Case Note & Summary
The matter pertained to a second appeal before the High Court of Bombay at Goa arising from a suit for mandatory and permanent injunction regarding an encroachment dispute. The original plaintiff claimed that the defendant had illegally constructed two rooms towards the south and west of a barrack under Chalta No.13 of P.T. Sheet No.130, and had also opened a pit for a septic tank on property under Chalta No.139. The plaintiff sought demolition of the two rooms/structures and restoration of possession, along with permanent injunction. The original defendant, since deceased, was represented by his legal heirs. In Regular Civil Suit No.59/2003/C, the Trial Court partly decreed the suit on 12.11.2008: it granted a permanent injunction restraining the defendant from developmental work or interference except in Chalta No.13, but declined the relief of mandatory injunction for demolition, finding that the plaintiff had not adequately proved the identity and extent of encroachment sufficient to order demolition. Both parties appealed. The first appellate court dismissed the defendant's Regular Civil Appeal No.2/2009 and allowed the plaintiff's Regular Civil Appeal No.154/2008 by judgment dated 29.08.2009, thereby granting mandatory injunction for demolishing the two rooms/structures. Aggrieved, the defendants instituted Second Appeal No.84 of 2010. The second appeal was admitted on 14.02.2011 on two substantial questions of law: whether the appellate court erred in granting mandatory injunction despite non-compliance with Order VII Rule 7 CPC, and whether it erred in placing reliance on a plan marked 'X' for identification without proof in accordance with law. The defendants argued that the pleadings and evidence were vague and ambiguous regarding the identity of the two structures, that the sketch was not proved under the Evidence Act, 1872, and that the trial court had correctly declined to exhibit the sketch as evidence for want of adequate proof. They also contended that the evidence suggested the structures formed part of Chalta No.13, where the defendants were tenants in possession. Reliance was placed on several precedents. The plaintiff countered that the pleadings were clear and not effectively denied, that a sketch consistent with Order VII Rule 3 CPC was attached and duly proved, and that there was no breach of Order VII Rule 7 or Rule 3 CPC. The matter was heard on 1 December 2022. The available judgment excerpt records the submissions and substantial questions of law but does not include the final operative order or reasoning of the High Court.
Headnote
A) Civil Procedure - Pleadings and Specific Relief - Compliance with Order VII Rule 7 CPC - Code of Civil Procedure, 1908 (CPC), Order VII Rule 7 - The second appeal was admitted on the substantial question whether the appellate court erred in law in granting mandatory injunction although the respondent had not complied with Order VII Rule 7 CPC. The defendants contended that no mandatory injunction could be issued in the absence of compliance with statutory provisions and given the failure to identify the two rooms/structures. The plaintiff argued that there was clarity in the pleadings and compliance with Order VII Rule 7 CPC (Paras 9-13). B) Civil Procedure - Identification of Immovable Property - Requirement of Description Sufficient to Identify - Code of Civil Procedure, 1908 (CPC), Order VII Rule 3 - The defendants alleged that identification of the two structures in the plaint was vague and unspecific, and that the affidavit in evidence further compounded the confusion as to the identity of the two rooms/structures. The plaintiff asserted that a sketch consistent with Order VII Rule 3 CPC was attached to the plaint and duly proved. The question raised was whether the pleadings and evidence sufficiently identified the structures subject to mandatory injunction (Paras 3-5, 10-13). C) Evidence - Proof of Documents and Plans - Admissibility of Site Plan Marked 'X' for Identification - Indian Evidence Act, 1872; Code of Civil Procedure, 1908 (CPC), Order XIII Rule 4 - The first appellate court allegedly placed reliance upon a plan marked 'X' for identification without being proved in accordance with law. The defendants submitted that the plan was not exhibited as required under Order XIII Rule 4 CPC read with paras 523 and 524 of the Civil Manual. The plaintiff countered that the plan was duly proved under the Evidence Act. The core issue was whether an unexhibited plan could serve as the basis for granting mandatory injunction (Paras 10-13).
Issue of Consideration
Whether the first appellate court erred in law in granting mandatory injunction despite alleged non-compliance with Order VII Rule 7 CPC; whether the first appellate court erred in placing reliance upon a plan marked 'X' for identification without being proved in accordance with law
Law Points
- Mandatory injunction requires specific pleading and identification of property under Order VII Rule 7 and Rule 3 CPC
- site plan must be proved in accordance with Indian Evidence Act
- 1872 and Order XIII Rule 4 CPC
- reliance on a plan marked only for identification without proof is impermissible
- vague pleadings and unproved documents cannot support mandatory injunction
