IMPORTANT POINT
Lower Appellate Court not justified to interfere with discretion exercised by Trial Judge about temporary injunction.

F.M. Reis, J.—Heard Shri S. D. Padiyar, learned Counsel appearing for the petitioners, Shri V. Shirodkar, learned Counsel appearing for the respondent no. 1 and Shri P. Karpe, learned Counsel appearing for the respondent no. 2.

2. The above Writ Petition, inter alia, seeks to quash the Order dated 30.01.2013 passed by the Adhoc District Judge, North Goa, at Panaji, in Misc. Civil Appeal No. 116 of 2012.

3. The records reveal that the respondent no. 1 filed Regular Civil Suit No. 161 of 2011 in the Court of the Civil Judge, Junior Division, at Panaji, against the Petitioner and the respondent no. 2, inter alia, seeks for a permanent and mandatory injunction and other consequential reliefs. An application for temporary injunction was filed therein, inter alia, to restrain the petitioners from doing any construction activity in the suit property and/or from changing the nature thereof in any manner. A reply and written statement was filed in the suit by the petitioners and the respondent no.2. The Petitioner also filed a counter claim in the said suit. The learned Civil Judge by an Order dated 31.10.2012, dismissed the application for temporary injunction.

4. Being aggrieved by the said Order, the respondent no.1 filed an appeal before the Lower Appellate Court, which came to be disposed of on 19.11.2012 thereby allowing the Appeal and quashing and setting aside the Order of the learned Trial Judge dated 31.10.2012.

5. Being aggrieved by the said order, the petitioners have filed the present writ petition.

6. Shri S. D. Padiyar, learned Counsel appearing for the petitioners, has assailed the impugned Order on the ground that it is well settled that an Order of temporary injunction is within the discretion of the learned Trial Court and, as such, interference in such discretionary Orders by the Appellate Court is in very exceptional circumstances when there is perversity or erroneous exercise of discretion by Trial Court. Learned Counsel further pointed out that the learned Trial Judge upon appreciating the evidence on record rightly exercised the discretion in refusing the temporary injunction application and, as such, the Lower Appellate Court was not justified to interfere in the said Order in an Appeal under Section 104 of the Civil Procedure Code. The learned Counsel futher pointed out that the findings and conclusion of the Appellate Court on the aspect of prima facie case balance of convenience and irreparable loss are misconceived in law and fact and, as such, cannot be sustained. Learned Counsel further pointed out that the Lower Appellate Court has failed to examine the provisions of the Goa (Regulation of Land Development and Building Construction) Act, 2008 and Goa Land Development and Building Regulations, 2010 in their correct perspective whilst passing the impugned Order. The learned Counsel further pointed out that the Lower Appellate Court has failed to examine that the petitioners had obtained all the requisite permissions from the statutory authorities and, as such, the petitioners were entitled to put up the construction in their own property. Learned Counsel further pointed out that the respondent no. 1 himself has carried out an illegal development in his own plot adjoining to the disputed property and, as such, the respondent no. 1 was not entitled for any equitable relief. The learned Counsel further pointed out that the learned Appellate Court has also failed to note that the major part of the construction of the frame work and slab of the second floor was completed and, as such, grave injury would occasion to the Appellants by the impugned Order. The learned Counsel further pointed out that the learned Appellate Court had erred in refusing to rely on the Deed of Rectification dated 06.05.1999. The learned Counsel further pointed out that a conversion Sanad was also obtained by the petitioners herein. The learned Counsel has thereafter taken me through the technical clearance Order dated 11.10.2011 from