By the application dated 15.11.2010, the petitioners
have only sought the permission of the trial Court to install the
door-frame in the door way and also for demolition of a part of
the wall for the purpose of erecting laterite stone pillars on
both sides. It was stated by petitioners that after a decree of
partition, a separating wall passing through the middle of the
existing front door-way came to be constructed as a result of
which existing door was required to be removed as the
door-space got reduced. It was also stated that new door was
required to be fitted and before it could be done, temporary
injunction order came to be passed.
Now, if we consider this position, about which there
is no dispute, the hardship being caused to petitioners due to
their inability to fix new door-frame with doors due to
operation of injunction is obvious. No one can live in a house
these days without door shutters which can be opened and
closed, as per convenience. But, in the instant case, there is
no door in existence, and absence of it would cause
inconvenience to, as well as create sense of insecurity among,
inhabitants of the house. This is nothing but hardship which
can be perceived even from the statement of factual position,
without there being averment relating to causing of hardship.
Hardship is more of a matter to be ascertained from the facts
established on record and less of an averment. Hardship is
one of the grounds of variation of temporary injunction order
as contained in the proviso to Rule 4 Order 39 of C.P.C. and
since it has been over-looked by both Courts below, the
impugned orders, on this count itself can be termed as
perverse and arbitrary.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 519 OF 2013
Mrs. Shrimati Shrirang Naik
Versus
Shri Vijaykant Sonu Naik
CORAM : S.B. SHUKRE, J.
DATE : 15 th APRIL, 2014
Citation;2014 (6)ALLMR 110
2. The only point which arises for my consideration is:
Whether the impugned orders passed by
both the Courts below rejecting the
application of the petitioners for seeking
permission of the Court to suitably modify
the order of the temporary injunction dated
14.05.2009, passed in Regular Civil Suit
No. 52/2007 are un-reasonable and
arbitrary ?
3. In the suit that was filed by respondents no. 1 to 5
against the remaining respondents and present petitioners
seeking declaration that decree dated 16.12.2006 passed in
Special Civil Suit No. 128/2001 was null and void and also
seeking perpetual injunction against remaining respondents
and present petitioners, who are defendants 2 to 14 in the suit
before the trial Court, an application seeking temporary
injunction during pendency of the suit was filed by
respondents no. 1 to 5. The application, by an order passed
on 14.05.2008, was granted by the trial Court. This order of
temporary injunction was accepted by the petitioners and also
by the remaining respondents.
4. Thereafter, the petitioners felt that because of the
existence of the order of the temporary injunction in the
matter, they were not able to make convenient use of the suit
house as it was their contention that the separating wall
passing through the middle of the house and also the doorspace
was without any door. Therefore, by an application filed
on 15.11.2010, the petitioners sought permission of the Court
to install the door frame and also demolish part of the wall for
erecting laterite stone pillars on both sides.
5. The application so filed was opposed by the original
plaintiffs i.e. respondents no. 1 to 5 stating that petitioners
(defendants no. 2 to 14) could not be given permission to
install the door-frame at that stage of the suit. It was also
submitted by the plaintiffs that these defendants had carried
out work in violation of order of injunction and plaintiffs
intended to file appropriate application in that regard.
6. After hearing both the sides, the learned Civil Judge
by her order passed on 18.03.2011, dismissed the application
by imposing costs of Rs. 300/-.
7. This order was challenged before the first appellate
Court, which also dismissed the appeal thereby confirming the
order passed by the trial Court. The order of the dismissal of
the appeal was passed by the District Judge-1 on 10.06.2013.
Therefore, the petitioners, by this petition have challenged
both these orders passed by the Courts below.
8. The learned Counsel for the petitioners submits that
both the Courts below have not taken into account the factor
of hardship, as provided under Rule 4 Order 30 of C.P.C., that
the order of temporary injunction was causing to the
petitioners and both the Courts have only considered the other
condition of the proviso that there was no change in the
circumstances, which made orders passed by the Courts as
arbitrary and un-reasonable.
9. The learned Counsel for respondents no. 1 to 5 who
are mainly contesting parties to the petition has submitted
that the orders passed by the Courts below are perfectly legal
and justifiable. The circumstances which were in existence at
the time of the original order of temporary injunction passed in
the year 2007, also, existed at the time of the application
seeking modification of temporary injunction, which was filed
in the year 2011 by the petitioners. He submits that if there
was any hardship as submitted by the petitioners in making
use of the suit house, the hardship existed also in the year
2008 when temporary injunction order was passed and since it
took about three years for the petitioners to seek modification
of the temporary injunction order on the ground of hardship, it
can be considered that the ground so taken by the petitioners
is false. He also submits that as a matter of fact there was not
even a whisper in the application of the petitioners about the
ground of hardship. He also submits that there are concurrent
findings recorded by both the Courts below and these orders
being not perverse, the petitioners cannot invoke the writ
jurisdiction of this Court under Article 227 of the Constitution
of India.
10. To appreciate rival arguments, it would be
necessary to consider the original order of the temporary
injunction passed by the trial Court on 14.05.2008. The
operative part of the order appears in paragraph 13 and it
reads thus:
"13. In the circumstances and for the
reasons discussed above this application
W.P No.519 of 2013
10
stands granted with costs restraining the
defendants from alienating or transferring
the suit plot or creating the third party
rights therein and also from demolishing or
structurally altering the residential house in
the suit plot no. 84 until the disposal of this
suit."
11. This order was originally passed by the trial Court
and has been confirmed as no challenge has been made to it
by the petitioners or by the remaining respondents. It is clear
from this order that the trial Court has prohibited till disposal
of the suit, the following things:
(i) alienating or transferring the suit plot,
(ii) creating third party rights in the suit plot,
(iii) demolition of the residential house in suit plot
no. 84 and
(iv) prohibiting structural alterations in the house in
suit plot no. 84
12. By the application dated 15.11.2010, the petitioners
have only sought the permission of the trial Court to install the
door-frame in the door way and also for demolition of a part of
the wall for the purpose of erecting laterite stone pillars on
both sides. It was stated by petitioners that after a decree of
partition, a separating wall passing through the middle of the
existing front door-way came to be constructed as a result of
which existing door was required to be removed as the
door-space got reduced. It was also stated that new door was
required to be fitted and before it could be done, temporary
injunction order came to be passed.
13. Now, if we consider this position, about which there
is no dispute, the hardship being caused to petitioners due to
their inability to fix new door-frame with doors due to
operation of injunction is obvious. No one can live in a house
these days without door shutters which can be opened and
closed, as per convenience. But, in the instant case, there is
no door in existence, and absence of it would cause
inconvenience to, as well as create sense of insecurity among,
inhabitants of the house. This is nothing but hardship which
can be perceived even from the statement of factual position,
without there being averment relating to causing of hardship.
Hardship is more of a matter to be ascertained from the facts
established on record and less of an averment. Hardship is
one of the grounds of variation of temporary injunction order
as contained in the proviso to Rule 4 Order 39 of C.P.C. and
since it has been over-looked by both Courts below, the
impugned orders, on this count itself can be termed as
perverse and arbitrary.
14. The learned Counsel for the petitioners has argued
that the aspect of hardship, if any, existed since the year
2008, and if it did not cause any inconvenience or hardship,
how suddenly after three years could it cause so. Therefore,
he submits, the application filed by the petitioners lacked
bona-fides. Only because it was not raised earlier, I must say,
it could not be said, the application was filed mala-fide.
Sometimes, a person may think he can put up with
inconvenience and hardship resulting from injunction order for
sometime in the hope that injunction itself will be vacated by
quick disposal of suit and when he finds that his hope cannot
turn into a reality within a reasonable time, he may thereafter
choose to avail of remedy available to him to mitigate the
situation. Therefore, I see no merit in the said argument.
15. As regards the argument by the learned Counsel for
the respondent that putting up of the door-frame and
demolishing some part of the wall, may result in some
structural change to the residential house, I am of the view
that by no stretch of imagination or by any logic, such work
can be seen to bring about a structural change. Installation of
door-frame in an existing door-space and demolishing some
portion of the wall to create appropriate space for fixing the
frame are not a structural changes. Creation of a new
door-space might be a structural change, in some cases,
depending upon fact situation. In any case, admittedly that is
not the case here.
16. In these circumstances, I am of the view that by
allowing any alterations in the suit house as sought in the
application filed on 15.11.2010 neither any structural change
to the residential house nor any prejudice to the plaintiffs
would be caused, rather prima-facie, it would lead to removing
of hardship presently being faced by the petitioners. The
alteration as sought for by them is perfectly within the scope
of the proviso to Rule 4 Order 39 of C.P.C. and therefore, the
application ought to have been allowed by the Courts below.
In these circumstances, the order passed by both the Courts
below are found to be unreasonable and arbitrary. They need
to be quashed and set aside. The point is answered
accordingly.
17. The writ petition is allowed and consequently, the
application filed by the petitioners dated 15.11.2010 also
stands allowed in terms of its prayer clause.
18. Rule is made absolute in these terms. Parties to
bear their own costs.
S. B. SHUKRE, J.
Print Page
have only sought the permission of the trial Court to install the
door-frame in the door way and also for demolition of a part of
the wall for the purpose of erecting laterite stone pillars on
both sides. It was stated by petitioners that after a decree of
partition, a separating wall passing through the middle of the
existing front door-way came to be constructed as a result of
which existing door was required to be removed as the
door-space got reduced. It was also stated that new door was
required to be fitted and before it could be done, temporary
injunction order came to be passed.
Now, if we consider this position, about which there
is no dispute, the hardship being caused to petitioners due to
their inability to fix new door-frame with doors due to
operation of injunction is obvious. No one can live in a house
these days without door shutters which can be opened and
closed, as per convenience. But, in the instant case, there is
no door in existence, and absence of it would cause
inconvenience to, as well as create sense of insecurity among,
inhabitants of the house. This is nothing but hardship which
can be perceived even from the statement of factual position,
without there being averment relating to causing of hardship.
Hardship is more of a matter to be ascertained from the facts
established on record and less of an averment. Hardship is
one of the grounds of variation of temporary injunction order
as contained in the proviso to Rule 4 Order 39 of C.P.C. and
since it has been over-looked by both Courts below, the
impugned orders, on this count itself can be termed as
perverse and arbitrary.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 519 OF 2013
Mrs. Shrimati Shrirang Naik
Versus
Shri Vijaykant Sonu Naik
CORAM : S.B. SHUKRE, J.
DATE : 15 th APRIL, 2014
Citation;2014 (6)ALLMR 110
2. The only point which arises for my consideration is:
Whether the impugned orders passed by
both the Courts below rejecting the
application of the petitioners for seeking
permission of the Court to suitably modify
the order of the temporary injunction dated
14.05.2009, passed in Regular Civil Suit
No. 52/2007 are un-reasonable and
arbitrary ?
3. In the suit that was filed by respondents no. 1 to 5
against the remaining respondents and present petitioners
seeking declaration that decree dated 16.12.2006 passed in
Special Civil Suit No. 128/2001 was null and void and also
seeking perpetual injunction against remaining respondents
and present petitioners, who are defendants 2 to 14 in the suit
before the trial Court, an application seeking temporary
injunction during pendency of the suit was filed by
respondents no. 1 to 5. The application, by an order passed
on 14.05.2008, was granted by the trial Court. This order of
temporary injunction was accepted by the petitioners and also
by the remaining respondents.
4. Thereafter, the petitioners felt that because of the
existence of the order of the temporary injunction in the
matter, they were not able to make convenient use of the suit
house as it was their contention that the separating wall
passing through the middle of the house and also the doorspace
was without any door. Therefore, by an application filed
on 15.11.2010, the petitioners sought permission of the Court
to install the door frame and also demolish part of the wall for
erecting laterite stone pillars on both sides.
5. The application so filed was opposed by the original
plaintiffs i.e. respondents no. 1 to 5 stating that petitioners
(defendants no. 2 to 14) could not be given permission to
install the door-frame at that stage of the suit. It was also
submitted by the plaintiffs that these defendants had carried
out work in violation of order of injunction and plaintiffs
intended to file appropriate application in that regard.
6. After hearing both the sides, the learned Civil Judge
by her order passed on 18.03.2011, dismissed the application
by imposing costs of Rs. 300/-.
7. This order was challenged before the first appellate
Court, which also dismissed the appeal thereby confirming the
order passed by the trial Court. The order of the dismissal of
the appeal was passed by the District Judge-1 on 10.06.2013.
Therefore, the petitioners, by this petition have challenged
both these orders passed by the Courts below.
8. The learned Counsel for the petitioners submits that
both the Courts below have not taken into account the factor
of hardship, as provided under Rule 4 Order 30 of C.P.C., that
the order of temporary injunction was causing to the
petitioners and both the Courts have only considered the other
condition of the proviso that there was no change in the
circumstances, which made orders passed by the Courts as
arbitrary and un-reasonable.
9. The learned Counsel for respondents no. 1 to 5 who
are mainly contesting parties to the petition has submitted
that the orders passed by the Courts below are perfectly legal
and justifiable. The circumstances which were in existence at
the time of the original order of temporary injunction passed in
the year 2007, also, existed at the time of the application
seeking modification of temporary injunction, which was filed
in the year 2011 by the petitioners. He submits that if there
was any hardship as submitted by the petitioners in making
use of the suit house, the hardship existed also in the year
2008 when temporary injunction order was passed and since it
took about three years for the petitioners to seek modification
of the temporary injunction order on the ground of hardship, it
can be considered that the ground so taken by the petitioners
is false. He also submits that as a matter of fact there was not
even a whisper in the application of the petitioners about the
ground of hardship. He also submits that there are concurrent
findings recorded by both the Courts below and these orders
being not perverse, the petitioners cannot invoke the writ
jurisdiction of this Court under Article 227 of the Constitution
of India.
10. To appreciate rival arguments, it would be
necessary to consider the original order of the temporary
injunction passed by the trial Court on 14.05.2008. The
operative part of the order appears in paragraph 13 and it
reads thus:
"13. In the circumstances and for the
reasons discussed above this application
W.P No.519 of 2013
10
stands granted with costs restraining the
defendants from alienating or transferring
the suit plot or creating the third party
rights therein and also from demolishing or
structurally altering the residential house in
the suit plot no. 84 until the disposal of this
suit."
11. This order was originally passed by the trial Court
and has been confirmed as no challenge has been made to it
by the petitioners or by the remaining respondents. It is clear
from this order that the trial Court has prohibited till disposal
of the suit, the following things:
(i) alienating or transferring the suit plot,
(ii) creating third party rights in the suit plot,
(iii) demolition of the residential house in suit plot
no. 84 and
(iv) prohibiting structural alterations in the house in
suit plot no. 84
12. By the application dated 15.11.2010, the petitioners
have only sought the permission of the trial Court to install the
door-frame in the door way and also for demolition of a part of
the wall for the purpose of erecting laterite stone pillars on
both sides. It was stated by petitioners that after a decree of
partition, a separating wall passing through the middle of the
existing front door-way came to be constructed as a result of
which existing door was required to be removed as the
door-space got reduced. It was also stated that new door was
required to be fitted and before it could be done, temporary
injunction order came to be passed.
13. Now, if we consider this position, about which there
is no dispute, the hardship being caused to petitioners due to
their inability to fix new door-frame with doors due to
operation of injunction is obvious. No one can live in a house
these days without door shutters which can be opened and
closed, as per convenience. But, in the instant case, there is
no door in existence, and absence of it would cause
inconvenience to, as well as create sense of insecurity among,
inhabitants of the house. This is nothing but hardship which
can be perceived even from the statement of factual position,
without there being averment relating to causing of hardship.
Hardship is more of a matter to be ascertained from the facts
established on record and less of an averment. Hardship is
one of the grounds of variation of temporary injunction order
as contained in the proviso to Rule 4 Order 39 of C.P.C. and
since it has been over-looked by both Courts below, the
impugned orders, on this count itself can be termed as
perverse and arbitrary.
14. The learned Counsel for the petitioners has argued
that the aspect of hardship, if any, existed since the year
2008, and if it did not cause any inconvenience or hardship,
how suddenly after three years could it cause so. Therefore,
he submits, the application filed by the petitioners lacked
bona-fides. Only because it was not raised earlier, I must say,
it could not be said, the application was filed mala-fide.
Sometimes, a person may think he can put up with
inconvenience and hardship resulting from injunction order for
sometime in the hope that injunction itself will be vacated by
quick disposal of suit and when he finds that his hope cannot
turn into a reality within a reasonable time, he may thereafter
choose to avail of remedy available to him to mitigate the
situation. Therefore, I see no merit in the said argument.
15. As regards the argument by the learned Counsel for
the respondent that putting up of the door-frame and
demolishing some part of the wall, may result in some
structural change to the residential house, I am of the view
that by no stretch of imagination or by any logic, such work
can be seen to bring about a structural change. Installation of
door-frame in an existing door-space and demolishing some
portion of the wall to create appropriate space for fixing the
frame are not a structural changes. Creation of a new
door-space might be a structural change, in some cases,
depending upon fact situation. In any case, admittedly that is
not the case here.
16. In these circumstances, I am of the view that by
allowing any alterations in the suit house as sought in the
application filed on 15.11.2010 neither any structural change
to the residential house nor any prejudice to the plaintiffs
would be caused, rather prima-facie, it would lead to removing
of hardship presently being faced by the petitioners. The
alteration as sought for by them is perfectly within the scope
of the proviso to Rule 4 Order 39 of C.P.C. and therefore, the
application ought to have been allowed by the Courts below.
In these circumstances, the order passed by both the Courts
below are found to be unreasonable and arbitrary. They need
to be quashed and set aside. The point is answered
accordingly.
17. The writ petition is allowed and consequently, the
application filed by the petitioners dated 15.11.2010 also
stands allowed in terms of its prayer clause.
18. Rule is made absolute in these terms. Parties to
bear their own costs.
S. B. SHUKRE, J.
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