Case Note & Summary
The appeal arose from an order of the Adhoc Senior Civil Judge, Margao, dismissing the plaintiffs' application for temporary injunction in a suit for permanent injunction. The plaintiffs claimed to be co-owners of the suit property along with defendant No.3 and one Eric, having purchased it via a Sale Deed dated 09/01/1995. The plaintiffs alleged that they had been running a hotel and restaurant business on the property since 2000 with the consent of the other co-owners, who were residing abroad. Various statutory licenses had been obtained from the Canacona Municipal Council, Tourism Department, and Excise Department in the name of the plaintiffs. In the 2012-2013 tourist season, when the business turned profitable, defendant No.3 allegedly attempted to forcibly take over the restaurant using bouncers, resulting in a criminal complaint and his subsequent arrest and departure from India. The plaintiffs further claimed that defendants No.1 and 2, acting on the authority of defendant No.3, plucked 500 coconuts from the property and threatened to interfere with the business. The defendants denied these allegations, asserting that the property was in a dilapidated condition with no business being conducted, and that the plaintiffs had obtained official documents through misrepresentation. The Trial Court dismissed the injunction application, leading to the present appeal. The High Court admitted the appeal and heard arguments. The plaintiffs' counsel contended that a co-owner in settled possession cannot be dispossessed and relied on T. Lakshmipathi and others v/s. P. Nithyananda Reddy and others (AIR 2009 SC 2427) and Jahuri Sah and others v/s. Dwarka Prasad Jhunjhunwala and others (AIR 1967 SC 109). The defendants' counsel argued that the Trial Court had properly exercised its discretion in accordance with the principles laid down in Wander Ltd. and another v/s. Antox India Pvt. Ltd. (1990 (Supp) SCC 727) and Dalpat Kumar and another v/s. Prahlad Singh and others (AIR 1993 SC 276), and that the plaintiffs were attempting to oust a co-owner. The judgment text ends before the pronouncement of the final order, leaving the outcome undetermined.
Issue of Consideration
Whether the Trial Court committed an error in dismissing the plaintiffs' application for temporary injunction.
Law Points
- co-ownership rights
- possession
- injunction
- prima facie case
- balance of convenience
- irreparable injury
- discretion of trial court
Case Details
2018 LawText (BOM) (08) 131
Appeal from Order No.13 of 2018
C.A. Coutinho for appellants; J.E. Coelho Pereira, Senior Advocate with V. Braganza for respondents
Tirath Ram Sharma and Balveer Sharma
Gaurav Mohan Bhagat, Mohan Bhagat, Surinder Sharma
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Nature of Litigation
Civil suit for permanent injunction with application for temporary injunction.
Remedy Sought
Plaintiffs sought a temporary injunction to restrain the defendants from interfering with their possession and business operations on the suit property.
Filing Reason
Defendants allegedly attempted to forcibly take over the restaurant business, damaged property, plucked coconuts, and issued threats, despite the plaintiffs' long-standing possession and operation of the hotel/restaurant.
Previous Decisions
The Trial Court (Adhoc Senior Civil Judge, Margao) dismissed the application for temporary injunction vide order dated 19/01/2018.
Issues
Whether the Trial Court erred in dismissing the plaintiffs' application for temporary injunction.
Whether the plaintiffs made out a prima facie case for grant of injunction as co-owners in settled possession.
Submissions/Arguments
Plaintiffs argued that they were co-owners in settled possession running a business with the consent of the other co-owners, holding valid statutory licenses since 2003, and that a co-owner cannot be ousted except by partition; relied on T. Lakshmipathi and Jahuri Sah cases.
Defendants argued that the Trial Court properly exercised its discretion, that the plaintiffs were trying to oust a co-owner, that the property was dilapidated with no business, and that the documents were obtained by misrepresentation; relied on Wander Ltd., Dalpat Kumar, and Kochkunju Nair cases.
Judgment Excerpts
The plaintiffs carved a case that they were the co-owners of the property in question surveyed under No.133/42 of village Nargarcem with the defendant No.3 and one Eric pursuant to a Deed of Sale dated 09/01/1995.
The Trial Court had exercised the discretion following the principles laid down by the Hon'ble Apex Court in Dalpat Kumar and another v/s. Prahlad Singh and others [AIR 1993 SC 276] and therefore there was no basis to interfere with the order in appeal on the ground of illegality, perversity and non-application of mind.
Procedural History
The plaintiffs filed a suit for permanent injunction along with an application for temporary injunction. The Trial Court dismissed the temporary injunction application on 19/01/2018. The plaintiffs filed Appeal from Order No.13 of 2018 before the High Court of Bombay at Goa. The High Court admitted the appeal on 02/08/2018, heard arguments, reserved judgment on 2nd August 2018, and pronounced it on 24th August 2018. The judgment text ends without recording the final order.
