Case Note & Summary
The petitioners, original defendant nos. 1(a) and 2 in Regular Civil Suit No.76/2009/C, challenged the judgment and order dated 11.05.2022 passed by the learned District Judge-3, North Goa, at Panaji in Miscellaneous Civil Appeal No.60/2020. By the impugned order, the Appellate Court allowed the appeal preferred by respondent nos. 1 and 2 (original plaintiffs) and restrained the petitioners from carrying out any construction within the setback area of 3 metres from the compound wall of the respondents. The dispute pertained to a construction that allegedly violated the setback requirements and would block light and air to the respondents' property. The High Court, after hearing the parties, dismissed the petition, holding that the Appellate Court had correctly assessed the prima facie case, balance of convenience, and irreparable loss. The court noted that the construction would cause substantial interference with the respondents' right to light and air, and the petitioners could still construct elsewhere on their property. The High Court found no perversity or illegality in the impugned order and upheld the injunction.
Headnote
A) Civil Procedure - Injunction - Setback Area - Right to Light and Air - The Appellate Court granted injunction restraining construction within 3 metres setback from respondent's compound wall, finding that the construction would block light and air to respondent's property. The High Court upheld the order, holding that the balance of convenience was in favour of the respondents and that the petitioners failed to show any irreparable loss. (Paras 2, 10-15)
B) Civil Procedure - Prima Facie Case - Balance of Convenience - The High Court held that the Appellate Court correctly assessed the prima facie case and balance of convenience, as the construction would cause substantial interference with the respondents' right to light and air, and the petitioners could still construct elsewhere on their property. (Paras 12-14)
Issue of Consideration
Whether the Appellate Court was justified in granting an injunction restraining the petitioners from carrying out construction within the setback area of 3 metres from the compound wall of the respondents.
Final Decision
The High Court dismissed the writ petition and upheld the impugned order of the Appellate Court restraining the petitioners from carrying out any construction within the setback area of 3 metres from the compound wall of the respondents.
Law Points
- Injunction
- Setback area
- Right to light and air
- Balance of convenience
- Prima facie case
- Irreparable loss
Case Details
2023 LawText (BOM) (03) 116
WRIT PETITION NO. 276 OF 2022
Mr. J. E. Coelho Pereira, Senior Advocate with Mr. Bernard Fernandes and Mr. V. Braganza, Advocates for the Petitioners; Mr. Pranav Shenvi Kakodkar, Advocate for Respondent No. 2; Mr. John Abreu Lobo, Advocate for Respondent No. 4
Mr. Lawrence Santan Pereira (since deceased through L.R. Mrs. Luizinha Pereira) and Mr. Salvador Pereira alias Salu Pereira
Mr. Assis Piedade Fernandes, Mrs. Rozai Fernandes, The Village Panchayat of St. Lawrence, Fabrica de Igreja de Corlim
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Nature of Litigation
Civil writ petition challenging an appellate court order granting injunction restraining construction within setback area.
Remedy Sought
Petitioners sought to quash the impugned order dated 11.05.2022 passed by the District Judge-3, North Goa, in Miscellaneous Civil Appeal No.60/2020.
Filing Reason
The petitioners were aggrieved by the appellate court's order restraining them from carrying out construction within the setback area of 3 metres from the compound wall of the respondents.
Previous Decisions
The trial court had earlier refused to grant injunction, but the appellate court reversed that decision and granted the injunction.
Issues
Whether the Appellate Court was justified in granting an injunction restraining construction within the setback area.
Whether the balance of convenience and prima facie case favoured the respondents.
Submissions/Arguments
Petitioners argued that the construction was within their property rights and the setback area was not clearly defined.
Respondents argued that the construction would block light and air to their property and violate setback requirements.
Ratio Decidendi
The Appellate Court correctly assessed the prima facie case, balance of convenience, and irreparable loss. The construction would cause substantial interference with the respondents' right to light and air, and the petitioners could still construct elsewhere on their property. Hence, the injunction was justified.
Judgment Excerpts
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].
The High Court held that the Appellate Court had correctly assessed the prima facie case, balance of convenience, and irreparable loss.
Procedural History
The petitioners filed a writ petition in the High Court of Bombay at Goa challenging the order dated 11.05.2022 passed by the District Judge-3, North Goa, in Miscellaneous Civil Appeal No.60/2020, which had allowed the appeal of the respondents and granted an injunction restraining construction within the setback area.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
