5 meters, is going to damage the hut of the plaintiff. Moreover, the licences granted to the defendant by the competent authorities have already lapsed. In addition, the defendant / appellant has approached this Court after a period of almost one year from the date of passing of the order.

Considering all the above factors, I am of the considered opinion that this is not the fit case in which this Court should exercise extra-ordinary jurisdiction under Article 226 and or 227 of the Constitution of India and set aside the orders of the Courts below. In the result, therefore, the writ petition is dismissed with no order as to costs. However, the defendant is at liberty to approach the Trial Court for expeditious disposal of the suit since it is the case of the defendant that serious prejudice would be caused to him if interim order operates for a long time since the disposal of the suit would take a considerable length of time. If such an application is made, the Trial Court shall deal with the same on its own merits.