Bombay High Court
Mohan Tejpal Tholar And Others vs Bhaskar Bhagwan Koli And Others on 29 June, 2022
Bench: Mangesh S. Patil
924.wp.4611.22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4611 OF 2022
1] Dr. Mohan Tejpal Tholar,
Age: 71 years, Occu: Medical Practitioner
2] Dr. Padmini A. Fariyas
Age : 72 years, Occ: Medical Practitioner
(Petitioner No.1 is the attorney holder of the
Petitioner No.2)
3] Dr. Priyanka Mohan Tholar
Age : 36 years, Occu: Medical Practitioner
All R/o. Tholar Hospital, Opp. Tarakpur
S.T. Stand, Ahmednagar, Taluka
and Dist. Ahmednagar. ... PETITIONERS
(Orig. Deft. Nos.1,5 and 6)
VERSUS
1] Bhaskar Bhagwan Koli
Age : 37 years, Occu: Service
R/o. Flat No.304, Court Yard
Building, Opp. Tarakpur S.T. Stand
Ahmednagar, Tal & Dist. Ahmednagar.
2] Chetan Pradip Bhandari
Age : 33 years, Occu: Business,
R/o. Flat No.202, Court Yard
Building, Opp. Tarakpur S.T. Stand
Ahmednagar, Tal & Dist. Ahmednagar.
3] Hemant Ramesh Gawali
Age : 43 years, Occu: Advocate
R/o. Flat No.204, Court Yard
Building, Opp. Tarakpur S.T. Stand
Ahmednagar, Tal & Dist. Ahmednagar.
4] Sachin Bhausaheb Patil,
Age : 47 years, Occu: Advocate,
R/o. Flat No.302, Court Yard
Building, Opp. Tarakpur S.T. Stand
Ahmednagar, Tal & Dist. Ahmednagar.
5] Sau. Anjali Anil Sarode
Age : 50 years, Occu: Advocate
R/o. Flat No.405, Court Yard
Building, Opp. Tarakpur S.T. Stand
Ahmednagar, Tal & Dist. Ahmednagar.
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924.wp.4611.22.odt
6] Pranit Deepak Medhe
Age: 29 years, Occu: Business,
R/o. Flat No.14, Court Yard E
Building, Opp. Tarakpur S.T. Stand
Ahmednagar, Tal & Dist. Ahmednagar. ... Orig. Plaintiffs
7] Mrs. Shirley Santosh Tholar
Age : 64 years, Occu: Household
8] Mr. Tanveer Santosh Tholar
Age : 43 years, Occu: Service
9] Mr. Raoul Santosh Tholar
Age: 34 years, Occu: Business,
All R/o. Ibrahim Colony, Opp.
Evangeline Boothe Hospital, A'Nagar
Tal & Dist. Ahmednagar.
10] M/s. Marc Developers
Partnership Firm through its Partner
Makarand Madhav Kulkarni
Age: 58 years, Occu: Business,
R/o. Office No.101, Marc House,
Opp. Datta Mandir, Savedi, Ahmednagar ... RESPONDENTS
(No.7 to 10 Orig. Defts)
...
Advocate for Petitioners : Mr. S.P. Brahme
Advocate for Respondent Nos.1 to 6 : Mr. A.M. Gholap
...
CORAM : MANGESH S. PATIL, J.
Reserved on : 15.06.2022
Pronounced on : 29.06.2022
JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. Learned
advocate Mr. Gholap waives service for the respondent Nos.1 to 6. At the
request of both the sides, the matter is heard finally at the stage of
admission.
2. The petitioners are the original defendant Nos.1,5 and 6 in a
suit filed by the respondent Nos.1 to 6 claiming perpetual injunction
restraining the petitioners from obstructing their use of couple of 9 meter
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wide roads originating from the western boundary of 6738.09 sq.mt. portion
of the north-east corner from survey No.3 which totally admeasures 13800
sq.mt. and also for mandatory injunction directing them to remove a wall
constructed across the 9 meter wide road along the western boundary of
survey No.3 erected by them adjacent to their Krupa Tholar Hospital. They
had also annexed a rough sketch to the plaint. By moving Application
(Exhibit-5) the respondent Nos.1 to 6 prayed for a temporary injunction as
also temporary mandatory injunction in terms of the main relief. The trial
court rejected the Application (Exhibit-5). The respondent Nos.1 to 6
challenged that order by preferring a Miscellaneous Civil Appeal in the
District Court. By the judgment and order under challenge, the appeal has
been allowed and the Application for interim relief (Exhibit-5) has been
allowed.
3. The learned advocate Mr. Brahme for the petitioners
vehemently submitted that a well reasoned order passed by the trial court
refusing to grant any interim relief has been unnecessarily and illegally
quashed and set aside by the appellate court by substituting its own views.
He would submit that the petitioners and their co-owners had only entrusted
6738.09 sq.mt. portion to the respondent No.10 who is a builder and a
developer. Pursuant to such development agreement he carried out
construction of buildings 'C' and 'E' over that property by getting the layout
sanctioned on 21.03.2016. The respondent Nos.1 to 6 (plaintiffs) are some
of the purchasers of the flats and shops from these two buildings. He would
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submit that by resorting to fraud and forgery and indulging into
misrepresentation the respondent No.10 developer had got the layout
sanctioned. Except the portion admeasuring 6738.09 sq. mt. of the north-
east corner, no right was transferred in respect of the remaining portion of
the land Survey No.3. Petitioners' bungalow and hospital situate to the west
of the property that was delivered for development and all these 9 meter
wide roads shown in the sanctioned layout had continued to be their
property and the roads were also internal roads, exclusively owned and
possessed by the petitioners. No right was ever transferred to the
respondent No.10 in respect of those internal roads. He pointed out that
after realizing the fraud the petitioners have already filed civil and criminal
proceedings against the respondent No.10. In view of such complexity of
the issue, the trial court had rightly refused to exercise the discretion in
favour of the respondent Nos.1 to 6 (plaintiffs). The discretion exercised by
the trial court has been unnecessarily interfered with and substituted by the
lower appellate court. The lower appellate court could not have indulged
into any scrutiny afresh. It could have interfered with the order of the trial
court only if the latter would have been perverse, arbitrary and capricious.
These limitations in exercise of jurisdiction to cause interference in the
orders passed by the trial court on temporary injunction applications were
overlooked by the appellate court.
4. Mr. Brahme would further submit that the order under
challenge granting temporary injunction in mandatory form is as good as
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granting the main relief which should have been avoided by the appellate
court. In support of his submissions he would place reliance on the
decisions in the matter of Wandar Ltd. & Ors. Vs. Antox India Pvt. Ltd.; 1990
Supp (1) SCC 727, Mohd. Mehtab Khan and Ors. Vs. Khushnuma Ibrahim
and Ors.; (2013) 9 SCC 221 and Metro Marins and Ors. Vs. Bonus Watch
Co. Pvt. Ltd. and Ors.; AIR 2005 SC 1444.
5. The learned advocate Mr. Gholap for the respondent Nos.1 to 6
(plaintiffs) submits that though there are inherent limitations on the powers
of the courts to grant temporary injunction in mandatory form, the facts and
circumstances obtaining in the matter are peculiar. There is no dispute
about the location of the 9 meter wide roads through which the respondent
Nos.1 to 6 (plaintiffs) are claiming to have a right to use. He would further
submit that the petitioners had entered into a development agreement with
the respondent No.10. The layout was got sanctioned from the Municipal
Corporation. The petitioners were even the signatories of the layout plan. It
clearly shows existence of the roads in dispute. Once having committed
about existence of such road, the petitioners cannot be allowed to resile
from such a layout. He would submit that it is a matter of use of the ways
by the respondent Nos.1 to 6 (plaintiffs) and even the public at large. Even
if the petitioners are now coming with a case of fraud, forgery and
misrepresentation, these are the facts which are still to be established. He
would submit that there was enough material before the trial court to
demonstrate a good prima facie case in favour of the respondent Nos.1 to 6
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(plaintiffs), balance of convenience was in their favour and allowing the
petitioners to obstruct them from using the roads would certainly put them
to irreparable loss. Ignoring all the aforementioned facts and circumstances
and the principles which govern the law relating to temporary mandatory
injunction, the trial court had refused to exercise the discretion in their
favour which has been rightly reversed by the lower appellate court.
Learned advocate Mr. Gholap would place reliance upon the decision in the
matter of Deovraj Vs. State of Maharashtra and Ors.; (2004)4 Supreme
Court Cases 697.
6. I have carefully considered the rival submissions and perused
the papers including the orders passed by the lower courts. It is trite that as
laid down in the various decisions cited by both the sides (supra),
parameters for granting interim relief in mandatory form have been well
settled. In the matter of Dorab Cawasji Warden Vs. Coomi Sorab Warden;
(1990) 1 SCR 332 which is relied upon in the matter of Metro Marins
(supra) it has been held in para 6 as under :
"The Relief of interlocutory mandatory" injunctions are granted
generally to preserve or restore the status-quo of the last non-
contested status which preceded the pending controversy until the
final hearing when full relief may be granted or to compel the
undoing of those acts that have been illegally done or the
restoration of that which was wrongfully taken from the party
complaining. But since the granting of such an injunction to a
party who fails or would fail to establish his right at the trial may
cause great injustice or irreparable harm to the party against
whom it was granted or alternatively not granting of it to a party
who succeeds or would succeed may equally cause grate injustice
or irreparable harm".
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Bearing in mind these principles, if one applies them to the fact
situation of the matter in hand, at the outset, it is necessary to note that
except the dispute about the alleged fraud practised upon the petitioners by
the respondent No.10 who is the defendant No.7 in the Suit (developer),
there is not much of a dispute between the parties.
7. Admittedly, the petitioners are the owners of Survey No.3 which
totally admeasures 13800 sq.mts. They entered into a development
agreement with the respondent No.10 in respect of 6738.09 sq.mt. portion
of the north-east corner by way of a registered agreement dated 07.05.2015
as a part of the Development Agreement, a layout was got sanctioned from
the authorities in which the disputed roads, as demonstrated in the rough
sketch annexed to the plaint, were shown. Three of the petitioners were the
co-signatories whose signatures purported to be theirs with their names
appear on that approved layout which also bears signatures of the Town
Planer of the Municipal Corporation and that of the respondent No.10.
Obviously, for this very reason, the petitioners have now filed a civil suit and
have even initiated a criminal proceeding alleging fraud. The fact remains
that prima facie, existence of the disputed roads which are part and parcel
of the layout stands admitted. Whether those are only the internal roads
and whether the layout was got sanctioned by practising fraud are the issues
which can be answered only after the decision in the petitioners' suit.
8. It is a matter of record that this development agreement was
entered into and the layout was got approved about 5 to 6 years before
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petitioners filed the Suit and initiated a criminal proceeding. This clearly
shows that even they had failed to take prompt steps. It is to be borne in
mind that the petitioners are not layman. They are highly educated persons
and some of whom are even medical practitioners. If these facts are borne
in mind, it can certainly be said that the disputed roads are in existence
which are 9 meter wide through which one can easily have access to the
portion admeasuring 6738.09 sq.mt. which has been handed over for the
development to the respondent No.10. The principle of estoppel by conduct
and by record are the important hurdles which the petitioners will have to
cross. All these are the decisive factors which were clearly ignored by the
trial court while refusing to exercise the discretion that was vested in it.
9. There is no dispute about the fact that the petitioners' hospital
situates in the remaining western side portion from the Survey No.3 and to
the north of which their bungalow situates and even the roads in dispute can
be used to have access to these properties. The trial court seems to have got
swayed away by such a topography.
10. It is also a matter of record that the respondent Nos.1 to 6
(plaintiffs) can have access to their individual flats and shops by the
alternate ways available in the form of a 9 meter wide road along the
eastern boundary of survey No.3 which originates from the southern side
wide public road. The dispute here is not in respect of any easement. The
question is while handing over a portion of the property to the respondent
No.10 for development, when prima facie the petitioners had committed
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themselves by signing the sanctioned layout plan showing existence of these
many access points and regarding which there has been no stipulation,
certainly the buyers of the developed property like the respondent Nos.1 to
6 (plaintiffs) can certainly claim to have a right to use these disputed ways.
11. In this respect, it is also important to note that in the rough
sketch annexed to the plaint it was specifically demonstrated that across
both these 9 meter wide roads which are east-west in direction, the eastern
end of which is the boundary of 6738.09 sq.mt. portion that has been given
to the respondent No.10 for development, walls have been erected by the
petitioners. Similarly a barrier has been erected across the western side 9
meter wide road. It has also been specifically averred that one of these two
walls across the northern of the two east-west roads was demolished by the
Municipal Corporation on 25.02.2020. It was obviously bound to be the
case since those were shown as access points to the north-east 6738.09 feet
portion given for development. All these facts and circumstances clearly
demonstrate that the respondent Nos.1 to 6 (plaintiffs) have a strong prima
facie case and balance of convenience is also in their favour. Applying the
principles for grant of temporary injunction in mandatory form discussed in
the aforementioned decisions, taking stock of the circumstances, this was
indeed a fit case to grant such temporary mandatory injunction to bring
about the status quo ante.
12. Needless to state that if and when the petitioners would succeed
in proving that the layout was got sanctioned by practising fraud, certainly,
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the scenario thereafter would be different and they would be entitled to
treat and use these disputed roads as their internal roads. At this juncture,
in view of the aforementioned facts and circumstances, depriving the
respondent Nos.1 to 6 (plaintiffs) and anybody else from using these roads
would tantamount to allowing a change in the layout plan which has been
duly sanctioned by the Municipal Corporation.
13. All these facts and circumstances which were clinching and
material were overlooked by the trial court. The order was perverse,
arbitrary and capricious and has been rightly interfered with and reversed
by the appellate court by the impugned judgment and order. I find no
illegality in the order passed by the lower appellate court.
14. The Writ Petition is dismissed. The Rule is discharged.
(MANGESH S. PATIL, J.)
habeeb
