Bombay High Court
Shri. Vikas S/O. Santoshrao ... vs Sou. Nimubai W/O. Sitaram Darote ... on 18 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.4600 OF 2015
1. Vikas s/o Santoshrao Khedikar
aged 42 years, Occ. Business.
2. Rajkumar Govindlal Gupta
Age major, Occ. Housewife,
R/o Binaki Mangalwari Nagpur. ... Petitioners.
-vs-
1. Nimubai w/o Sitaram Darote
Aged 38 yrs. Occ. Housewife
2. Namibai w/o Shankarro Wanjari
Age major, Occ. Housewife,
3. Kusum w/o Rajendra Lande
Age major, Occ. Housewife,
4. Renuka Sanjay Gaydhane
Age major, Occ. Housewife,
5. Chanda Kamlesh Khante,
Age major, Occ. Housewife
6. Radha Moreshwar Sakure
Age major, Occ. Housewife
7. Tulsa Natthu Deshmukh,
Age major, Occ. Housewife
All R/o Gondpura, Shriram Society,
Bastarwari, New Paratibha Junior College,
Nagpur. ... Respondents.
Dr Anjan De, Advocate for petitioners.
Shri R. D. Bhuibhar, Advocate for respondent Nos.1 to 7.
::: Uploaded on - 20/07/2016 ::: Downloaded on - 30/07/2016 09:48:49 :::
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CORAM : A.S.CHANDURKAR, J.
DATE : July 18, 2016
Oral Judgment :
Rule. heard finally with consent of learned counsel for the
parties.
The petitioners who are the original plaintiffs are aggrieved by the
order passed by the Appellate Court dated 01/07/2015 thereby allowing the
miscellaneous appeal filed by the defendants and setting aside the order of
temporary injunction granted by the trial Court.
2. The petitioners have filed suit for declaration and perpetual
injunction seeking to restrain the respondents from making any construction
on the portion of the suit property which according to them has been
encroached by the respondents. The trial Court by order dated 29/11/2014
passed an order of temporary injunction restraining the respondents from
making any further construction. The Appellate Court however, allowed the
appeal by order dated 01/07/2015 and set aside the order of the trial Court.
Hence challenge to the said order.
3. Dr A. De, the learned counsel for the petitioners submitted that
the trial Court was justified in granting the order of temporary injunction
especially after finding that the defendants had undertaken construction
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without any sanction from the local Authorities. He submitted that the
Appellate Court without considering this aspect of the matter and despite
observing that a prima facie case had been made out by the petitioners,
reversed the order of the trial Court granting temporary injunction. He
submitted that though the order of the trial Court was passed on
29/11/2014, the respondents flouted the said order and continued with the
construction which was clear from the letter dated 07/02/2015 issued by the
police Authorities. He therefore submitted that the order of the Appellate
Court was liable to be set aside.
4. Shri R. D. Bhuibhar, the learned counsel for the respondents
supported the impugned order. According to him, the Appellate Court was
justified in observing that irreparable loss and balance of convenience was in
favour of the respondents. He submitted that if the construction in question
was stopped, greater loss would suffered by the respondents.
5. Perusal of the documents on record indicates that the trial Court
after being satisfied about the existence of a prima facie case and absence of
any sanction been in favour of the respondents, passed an order of temporary
injunction. Even after this order was passed on 29/11/2015, the
respondents were found to have continued with the construction on
07/02/2015. The Appellate Court also noted that a prima facie case in
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favour of the petitioners had been made out. However, only on the ground
that the respondents would suffer irreparable loss it reversed the order of
temporary injunction. It is well settled that in the matter of grant of
temporary injunction, the discretion exercised by the trial Court cannot be
interfered with lightly merely because another view of the matter is possible.
In the present case after holding that a prima facie case was in favour of the
petitioners, the Appellate Court ought not to have vacated the order of
temporary injunction especially when even after granting temporary
injunction, it was prima facie found that on 07/02/2015 a slab had been
found constructed. Admittedly, there is no permission granting sanction to
the construction. In these facts therefore, the interests of justice would be
met by directing the parties to maintain the position as is prevailing today
and by expediting the proceedings in civil suit.
6. In view of aforesaid, the following order is passed :
(i) The order dated 01/07/2015 passed by the Appellate Court in
M.C.A. No.49/2015 is set aside.
(ii) The parties shall maintain the position as it is prevailing today
during pendency of the civil suit.
(iii) The proceedings in R.C.S. No.1332/2014 are expedited. The suit
shall be decided by the end of March 2017.
(iv) It is clarified that the observations made in this order are only for
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the purposes of considering the prayer for interim relief and the
suit shall be decided on its own merits without being influenced
by the same.
Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE
Asmita
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-: C E R T I F I C A T E :-
" I certify that this Judgment/order uploaded is a true and
correct copy of the original signed Judgment/order."
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Uploaded on :
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