Case Note & Summary
The petitioner, Shivaji Bhau Kondhare, filed a suit for permanent injunction against the respondent, Rohidas Tanaji Kondhare, alleging encroachment on his property (Grampanchayat No.2089) in Ambegaon Budruk village. The trial court granted a temporary injunction restraining the respondent from interfering with the petitioner's possession. The respondent appealed, and the First Appellate Court (District Judge, Pune) allowed the appeal, setting aside the injunction. The petitioner challenged this order in the High Court. The High Court found that the First Appellate Court had failed to properly consider the Village Form No.8 documents, which indicated the location of the properties. The appellate court's finding that there was no prima facie evidence of adjacency was not supported by the record. The High Court held that the impugned order was perverse and set it aside, remanding the matter to the First Appellate Court for fresh consideration of the appeal on merits, without expressing any opinion on the merits of the case.
Headnote
A) Civil Procedure - Temporary Injunction - Prima Facie Case - The appellate court must consider all material evidence, including Village Form No.8, before reversing a trial court's injunction order - Held that the First Appellate Court failed to properly appreciate the documentary evidence and its finding that the plaintiff's property was not adjacent to the defendant's property was not supported by the record (Paras 6-7).
B) Property Law - Documentary Evidence - Village Form No.8 - Village Form No.8 is a relevant document to establish possession and location of property - The appellate court's conclusion that the plaintiff's property was not adjacent to the defendant's property was contrary to the contents of the Village Form No.8 - Held that the impugned order is set aside and the matter remanded for fresh consideration (Paras 6-7).
Issue of Consideration
Whether the First Appellate Court was justified in setting aside the trial court's order granting temporary injunction without properly considering the documentary evidence, particularly Village Form No.8, and whether the impugned order suffers from perversity.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 21-10-2011 passed by the District Judge, Pune, and remanded the matter to the First Appellate Court for fresh consideration of Misc Civil Appeal No.227 of 2011 on its own merits, in accordance with law. The parties were directed to appear before the First Appellate Court on 16-1-2012.
Law Points
- Temporary injunction
- prima facie case
- balance of convenience
- irreparable loss
- appellate court's duty to consider material evidence
- Village Form No.8 as documentary evidence
Case Details
2011 LawText (BOM) (12) 42
Writ Petition No.9790 of 2011
Mr. N.P. Mule for the Petitioner, Ms Jayashri Avhad for the Respondent
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Nature of Litigation
Civil writ petition challenging the order of the First Appellate Court setting aside a temporary injunction granted by the trial court in a suit for permanent injunction.
Remedy Sought
The petitioner sought to quash the order dated 21-10-2011 passed by the Learned District Judge, Pune, and restore the trial court's order granting temporary injunction.
Filing Reason
The petitioner claimed that the respondent was encroaching upon his property (Grampanchayat No.2089) and the First Appellate Court erroneously set aside the trial court's injunction order without properly considering the documentary evidence.
Previous Decisions
The trial court (Regular Civil Suit No.788 of 2011) granted temporary injunction on 17-2-2011. The First Appellate Court (Misc Civil Appeal No.227 of 2011) allowed the appeal and set aside the injunction on 21-10-2011.
Issues
Whether the First Appellate Court erred in setting aside the trial court's temporary injunction order without properly considering the Village Form No.8 documents.
Whether the impugned order suffers from perversity and warrants interference under Article 227 of the Constitution.
Submissions/Arguments
The petitioner argued that the First Appellate Court failed to appreciate the Village Form No.8 documents which showed the adjacency of the properties and that the respondent was encroaching.
The respondent supported the appellate order, contending that the petitioner had not placed sufficient evidence to establish a prima facie case.
Ratio Decidendi
The First Appellate Court's finding that there was no prima facie evidence of adjacency was not supported by the record, as the Village Form No.8 documents indicated the location of the properties. The appellate court failed to consider material evidence, rendering the order perverse. Hence, the matter was remanded for fresh consideration.
Judgment Excerpts
A reading of the Order passed by the First Appellate Court discloses that the First Appellate Court recorded a finding that there is no prima facie evidence to support the Plaintiff’s contention that his property No.2089 is adjacent to the Property No.1320 of the Defendant on the south side and he is making construction by encroaching upon the property No.2089.
In so far as, the Village Form No.8 of the Defendant is concerned, it exfacie discloses the name of the occupant as Kondhare Rohidas Tanaji (Padwal Vatsalabai Baban).
Procedural History
The petitioner filed Regular Civil Suit No.788 of 2011 for permanent injunction. The trial court granted temporary injunction on 17-2-2011. The respondent appealed (Misc Civil Appeal No.227 of 2011), which was allowed by the District Judge, Pune on 21-10-2011, setting aside the injunction. The petitioner then filed the present writ petition under Article 227 of the Constitution.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 39 Rules 1 and 2
