Case Note & Summary
The petitioners, defendants in a civil suit, were injuncted from constructing a house by the trial court on 13.9.2011. The appellate court confirmed the injunction on 21.7.2012. Pending the writ petition, the petitioners obtained a declaration of their mundkarial rights, purchased the property, and secured all necessary construction permissions. The High Court, hearing the writ petition, observed that the lower courts did not have the benefit of these subsequent developments. It held that the interests of justice require the matter to be remanded to the trial court to consider the new material. The impugned order dated 21.7.2012 was set aside, and the interlocutory application for injunction was restored. The court directed that until the trial court decides the application, the petitioners shall not undertake any construction. The respondents' counsel submitted that the declaration and sale deed were challenged in a separate civil suit.
Headnote
A) Civil Procedure - Interim Injunction - Remand - Change in Circumstances - Code of Civil Procedure, 1908, Order 39 Rules 1 and 2 - The petitioners secured a declaration of mundkarial rights, purchased the property, and obtained civic permissions after the injunction was granted. The High Court held that the trial court should examine these new materials and set aside the appellate order, remanding the matter for fresh consideration of the injunction application. (Paras 5-7)
B) Property Law - Mundkarial Rights - Lis Pendens - Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 - The petitioners obtained a declaration of mundkarial rights and purchased the property pending litigation. The respondents challenged these actions in a separate suit. The High Court noted these developments but left the merits to the trial court. (Paras 3, 9)
Issue of Consideration
Whether the trial court's injunction order should be reconsidered in light of subsequent events including declaration of mundkarial rights, purchase of property, and obtaining of construction permissions.
Final Decision
The impugned order dated 21.7.2012 is set aside. The matter is remanded to the trial court, and the interlocutory application for injunction is restored. The petitioners shall not undertake any construction until the trial court decides the application.
Law Points
- Interim injunction
- remand
- lis pendens
- mundkarial rights
- change in circumstances
Case Details
2020 LawText (BOM) (02) 112
WRIT PETITION NO. 716 OF 2012
Joaquim Godinho for the petitioners, Ramachandra Gajanan Ramani for respondent nos.1 & 2, Nagvekar for respondent no.4
Mr. Lawrence Santan Pereira (since deceased) through legal representatives Mrs. Luizinha Pereira and Salvador Pereira
Assis Piedade Fernandes, Rozal Fernandes, The Village Panchayat of St. Lawrence, Fabrica de Igreja de Corlim
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Nature of Litigation
Civil suit seeking injunction against construction by neighbours.
Remedy Sought
Petitioners seek leave to proceed with construction and setting aside of injunction order.
Filing Reason
Petitioners were injuncted from constructing a house; they later obtained declaration of mundkarial rights, purchased property, and obtained permissions.
Previous Decisions
Trial court granted injunction on 13.9.2011; appellate court confirmed on 21.7.2012.
Issues
Whether the subsequent events (declaration of mundkarial rights, purchase, permissions) warrant modification of the injunction.
Submissions/Arguments
Petitioners: They have secured declaration of mundkarial rights, purchased property, and obtained all necessary permissions; therefore, injunction should be lifted.
Respondents 1&2: The declaration and sale deed were obtained without impleading them and are challenged in a separate suit.
Ratio Decidendi
When there is a change in circumstances after an interim order, the court should consider the new material and may remand the matter for fresh consideration.
Judgment Excerpts
When the trial Court passed the order injuncting the petitioners from raising the structures and later when the First Appellate Court confirmed that order, neither had the benefit of examining any orders in the petitioners' favour.
Under these circumstances, it serves the interest of justice if the matter is remanded to the trial Court, before which the petitioners as the defendants may place on record all the documents they have secured lis pendens and seek the appropriate relief.
Procedural History
Respondents filed Regular Civil Suit No.76/2009/C for injunction. Trial court granted injunction on 13.9.2011. Petitioners appealed in Misc. Civil Appeal No.113/2011, which was dismissed on 21.7.2012. Petitioners then filed this writ petition. Pending writ, petitioners obtained declaration of mundkarial rights, purchased property, and obtained permissions. They filed a miscellaneous application for leave to construct. The High Court heard the matter and passed the present order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 39 Rules 1 and 2
- Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975:
