(Spl.-H.C.A.S.,C.D.,78-e)

FARAD CONTINUATION SHEET NO.

IN THE HIGH COURT OF BOMBAY AT GOA

APPELLATE SIDE

WRIT PETITION NO. 482 OF 2003

---------------------------------------------------------------------

Office Note, Office Memoranda

of Quorum, appearances, Court’s

Court’s or Judge’s Orders

orders or directions and

Registrar’s orders.

----------------------------------------------------------------------

Shri J. Godinho, advocate for the

petitioners.

Shri S. Karpe, advocate appointed

under Legal Aid Scheme for

respondent no.1.

Shri V. Pangam, advocate appointed

under Legal Aid Scheme for

respondent no.2.

Shri J. A. Lobo, advocate

appointed under Legal Aid Scheme for

respondent no.3 & 4.

CORAM : D. G. KARNIK, J.

DATE : 18th March, 2004

P.C.:

Heard learned counsel for the

petitioners as well as the

respondents. Being an interlocutory

Order, I am not inclined to

interfere in exercise of the

discretionary jurisdiction of this

Court under Article 227 of the

Constitution of India, specially

when the learned District Judge had

held that the respondents/plaintiffs

have an easementary right of

necessity and the access is blocked.

- 2 -

2. The only point that was

urged by the learned counsel for the

petitioners was that a mandatory

injunction for opening the gate

should not have been issued, because

a mandatory order cannot be passed

to restore status quo ante.

According to the learned counsel for

the petitioners, the suit was filed

on 14th May, 1999, while the gate in

question was fixed by the

petitioners on 12th May, 1999, i.e.

two days prior to the filing of the

suit. Learned counsel for the

respondents dispute this and submit

that the gate was fixed on 18th May,

1992, i.e after service of the

summons. As held by the Supreme

Court in the case of Dorab Cawasji

Dorab Cawasji

Dorab Cawasji

Warden

Warden

Warden vs. Coomi Sorab Warden &

vs. Coomi Sorab Warden &

vs. Coomi Sorab Warden &

Ors.

Ors.

Ors., reported in AIR 1990 SC 867,

the Court is entitled to grant a

mandatory injunction and restore

status quo ante, specially when in

contemplation of the suit the

defendants attempted to defeat the

plaintiff’s claim by fixing a gate.

- 3 -

Hence, I find no merit in the

Writ Petition which is hereby

rejected.

D.

G.

KARNIK,

J.

mc.