The court emphasized the need to preserve or restore the status-quo until the final hearing and considered the existence of disputed roads and the layout plan sanctioned by the Municipal Corporation in determining the grant of temporary mandatory injunction.

JUDGEMENT :

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 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 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 northeast 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 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 Mari