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Judgment
A. P. Lavande, J.—By this petition under Article 227 of the Constitution of India, the petitioners challenge the judgment and order dated 24th January, 2011 passed by the District Judge-II, South Goa, Margao in Miscellaneous Civil Appeal No.58/2010 allowing the appeal against the order dated 11th May, 2010 passed by the Civil Judge, Senior Division, Vascoda-Gama on an application for temporary injunction filed by the plaintiffs in Regular Civil Suit No.47/2010/A(New). Respondent nos.1 to 6 filed the above referred suit against the petitioners and respondent no.7 seeking reliefs of declaration and injunction. Along with the suit, the plaintiffs also filed an application for temporary injunction restraining the defendants from developing the suit property. The application was opposed by defendants/ petitioners, inter alia, on the ground that the suit filed was barred by limitation. The trial Court by order dated 11th May, 2010 dismissed the application, inter alia, on the ground of laches/ limitation. The plaintiffs / respondent nos.1 to 6 preferred an appeal to the District Court which was made over to the District Judge-II, South Goa, Margao. The District Judge by order dated 30th October, 2010 allowed the appeal and granted temporary injunction sought for by the plaintiffs.
The defendants/ petitioners herein filed Writ petition No.798/2010 challenging the said order which was allowed by order dated 15th December, 2010 and the matter was remanded to lower appellate Court to decide the appeal in terms of the observations made there under. Thereafter, by the impugned order dated 24th January, 2011, the lower appellate Court allowed the appeal and granted injunction restraining the defendants, their agents etc. from doing any further construction in the suit property.
Mr. Nadkarni, learned Senior Counsel appearing for the petitioners submitted that the findings recorded by the lower appellate Court in the impugned order are patently arbitrary and perverse. Learned Counsel further submitted that the suit filed for declaration by the plaintiffs was clearly barred in as much as Article 59 of Schedule of the Limitation Act, 1963 is attracted and not Article 58. He further submitted that the plaintiffs had not made out any prima facie case nor any irreparable loss and injury would be caused to them in the event injunction was not granted. He further submitted that the balance of convenience is clearly in favour of the petitioners in as much the petitioners have already incurred expenditure of over Rs.2 Crores in carrying out construction in the suit property. Learned Counsel further submitted that the plaintiffs have no right in the suit property and there are absolutely no pleadings as required to establish even prima facie, fraud on the part of the petitioners. Learned Counsel further submitted that the learned lower appellate Court has misdirected itself in law and has interfered with well reasoned order passed by the trial Court refusing injunction to the plaintiffs. Learned Counsel further submitted that interference by the lower appellate Court is contrary to the well settled principles governing interference by the appellate Court against the orders granting or refusing injunction. Learned Counsel further submitted that since the construction of ground plus two floors has already come up, it would be just and proper to permit the petitioners to carry out further construction at their own risk and without any equity in their favour. Learned Counsel further submitted that the impugned order is patently unsustainable in law and as such, writ petition be admitted and the petitioners be allowed to carry out further construction at their own costs and risk and further the petitioners would not claim any equity in their favour. In support of his submissions, Mr. Nadkarni placed reliance upon the following judgments :
(i) Kalipada Chakraborti and Another Vs. Palani Bala Devi and Others, .
(ii) Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others, .
Per contra, Mr. Diniz, learned Counsel appearing for respondent nos.1 to 6 supported the impugned order and submitted that the lower appellate Court has rightly interfered with the order passed by the trial Court by applying the correct principles governing interference with the orders passed by the trial Court in the matters of injunction. Learned Counsel further submitted that the jurisdiction of this Court under Article 227 of the Constitution of India to interfere is very limited and this Court should not interfere with the order passed by the lower Court unless it commits any jurisdictional error. Learned Counsel further submitted that the suit filed by the plaintiffs is not barred by limitation and it is governed by Article 58 and not Article 59 as contended by Mr. Nadkarni. Learned Counsel further submitted that the petitioners carried out construction after filing of the suit after having notice of application for temporary injunction filed by the petitioners and as such they are not entitled to claim any equity in their favour. Learned Counsel further submitted that in the event the petitioners are permitted to carry out further construction in the suit property even at their own costs and without claiming equity, the present writ petition would be rendered infructuous in as much as the only relief sought by the plaintiffs against the defendants, is not to carry out any development/ constructions in the suit property. Learned Counsel further submitted that the petitioners are not entitled to change the nature of the suit property and in the event the petitioners are permitted to complete the construction and third parties are allowed to be put in possession of different portions of the building to be constructed, irreparable loss and injury would be caused to the plaintiffs.
In support of his submissions, Mr. Diniz placed reliance upon the following judgments :
(i) Maharwal Khewaji Trust (Regd) Faridkot v. Baldev Dass (2005) 4 SCC 408.
(ii) Vishwas prabhakar Nene and another V. Shree Nagpur Getta Mandir Trust; (2005) 2 BCR 65,
(iii) Julien Educational Trust Vs. Sourendra Kumar Roy and Others, .
(iv) Mohd. Yunus Vs. Mohd. Mustaqim and Others, .
Having considered the rival submissions and having perused the record I am of the considered opinion that the petitioners have made out an arguable case under Article 227 of the Constitution of India. Therefore, the petition deserves to be admitted. Hence, Rule.
In so far as the interim relief is concerned, I find merit in the submission of Mr. Diniz that in the event the petitioners are allowed to carry out further constructions and complete the same, the application for temporary injunction would be rendered infructuous and practically nothing would survive in the present writ petition. Therefore, I am not inclined to accede to the request made by Mr. Nadkarni that the petitioners be allowed to carry out further construction at their own costs and without claiming any equity. However, considering the fact that the lower appellate Court has reversed the order passed by the trial Court refusing injunction and that the petitioners have incurred substantial amount in the construction carried out so far, it would be just and proper to make Rule returnable early.
In view of the above, the interim relief sought for by the petitioners is refused. Rule is made returnable on 14th March, 2011. Mr. Diniz, learned Counsel waives notice on behalf of respondent nos.1 to 6.