Case Note & Summary
The petitioner, Radhika Property Developers Pvt. Ltd., filed a writ petition under Article 227 of the Constitution of India challenging the judgment and order dated 07.01.2010 passed by the learned Principal District Judge, Thane in Misc. Civil Appeal No.66 of 2009. The appellate court had allowed the appeal and granted an ad-interim injunction restraining the petitioner from proceeding with construction on the remaining portion of the suit property (CTS Nos. 57A and 85B). The dispute arose from a development agreement dated 02.02.1988 between the petitioner and respondent no.5 (Cawasji Beharamji Divecha Trust) for development of a larger property. The agreement was challenged by respondent no.3 (Thane Parsi Zoroastrian Anjuman) in Writ Petition No.1041/1989, which was settled by consent terms on 30.04.1991. Under the consent terms, the petitioner agreed to construct a building of 33,000 sq.ft. for the Zoroastrian community on the suit property. The plan was approved in 1992, and separate agreements were entered into with community members for sale of flats. The building was named 'Ahuna Vairya' and a cooperative society (respondent no.1) was formed. The petitioner completed construction of the first building and handed over possession. Subsequently, the petitioner sought to develop the remaining portion of the suit property, which led to the filing of Regular Civil Suit No.733/2008 by respondent no.1 seeking injunction. The trial court rejected the injunction application (Exh. 5) on 25.03.2009. Respondent no.1 appealed, and the appellate court allowed the appeal and granted the ad-interim injunction. The petitioner challenged this order. The High Court held that the appellate court had exceeded its jurisdiction by granting the injunction without properly considering the prima facie case and balance of convenience. The court noted that the consent terms did not prohibit the petitioner from developing the remaining portion, and the balance of convenience was in favor of the petitioner. The impugned order was set aside, and the trial court's order rejecting the injunction was restored.
Headnote
A) Civil Procedure - Ad-interim Injunction - Appellate Court's Jurisdiction - The appellate court, while setting aside the trial court's order rejecting injunction, must consider prima facie case and balance of convenience - The impugned order granting blanket injunction without such consideration was held to be unsustainable (Paras 5-10). B) Property Law - Consent Terms - Binding Effect - Consent terms recorded in earlier writ petition are binding on parties and create obligations - The developer's obligation to construct for the community does not preclude development of remaining portion (Paras 3-4). C) Constitutional Law - Article 227 - Supervisory Jurisdiction - High Court can interfere with orders passed without jurisdiction or with material irregularity - The appellate court's order was set aside as it failed to apply correct legal principles (Paras 1, 10).
Issue of Consideration
Whether the appellate court was justified in granting an ad-interim injunction restraining the petitioner from constructing on the suit property without properly considering the balance of convenience and prima facie case.
Final Decision
The High Court allowed the writ petition, set aside the impugned judgment and order dated 07.01.2010 passed by the learned Principal District Judge, Thane in Misc. Civil Appeal No.66 of 2009, and restored the order dated 25.03.2009 passed by the Joint Civil Judge, S.D., Thane rejecting Exh. 5 in Regular Civil Suit No.733/2008. Rule made absolute. No order as to costs.
Law Points
- Article 227 of the Constitution of India
- jurisdiction of appellate court in granting ad-interim injunction
- balance of convenience
- prima facie case
- specific performance of consent terms
