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2018 Supreme(Bom) 2084
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT GOA
C.V. Bhadang, J.
Saloni Subhashchandra Nagzarkar - Appellant
Vs.
Suyog Samuel Arawattigi - Respondent
Writ Petition No. 434 of 2018
Decided On : 05-07-2018
S.D. Lotlikar, Adv., Aditi Naik, Adv., Ashwin D Bhobe, Adv., Shradha Bhobe, Adv.
Headnote:
Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act – Temporary Injunction – By this petition, the petitioners/defendants are challenging the judgment and order passed by the learned District Judge at Margao, in Miscellaneous Civil Appeal – By the impugned judgment, the learned District Judge, while allowing the appeal, has granted temporary injunction in favour of the respondent/plaintiff – As a result of the same, the petitioners have been restrained from dispossessing the respondent or his family members, from the suit hospital or interfering with the activities of the suit hospital, in any manner. – Held, Respondent is provided with a residential accommodation in the suit hospital and in the event if, there is interference with the activities in the suit hospital or the residential accommodation of the respondent, he would per se suffer irreparable loss. – It is claimed that there are indoor patients in the suit hospital, whose treatment and surgeries are planned and scheduled. – Thus, any interference with the hospital activities is bound to result in the disruption of the hospital activities and would also adversely affect the patients. – Court, therefore, find that the balance of convenience lies in favour of the respondent, for grant of the relief of temporary injunction. – Court would now propose to briefly deal with the cases cited on behalf of the petitioners. – At the outset, it may be mentioned that there cannot be any dispute about the principles laid down in the various authorities. – Court find that the cases cited turned on their own facts. – For instance, in the case of Madhi Gaude , admittedly, the suit shed was an illegal construction, the demolition of which was ordered by the Village Panchayat. – The respondent had failed to produce any license for construction of the suit shed, which admittedly was an illegal construction. – It was in these circumstances found that the suit shed cannot be protected under the garb of an injunction against the appellants. – Prayer clause is not properly and happily worded, when it seeks permanent injunction (which should have been temporary injunction), at an interim stage. – Secondly, such an injunction can only be granted, until the respondent is evicted in due course of law and cannot be a blanket injunction. – Thirdly, Court find it would be necessary to mould the reliefs and balance equities, while granting such injunction. – It has come on record that the respondent was making some periodic payments. – In para 12 of the plaint, it has come on record that the plaintiff had paid Rs. 80,000/-, which according to him was paid by way of rent. – Grant of injunction should be subject to a condition of payment/deposit of certain amount by the respondent, before Trial Court every month. – Court find that the respondent can be directed to deposit an amount of Rs. 75,000/- per month, before the Trial Court, during the pendency of the suit/subsistence of the order of injunction. – Such a deposit would be made on or before 10th of each English calendar month. – Impugned order is modified – Petition Partly Allowed.
JUDGMENT :
C.V. Bhadang, J.
Rule made returnable forthwith. The learned Counsel for the respondent, waives service. Heard finally by consent of parties.
2. By this petition, the petitioners/defendants are challenging the judgment and order dated 20.03.2018, passed by the learned District Judge at Margao, in Miscellaneous Civil Appeal No. 13/2018. By the impugned judgment, the learned District Judge, while allowing the appeal, has granted temporary injunction in favour of the respondent/plaintiff. As a result of the same, the petitioners have been restrained from dispossessing the respondent or his family members, from the suit hospital or interfering with the activities of the suit hospital, in any manner.
3. The brief facts necessary for the disposal of the petition may be stated thus:
Dr. Subhashchandra Nagzarkar (since deceased) was running Dr. Nagzarkar Hospital at Margao-Canacona road (hereinafter referred to as the suit hospital). Dr. Subhashchandra Nagzarkar met with an accidental death, after which, the suit hospital remained closed for some time. The petitioner no. 1 happens to be the widow, while the petitioner no. 2 is the son of Dr. Subhashchandra Nagzarkar. It appears that some time in August 2004, the petitioner no. 1 published an advertisement in daily "Mid-Day", requiring the interested parties to contact her for the purpose of running the suit hospital. It may be mentioned that at the relevant time, petitioner no. 2 was taking education and has since obtained M.S. Degree and is a Doctor by profession. The respondent, at the relevant time, was working as a Doctor at a hospital in Mumbai. The respondent showed interest in running the suit hospital as a general hospital. Accordingly, petitioner no. 1 and the respondent entered into an agreement dated 07.10.2004, which was for a period of five years i.e. from 07.10.2004 to 07.10.2009. Undisputedly, another agreement, for a period of five years was executed for further period from 07.10.2009 to 07.10.2014. Thereafter, a third agreement was executed on 12.11.2014, which was for a period of three years commencing from November 2014. According to the petitioners, the third agreement was restricted for a period of three years, looking to the fact that the petitioner no. 2 would complete his medical education and then could run the hospital on his own.
4. According to the respondent, certain conditions in the agreements were not meticulously followed by the parties, while running the suit hospital. Owing to the cordial relationship between the parties, at that time, nobody bothered to look into the issue of failure on the part of the parties to meticulously adhere to the terms of the agreements. In short, according to the respondent, right from the year 2004, till the filing of the suit, no net profits have been taken or distributed in the manner stated in clause no. 4 of the agreements. Although, clause no. 4, stipulates that the management of the suit hospital is handed over to the respondent, which is subject to overall supervision and control of the petitioner no. 1, the same was never exercised by the petitioner no. 1. Although, clause no. 5 provides that the staff members shall be appointed by the petitioner no. 1, however, the entire staff was appointed and paid by the respondent. In short, according to the respondent, he is independently running the suit hospital, without any participation from the petitioner no. 1. The respondent, in such circumstances, filed the aforesaid suit, inter alia, restraining the petitioners from interfering with the activities in the suit hospital.
5. The petitioners filed their written statement and have raised a counterclaim. It is contended that the respondent was a mere manager and thus, cannot be said to be in settled possession, of the suit hospital. After the expiry of the third agreement, by efflux of time, the respondent is a rank trespasser, who is not entitled to any injunction, as the possession of the respondent was on behalf o
