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2023 Supreme(Online)(Bom) 615
HIGH COURT OF BOMBAY
B. P. Colabawalla, J
Mr. Lawrence Santan Pereira, Major, Indian National, Residing at House No. (not known) Mercurium, Agassaim, Tiswadi, Goa – Appellant
Versus
Mr. Assis Piedade Fernandes, 72 years of age, Major, Indian National, Service – Respondent
Writ Petition No. 276 of 2022 | Regular Civil Suit No.76/2009/C | Miscellaneous Civil Appeal No.60/2020
For the Appellants/Petitioners: Mr. J. E. Coelho Pereira, Mr. Bernard Fernandes, Mr. V. Braganza
For the Respondents: Mr. Pranav Shenvi Kakodkar, Mr. John Abreu Lobo
Appellate courts should not overturn trial court discretionary injunctions unless they are arbitrary or contrary to established legal principles.
Headnote:(A) Goa Land Development and Building Construction Regulations, 2010 - Regulation 4.4.2 and 4.7 - Temporary Injunction in property dispute - Appellate Court reversed Trial Court’s order; held that proper setbacks were not maintained. Petitioners appealed, claiming Appellate Court exceeded its jurisdiction and inadequately justified reversal of Trial Court's findings on prima facie case, balance of convenience, and irreparable loss - Court affirmed, ruling that discretion of Trial Court was exercised judiciously; ordered restoration of initial injunction denial. (Paras 12, 11, 30, 32)
(B) Discretion of Courts - Appellate Courts should not interfere with Trial Courts’ discretion unless it is arbitrary or capricious. (Paras 29, 31)
Facts of the case:
The dispute involved a permanent injunction application filed by plaintiffs against neighbors regarding construction on their property, which they claimed violated setbacks and affected their rights to light and privacy. Initial injunction denied by Trial Court was reversed by Appellate Court, prompting the present writ.
Findings of Court:
The Appellate Court's order was quashed and the Trial Court’s order reinstated, allowing the construction to proceed according to approved permissions.
Issues: Whether the Appellate Court justifiably interfered with the discretion exercised by the Trial Court to deny the injunction, and whether the required setbacks and permissions were violated.
Ratio Decidendi: The judicial discretion regarding temporary injunctions is primarily with the Trial Court, which must not be overturned unless it is devoid of rationality or legality.
Result: Writ Petition allowed, Appellate Court order set aside.
JUDGMENT:
1. Rule. With the consent of Parties, Rule made returnable forthwith and heard finally.
2. By the present Petition, the Petitioners [who are original Defendant Nos. 1(a) and 2 in Regular Civil Suit No.76/2009/C] take exception to the judgment and order dated 11.05.2022 (“the impugned order”) passed by the learned District Judge-3, North Goa, at Panaji in Miscellaneous Civil Appeal No.60/2020 [for short, “the Appellate Court”]. By the impugned order, the Appeal preferred by Respondent Nos. 1 and 2 herein [the original Plaintiffs] was allowed and the Appellate Court restrained the Petitioners herein [Defendant Nos. 1(a) and 2] from carrying out any construction within the setback area of 3 metres from the compound wall of Respondent Nos. 1 and 2 herein [original Plaintiffs].
3. By the impugned order, in effect, what the Appellate Court did was to set aside the order dated 23.11.2020 passed by the learned Civil Judge, Junior Division, “C” Court at Panaji [for short “the Trial Court”] under which the Application for temporary injunction filed by Respondent Nos. 1 and 2 herein [original Plaintiffs] was dismissed by the Trial Court.
4. As mentioned earlier, Respondent Nos.1 & 2 herein were Plaintiff Nos. 1 and 2 before the Trial Court. The Petitioners herein were Defendant Nos. 1(a) and 2 before the Trial Court. Respondent Nos.3 and 4 herein were Defendant Nos.3 and 4 before the Trial Court. For the sake of convenience, I shall refer to the parties as they were arrayed before the Trial Court in Regular Civil Suit No. 76/2009/C.
5. Brief facts giving rise to the present controversy are this. The Plaintiffs instituted Regular Civil Suit No. 76/2009/C inter alia seeking a permanent injunction to restrain Defendant Nos. 1(a) and 2 from carrying out any construction activities in the property bearing Survey No. 37/11 of Mercurim, Agassaim Goa (for short “the suit property”). The Plaintiffs and Defendant Nos. 1(a) and 2 are neighbours and the house of the Plaintiffs is situated on the property bearing survey No.37/11-A which is adjoining to the suit property.
6. In brief, it is the case of the Plaintiffs that in the year 2003, Defendant No. 1 (now deceased), constructed two structures along the compound wall of the Plaintiffs. However, at that time it did not affect their proprietary rights. Thereafter, on 13.08.2009, Defendant No. 1 commenced construction activities in the suit property and which according to the Plaintiffs was affecting the proprietary rights of the Plaintiffs. According to the Plaintiffs, Defendant No. 1, through his labourers, began demolishing the structure being used for running a liquor Bar business and started digging a new foundation at about ¾th metres from the northern compound wall of the Plaintiffs' property bearing Survey No. 37/11- A. According to the Plaintiffs, Defendant No. 1 was doing illegal construction without any permission and without keeping proper setbacks. Subsequently, the Plaintiffs impleaded Defendant No. 2 and amended the plaint also contending that the suit construction constitutes an obstruction to the source of light and air/ventilation to the Plaintiffs' house on its northern side and constitutes an invasion of the Plaintiffs' privacy.
7. Be that as it may, after the death of Defendant No. 1, Defendant No. 1(a) was brought on record and Defendant No. 2 filed his written statement contending that the two structures in the suit property were in existence prior to 1961 and that he was carrying on a liquor Bar business in one of the structures. It is the case of Defendant No.2 that the structure where he was carrying on the liquor Bar business required repairs/ renovations, and, therefore, he made an application dated 29.07.2009 to the Panchayat. According to Defendant No. 2, he had to carry out repair works to the said structure to arrest the collapse of the structure. Since the Panchayat failed to communicate its reply, Defendant No. 2, started the work of repairs/renovation.
8. Be that
