Case Note & Summary
The dispute arose from Regular Civil Suit No. 153/2004/II filed by the appellant, Benedito Souza, against respondent Nos. 1 and 2, Caetano Rosario Estibeiro and Fatima Estibeiro, and respondent No. 3, Panchayat of Macasana, before the Court of 2nd Additional Civil Judge Senior Division at Margao. The appellant, as neighbour of respondents, sought a decree of permanent injunction restraining respondents from carrying out any construction within three metres of the setback area of his property and a mandatory injunction directing demolition of that part of the respondents' house allegedly constructed in violation of the approved licence and plans. The trial court framed issues and answered them affirmatively, holding that illegal construction had been carried out within the setback area and that the appellant was entitled to injunction and mandatory demolition. By judgment and order dated 31 March 2011, the trial court decreed the suit with costs, restraining the respondents from any construction within the setback area and directing demolition of the offending portion, with the Collector to execute the demolition if not complied within ten days. The respondents filed Regular Civil Appeal No. 96/2011. The First Appellate Court, by judgment and decree dated 13 July 2012, reversed the trial court's decree and dismissed the appellant's suit. Aggrieved, the appellant filed Second Appeal No. 158 of 2012 before the High Court of Bombay at Goa. On 13 December 2012 and 5 February 2021, this Court framed four substantial questions of law concerning non-application of mind by the First Appellate Court, the right of a neighbour to mandatory injunction on mere breach of setback, the alleged gross illegality in reversing the decree on delay and laches without a finding on limitation, and the right of an adjoining owner to seek demolition of a structure lacking licence from statutory authority. The appellant's senior counsel contended that the pleadings complied with Order VII Rule 3 CPC, that a plan prepared by an expert was already on record, that the suit was filed within limitation on 27 May 2004, and that the appellant had locus standi as a neighbour. Reliance was placed on Fatima Joao v. Village Panchayat of Merces. The respondents' senior counsel argued that the pleadings were sketchy, there was non-compliance with Order VII Rule 3 CPC, and that no pleadings existed regarding invasion of rights to light, air, privacy or material injury as required by Fatima Joao. The extracted judgment text ends at paragraph 14 after recording submissions; no final analysis, ratio decidendi or operative decision is included.
Headnote
A) Civil Procedure - Pleadings - Order VII Rule 3 Code of Civil Procedure, 1908 - Mandatory Injunction - Compliance with identification of property and structure for demolition - First Appellate Court held that lack of details in plaint and report precluded ordering demolition, while appellant contended that pleadings and evidence clearly demonstrated setback line as straight line from common boundary; substantial question framed whether non-application of mind occurred (Paras 2, 5-8).
B) Civil Law - Injunctions - Sections 38 and 39 of Specific Relief Act, 1963 - Neighbour's right to permanent/mandatory injunction - Question framed whether a neighbour can obtain injunction merely by establishing breach of requisite setbacks; lower courts differed, trial court granted decree, first appellate court reversed (Paras 2, 10, 13).
C) Civil Procedure - Appeals - Reversal of mandatory injunction on delay and laches - Limitation - Question framed whether First Appellate Court erred in reversing decree on grounds of delay without finding bar of limitation; appellant submitted suit filed within limitation on 27 May 2004 after cause of action arose 8 May 2004 (Paras 2, 8, 12).
D) Property Law - Neighbour's right to demolition - Unauthorised construction - Question framed whether adjoining owner can seek demolition of structure without licence from statutory authority; reliance placed on Fatima Joao v. Village Panchayat of Merces, 2000(2) GLT 341 (Paras 2, 9-10, 13).
Issue of Consideration
Four substantial questions of law: (i) Whether impugned orders suffer from non-application of mind by holding that the Respondents' structure could not be ordered to be demolished for lack of details in the plaint and the report, despite pleadings complying with Order VII Rule 3 CPC and evidence showing setback line as a straight line from common boundary; (ii) Whether a neighbour can get relief of permanent/mandatory injunction by merely establishing breach of requisite setbacks under Section 38 and 39 of the Specific Relief Act; (iii) Whether the First Appellate Court committed gross illegality by reversing the decree for mandatory injunction merely on grounds of delay and laches without finding that delay had led to bar of limitation; (iv) Whether an adjoining owner has a right to seek demolition of disputed structure on ground that it has no licence from statutory Authority.
Law Points
- Compliance with Order VII Rule 3 Code of Civil Procedure
- 1908
- Neighbour's right to sue for violation of setback
- Mandatory injunction under Sections 38 and 39 of Specific Relief Act
- 1963
- Delay and laches not barring suit if within limitation
- Adjoining owner's right to seek demolition for unauthorised construction
- Necessity of pleading invasion of rights such as light
- air
- privacy or material injury
Case Details
2021 LawText (BOM) (02) 85
Second Appeal No. 158 of 2012
Mr. Nitin Sardessai, Ms. Gautami Kamat, Mr. R.G. Ramani, Mr. Sahil Sardessai
Benedito Souza also known as Benedito D'souza, son of Andre D'Souza also known as Andre Souza
1. Caetano Rosario Estibeiro, 2. Fatima Estibeiro, 3. Panchayat of Macasana
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Nature of Litigation
Civil suit for permanent and mandatory injunction relating to alleged illegal construction within the setback area by defendants.
Remedy Sought
Plaintiff sought a decree of permanent injunction restraining defendants from carrying out any construction within 3 metres setback area of plaintiff's property and a mandatory injunction directing defendants 1, 2 and 3 to demolish the part of the house constructed in the setback area in violation of approved licence and plans, failing which the Collector should carry out demolition.
Filing Reason
Defendants allegedly constructed a part of their house within the 3-metre setback area of plaintiff's property without proper licence and in breach of approved plans, affecting plaintiff as an adjoining neighbour.
Previous Decisions
Trial Court vide judgment and order dated 31 March 2011 decreed the suit with costs, granting permanent and mandatory injunction. First Appellate Court vide judgment and decree dated 13 July 2012 in Regular Civil Appeal No. 96/2011 reversed the trial court's decree and dismissed the plaintiff's suit.
Issues
Whether the impugned orders suffer from non-application of mind inasmuch as they hold that the Respondents' structure could not be ordered to be demolished for lack of details in the plaint and the report, when the pleadings on record complied with the provisions of Order VII Rule 3 Code of Civil Procedure and the evidence on record clearly demonstrated that the setback line is a straight line from the common boundary, thus evidencing the portion to be demolished?
Whether the appellant who is the neighbour of the respondent can get a relief of permanent/mandatory injunction by merely establishing that there is breach of the requisite setbacks under Section 38 and 39 of the Specific Relief Act?
Whether the Learned Appellate Court committed gross illegality by reversing the Decree for mandatory injunction, as granted by the Learned Trial Court, merely on grounds of delay and laches in the absence of any finding that the delay had led to inviting the bar of limitation?
Whether an adjoining owner has a right to seek demolition of the disputed structure on the ground that it has no licence from the statutory Authority?
Submissions/Arguments
Appellant argued that the pleadings in the plaint were quite clear and since this was not a case of encroachment as such, there was no requirement of attaching a sketch/plan to the plaint in terms of Order VII Rule 3 CPC; in any case, there was more than substantial compliance since a plan prepared by an expert was already included in the list of documents filed along with the plaint.
Appellant submitted that the suit was filed within the prescribed period of limitation; the cause of action first arose on 8 May 2004 and the suit was instituted on 27 May 2004, hence no delay or laches.
Appellant contended that the First Appellate Court was not justified in holding that the Plaintiff lacks locus standi when admittedly the Plaintiff was the neighbour of the Defendants and the allegation was that the Defendants put up a construction in the setback area reserved for benefits of neighbours like the Plaintiff; this reasoning is in direct conflict with Fatima Joao v. Village Panchayat of Merces.
Appellant submitted that an adjoining owner has the right to seek demolition of the disputed structure on the ground that the same is not backed by a licence from statutory authorities like the Panchayat or is in breach of terms and conditions subject to which licence was granted.
Respondents argued that the pleadings in the plaint are sketchy and based thereon no relief was due to the Plaintiff; there is no compliance whatsoever of mandatory provisions of Order VII Rule 3 CPC and therefore the plaint ought to have been rejected at the threshold, or in any case the suit ought to have been dismissed.
Respondents submitted that Fatima Joao lays down that a suit at the instance of a neighbour for violation of municipal plans or rules or bye-laws must result in an invasion of their right to light, air, privacy, or a source of pollution or material injury; since there are no pleadings in the plaint about all these aspects, the First Appellate Court was justified in holding that Plaintiff lacks locus standi.
Judgment Excerpts
This suit stands decreed with costs restraining the defendants and any other persons from carrying out any construction within 3 mtrs., setback area of the said property of the plaintiff and his family and defendants are also directed to demolish the part of the house constructed by the defendants in the setback area in violation of approved licence and plans as shown in the plan of the Engineer Glen Anthony Andrade at Exbt. 68/A-C Colly.
the cause of action for instituting suit first arose on 8th May 2004 and the suit was instituted on 27th May 2004 and therefore, there was no delay or laches.
the First Appellate Court was not justified in holding that the Plaintiff lacks locus standi to institute the suit when admittedly the Plaintiff was the neighbour of the Defendants and the allegation was that the Defendants put up a construction in the setback area reserved for benefits of the neighbours like the Plaintiff.
Procedural History
Regular Civil Suit No. 153/2004/II was instituted on 27 May 2004 in the Court of 2nd Additional Civil Judge Senior Division at Margao. Trial Court framed issues and by judgment and order dated 31 March 2011 decreed the suit with costs, granting permanent and mandatory injunction. Defendants filed Regular Civil Appeal No. 96/2011. First Appellate Court vide judgment and decree dated 13 July 2012 reversed the trial court's decree and dismissed the plaintiff's suit. The appellant filed Second Appeal No. 158 of 2012. By orders dated 13 December 2012 and 5 February 2021, the High Court framed substantial questions of law. The judgment text provided ends after recording submissions and does not include final determination.
Acts & Sections
- Code of Civil Procedure, 1908: Order VII Rule 3
- Specific Relief Act, 1963: Sections 38, 39
