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2013 DIGILAW 2516 (BOM)

Rosy Pereira v. Crasto Realtors

2013-12-06

U.V.BAKRE

body2013
JUDGMENT Heard Mr. Agni, learned counsel for the appellants and Mr. S. D. Lotlikar, learned Senior Counsel appearing on behalf of the respondents no.1 and 2. 2. Admit. Heard forthwith with the consent of the learned counsel for the parties. 3. By this appeal, the appellants have challenged the order dated 26/4/2013 passed by the Learned Civil Judge Senior Division, Ponda, in Special Civil Suit No.10/2012/A whereby the trial court partly allowed the application for temporary injunction but refused to grant injunction in favour of the plaintiffs thereby restraining the respondents from carrying on with any construction in the suit property and from selling/occupying the flats, etc. 4. The appellants are the owners and occupants of respective flats in "Macedo Apartments" at Tisk Ponda Goa. Respondent no.1 is the petitioner, who constructed the said building whereas, respondent no.2 is the original owner of the plot on which "Macedo Apartments" are situated. The plot is surveyed under survey no.187/4 admeasuring 1850 square metres. Respondent no.1 initially constructed three buildings in this plot, namely, Block No.1 having three floors with 8 flats; Block No.2 having three floors and 11 flats and lastly Block No.3 having 13 shops with mezzanine floor but no floors on it. According to the appellants, the said Block no.3 was constructed without proper setbacks and without parking space and that there were various irregularities committed while doing the said construction. According to the appellants, recently the respondent no.1 started construction of new three floors on the said Block no.3 and the construction of said three floors on Mezzanine floor of Block no.3 was partly done and respondent no.1 was intending to construct four flats on all three floors and those flats were under construction. The appellants alleged that besides the other illegalities, there was also no F.A.R. available for respondent no.1 to do the construction. Therefore, on the ground of there being several irregularities, the appellants filed the said suit in which they filed an application for temporary injunction which has been disposed of by the trial court by the impugned order. 5. The respondent no.1 filed written statement and reply denying the case of the appellants and stating that the construction has been done after obtaining all statutory permissions and within all the rules. 6. 5. The respondent no.1 filed written statement and reply denying the case of the appellants and stating that the construction has been done after obtaining all statutory permissions and within all the rules. 6. Upon perusal of the plaint, application for injunction, written statement, reply, Affidavit-in-Rejoinder, Affidavit-in-Sur-rejoinder and the documents produced by the parties on record, the trial Court came to a prima facie conclusion that the construction has been done within the limits of all the rules and with all required permissions and approvals. It was further found that the structures were almost complete though some minor works were remaining. Therefore, the trial court directed that respondent no.1 will have to necessarily comply with the directions given and the permissions/licences issued by the concerned authorities. The trial Court, however, observed that the other issues like issuance of N.O.C. in formation of Housing Society and to execute Sale Deed of the land, water proofing the terrace of Blocks 1 and 2 and T-1 and S-1, provision of pavers, issuance of occupancy certificates and sale of flats and occupancy certificates of the flats and also proceeding with further construction and interfering in the shade made by the plaintiffs would be taken up on merits, as the parties are required to lead evidence on the same, these being triable issues. The trial court further observed that the appellants as well as the respondent no.1 had filed their independent reports prepared by Engineers due to which there was need to appoint a Commissioner to make a local investigation under Order 26 Rule 9 of C.P.C.. 7. During the course of arguments, it is reported that all the constructions are now complete in all respects. Since the trial court has prima facie found that the said constructions are done within the four corners of the applicable rules and after obtaining the statutory permissions, licences, approvals, etc. and since at least the fact that all the statutory permissions/approvals, etc. have been obtained cannot be denied as the said documents are produced on record, there is little scope for interference with the impugned order. 8. It may be seen from the impugned order that the various grievances of the appellants have been taken care of. The defendant no. and since at least the fact that all the statutory permissions/approvals, etc. have been obtained cannot be denied as the said documents are produced on record, there is little scope for interference with the impugned order. 8. It may be seen from the impugned order that the various grievances of the appellants have been taken care of. The defendant no. 1 has been directed to adhere to all the conditions laid down by the Authorities who granted permissions/licences towards the construction, providing adequate car parking spaces or the occupants of the three buildings. The respondent no.1 has been directed to cut the protruding iron bars from flats T-1 and S-1 of Block 2 and to construct water sump as per the technical requirements. 9. Learned counsel appearing on behalf of the appellants sought to produce before this Court a show cause notice issued now to the respondent no.1 by Ponda Municipal Council in respect of alleged irregularities noticed with regard to the construction. That being a show cause notice issued after the disposal of the application for temporary injunction, the respondent no.1 will be filing reply and the concerned authority of Ponda Municipality would be deciding that matter. The statutory authorities are free to act in accordance with law. 10. Considering the aspects of prima facie case, balance of convenience and irreparable loss, in my considered view, since the constructions are already complete and there are statutory permissions for the same, the question of putting further restraint on issuance of occupancy certificates and sale of the flats in Block 3 does not arise now. It was submitted by the learned counsel for the appellants that since the trial court itself has observed that there are various triable issues to be decided on merits and further since a Commissioner has been ordered to be appointed, it would be in the interest of justice and fair play to direct that the sale of flats etc. shall be subject to the final disposal of the main suit. On the other hand, learned Senior Counsel for the respondents no.1 and 2 strongly objected to putting such rider. shall be subject to the final disposal of the main suit. On the other hand, learned Senior Counsel for the respondents no.1 and 2 strongly objected to putting such rider. He submitted that the appellants are displaying boards and cloths on the construction site and on the building itself and advertising the interim reliefs granted by the court and thus are indirectly preventing the willing purchasers from purchasing the flats which is going to cause irreparable injury to the respondents no.1 and 2. He submitted that if anything is done pending the suit, then in terms of law, it is always subject to the final judgment and hence there is no need of passing any further order. I have no hesitation to agree with the above submission of the learned senior counsel that whatever is done during the pendency of the suit will be subject to the final decision and hence there is no need to pass any specific order, in this regard. 11. In view of the above, no interference is called for with the impugned order passed by the learned trial court. Appeal is dismissed and disposed of as such.