Case Note & Summary
The appellants, Mrs. Rukmini Baburao Fotto Dessai and Mr. Baburao Fotto Dessai, filed an appeal against an order dated 1.2.2016 passed by the District Judge-3, which rejected their application for temporary injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908. The appellants claimed to be the owners and in possession of a property in Maad, Bansai, Cacora, Quepem, Goa. They alleged that the respondents, including the Curchorem-Cacora Municipal Council and other government authorities, were attempting to construct a compound wall on their land without any legal right. The trial court had dismissed the injunction application, holding that the appellants failed to establish a prima facie case. On appeal, the High Court of Bombay at Goa examined the documents on record, including title deeds and revenue records, and found that the appellants had demonstrated a strong prima facie case of ownership and possession. The court noted that the balance of convenience was in favor of the appellants, as the construction of the wall would cause irreparable injury by altering the nature of the property and potentially dispossessing the appellants. The court also observed that the respondents did not produce any evidence of their right to construct on the suit land. Consequently, the High Court allowed the appeal, set aside the trial court's order, and granted the temporary injunction restraining the respondents from constructing the compound wall until the disposal of the suit. The court directed the trial court to expedite the hearing of the suit.
Headnote
A) Civil Procedure - Temporary Injunction - Order 39 Rules 1 and 2 CPC - Prima Facie Case - The appellants sought injunction to restrain construction of a compound wall on their property. The court held that the appellants had made out a prima facie case based on title documents and possession, and the balance of convenience was in their favor as construction would cause irreparable injury. (Paras 4-10) B) Specific Relief Act, 1963 - Section 38 - Injunction Against Trespass - The court considered the appellants' claim of ownership and possession and found that the respondents failed to demonstrate any right to construct on the suit land. Held that the appellants were entitled to protection of their possession. (Paras 6-9)
Issue of Consideration
Whether the trial court erred in rejecting the appellants' application for temporary injunction restraining the respondents from constructing a compound wall on the suit property.
Final Decision
The appeal is allowed. The order dated 1.2.2016 passed by the District Judge-3 is set aside. The respondents are restrained by way of temporary injunction from constructing a compound wall on the suit property until the disposal of the suit. The trial court is directed to expedite the hearing of the suit.
Law Points
- Prima facie case
- balance of convenience
- irreparable injury
- temporary injunction
- Order 39 Rule 1 and 2 CPC
- Section 38 Specific Relief Act
- 1963
