Case Note & Summary
The case involves two Civil Revision Applications filed by the applicants (original defendants) challenging an order dated 30/04/2019 passed by the Civil Judge, Senior Division, Pernem-Goa in Regular Civil Suit No. 13/2018/A. The suit was filed by the respondents (original plaintiffs) seeking partition and separate possession of suit properties, along with a declaration that certain constructions made by the defendants were illegal and encroachments. The trial court allowed an application under Order 39 Rule 1 and 2 CPC read with Section 151 CPC filed by the plaintiffs, directing the defendants to remove the encroachments from the suit property within a specified period. The applicants contended that the trial court erred in granting a mandatory injunction at an interim stage without a full trial, and that the order was passed without considering the principles governing grant of temporary injunctions. The respondents argued that the constructions were unauthorized and that the trial court had correctly exercised its discretion to preserve the suit property. The High Court examined the scope of Order 39 Rule 1 and 2 CPC and Section 151 CPC, and held that a mandatory injunction can be granted at an interim stage only in exceptional circumstances where a strong prima facie case is made out and the balance of convenience is in favour of the applicant. The court noted that the trial court had recorded findings that the defendants had made encroachments on the suit property, which was common property, and that the plaintiffs had made out a prima facie case. The High Court found no perversity or jurisdictional error in the trial court's order and dismissed both civil revision applications, upholding the trial court's direction to remove encroachments.
Headnote
A) Civil Procedure - Temporary Injunction - Mandatory Injunction - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - Section 151 CPC - The court can grant a mandatory injunction at an interim stage only in exceptional circumstances where a strong prima facie case is made out and the balance of convenience is in favour of the applicant. The court must be satisfied that irreparable injury would be caused if the injunction is not granted. (Paras 10-15) B) Civil Procedure - Inherent Powers - Section 151 CPC - The inherent powers of the court under Section 151 CPC can be invoked to pass orders necessary to prevent abuse of process of court or to secure the ends of justice, including directing removal of encroachments during pendency of suit to preserve the subject matter. (Paras 16-18) C) Partition Suit - Preservation of Property - The court in a partition suit has the power to direct removal of encroachments or unauthorized constructions made by one co-sharer over common property to protect the rights of other co-sharers and to maintain the status quo pending final adjudication. (Paras 19-22)
Issue of Consideration
Whether the trial court was justified in passing a mandatory injunction directing the removal of encroachments from the suit property during the pendency of a partition suit, and whether such an order could be passed under Order 39 Rule 1 and 2 CPC read with Section 151 CPC.
Final Decision
Both Civil Revision Applications are dismissed. The order dated 30/04/2019 passed by the Civil Judge, Senior Division, Pernem-Goa in Regular Civil Suit No. 13/2018/A is upheld. No order as to costs.
Law Points
- Order 39 Rule 1 and 2 CPC
- Section 151 CPC
- Inherent powers of court
- Temporary injunction
- Mandatory injunction
- Removal of encroachment
- Preservation of suit property
- Partition suit
- Prima facie case
- Balance of convenience
- Irreparable injury
