Shri Avinash Sonawane vs Jessline Britto and Others

R.M.S. Khandeparkar,J.

Heard. This is an appeal from order dated 29.02.2008 passed by the District Judge, Panaji, Goa in Civil suit No. 14/2008 filed by the respondent No.1 in the said Court. By the impugned order, the trial Court has granted ex-parte ad interim injunction in terms of prayer clause (a) of the application for temporary injunction. The prayer clause (a) of the said application was in fact that pending the hearing and final disposal of the suit, the appellant herein be restrained from carrying out all works relating to the suit constructions standing on the suit plot and also to restrain the appellant from carrying out all work incidentally and ancillary. The trial Court has granted ex-parte relief in terms of the said prayer and has issued show cause notice as to why the said relief granted to the respondent No.1 should not be confirmed till the final disposal of the suit and notice is made returnable on 24.3.2008. The main ground on which the impugned order is sought to be challenged is that, the appellant had been compelled to approach different forums from time to time for completion of the construction in his plot as there were complaints filed in various forums which the appellant had to answer and get interim relief granted by those authorities vacated from time to time. The second ground of challenge is that considering the fact that the trial Court had granted ex-parte relief, the Court below ought not to have made the notice returnable so late and it could have granted early date for hearing in the matter.

The perusal of the impugned order discloses that the trial Court after taking into consideration the factual averments made in the plaint and considering the law applicable to the matter in issue, was satisfied about prima facie case being made out, has granted the ex-parte relief. In spite of a clear finding to the effect that the trial Court was satisfied on the basis of factual matrix disclosed in the plaint, the appellant have chosen to file the appeal without placing on record a copy of the plaint. It is also pertinent to note that para. 1 of the application for temporary injunction clearly states that :

The applicant has on this day filed a suit for declaration and 3 injunction and the contents of the plaint may be treated as reproduced herein for brevity''s sake.

Inspite of the same, the appellant had chosen to suppress the copy of the plaint while filing the appeal. When specifically asked about the same, the Advocate for the appellant produced the copy of the plaint for my perusal.

The perusal of the plaint discloses various averments regarding the factual aspects of the matter. It contains the averments relating to reduction of the side set back on account of construction of balcony towards the plot of the respondent No.1 which is stated to be on one of the boundary of the appellant''s plot. There is specific averment in the plaint that height of the building of the appellant in terms of the approved plan is about 11.50 meters and the same requires in terms of the provisions of the law under Planning and Development Authorities Regulation that it should maintain 4 meters side set back. The documents placed on record along with the memo of the appeal, however, disclose that the plan of the appellant''s construction has been approved with 3 meters side set back. These and other averments regarding the factual aspects of the matter have been considered by the trail Court while passing the interim order. There is absolutely no case for interference in the said ex-parte order. Besides the trial Court had granted ample opportunity to the appellant by issuing show cause notice for allowing the appellant to show cause against confirmation of the ex-parte order. The appellant could have very well filed an appropriate reply to the show cause notice and could have shown the trial Court that the respondent No.1 had no case to seek the ex-parte relief granted by the trial Court. There is absolutely no justification for entertaining this appeal against the impugned order and that too without even disclosing the factual position on the site which could disprove the claim of the respondent on the basis of the averments made in the plaint.

Added to the above, para. 9 of the application for temporary injunction clearly refers to the allegation of non-maintenance of the side set backs and consequences thereof as well as consequences of the construction in the plot which would prejudicially affects the rights of the respondent No.1 vis-a-vis her plot. It is stated in para. 9 that

the suit construction is bound to result in flooding and consequential damage to the said respondent''s plot and non-maintenance of set back is bound to adversely affect the right to privacy of the respondent No.1since the illegal extensions of the suit construction virtually come adjacent to the plot boundary of the said respondent. It is further stated by the respondent No.1 that water flowing from protruding balconies of the suit construction would fall from the plot of the respondent, furthermore, the protruding balconies due to non-maintenance of the set back invade the rights of the respondent to enjoy light and air.

The appeal memo or the application annexed thereto nowhere discloses any answer to the above pleadings. To the specific query in this regard, my attention was sought to be withdrawn in para. 8(d) of the memo of the appeal which reads thus

The appellant submits that no prejudice whatsoever can be caused to the respondent No. 1 as the structure is structurally complete up to 90 % only the finishing of internal work is left to be done. The construction as such is not affecting her at all as it is standing since November 2006 and since December 2006 the appellant has not been able to carry out any work on account of the series of the litigations filed against him to which the appellant stood the test and his structure was held in conformity with the Rules prevalent.

With respect to the learned Advocate for the appellant, I am unable to find out any answer in para. 8(d) of the memo of the appeal to the averments by the respondent in her application for temporary injunction before the trial Court and particularly para. 9 thereof. The contention that no prejudice will be caused by the construction to the respondent is no answer to the contentions sought to be raised on the part of the respondent that the protruding balconies are towards respondent''s plot and on that count the water flowing from such balcony would fall in the plot of the respondent and it will also invade her right to light and air. In the course of the argument, it is not disputed that such balconies are in the 3 meters width area which is stated to have been maintained by the appellant between the boundary line of the respondent''s plot and the appellant''s construction. In these circumstances, in the absence of any factual matrix being available on record to meet the case put forth by the respondent in the plaint and the application for temporary injunction filed by the respondent, it is not possible to accept the contention sought to be canvassed on behalf of the appellant nor it is possible to interfere in the interim order on the basis of mere submissions on behalf of the appellant.

The grievance that the trial Court could have fixed early date in the matter in view of the fact that trial Court had granted ex-parte relief is, however, well founded. Bearing in mind the provisions of law comprised under Order 39 of C.P.C. that when the Court grants ex-parte order, it is necessary for the Court to grant early date in the matter to enable the defendant to appear before the Court and satisfy the Court in regard to his or her case, certainly returnable date could have been given within a period of a week and so. However, on that ground there is no case for interference in the impugned order. The trial Court has already fixed the date of hearing to be 24th March, 2008; tomorrow is the Saturday and in the next week there are 3 working days and thereafter, next working day happens to be 24th March, 2008. In these circumstances, on the ground of having not granted early date, it would not be proper to interfere in the impugned order at this stage. For the reasons stated above, therefore, no case is made out for interference in the impugned order. Hence, the appeal is hereby rejected.