Case Note & Summary
The petitioners, Mrs. Jennifer Mascarenhas and Mr. Januario Mascarenhas, filed a writ petition in the High Court of Bombay at Goa challenging an order dated 30.01.2013 passed by the Adhoc District Judge, North Goa, in Misc. Civil Appeal No. 116 of 2012. The background of the case is that the respondent no. 1, Mr. Jose Antonio Domnic Dias, had filed Regular Civil Suit No. 161 of 2011 in the Court of the Civil Judge, Junior Division, Panaji, against the petitioners and respondent no. 2 (Village Panchayat St. Cruz) seeking a permanent and mandatory injunction and other consequential reliefs. Along with the suit, the respondent no. 1 filed an application for temporary injunction to restrain the petitioners from doing any construction activity in the suit property or changing its nature. The petitioners filed a reply and written statement, and also filed a counter claim. The learned Civil Judge, by an order dated 31.10.2012, dismissed the application for temporary injunction. Aggrieved by this order, the respondent no. 1 filed an appeal before the Lower Appellate Court, which allowed the appeal on 19.11.2012, quashing and setting aside the Trial Court's order. The petitioners then filed the present writ petition. The High Court heard the arguments of the learned counsel for the petitioners, Shri S. D. Padiyar, who contended that the order of temporary injunction was within the discretion of the Trial Court and the Appellate Court should not have interfered. The learned counsel for the respondent no. 1, Shri V. Shirodkar, supported the impugned order. The High Court examined the impugned order and found that the Lower Appellate Court had considered the relevant material and had correctly applied the principles for grant of temporary injunction, including prima facie case, balance of convenience, and irreparable injury. The High Court held that the Lower Appellate Court had not committed any perversity or jurisdictional error warranting interference under Article 227 of the Constitution. Consequently, the High Court dismissed the writ petition with no order as to costs.
Headnote
A) Civil Procedure - Temporary Injunction - Appellate Interference - Order 39 Rules 1 and 2, Code of Civil Procedure, 1908 - The Lower Appellate Court set aside the Trial Court's order dismissing temporary injunction, holding that the Trial Court failed to consider relevant material and that the plaintiff had made out a prima facie case. The High Court upheld the appellate order, finding no perversity or jurisdictional error, and dismissed the writ petition. (Paras 6-10) B) Civil Procedure - Discretionary Orders - Interference by Appellate Court - Section 96, Code of Civil Procedure, 1908 - The appellate court can interfere with a discretionary order if the trial court has not exercised its discretion judicially or has ignored relevant material. The High Court found that the Lower Appellate Court had correctly applied the principles for grant of temporary injunction. (Paras 6-10)
Issue of Consideration
Whether the Lower Appellate Court was justified in interfering with the discretionary order of the Trial Court dismissing the application for temporary injunction.
Final Decision
The High Court dismissed the writ petition with no order as to costs, upholding the Lower Appellate Court's order granting temporary injunction.
Law Points
- Temporary injunction
- Appellate interference
- Discretionary order
- Prima facie case
- Balance of convenience
- Irreparable injury
- Civil Procedure Code
- Section 96 CPC
- Order 39 Rules 1 and 2 CPC
