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2014 DIGILAW 1710 (BOM)

Carlos Tavora v. Boshan Developers Pvt. Ltd.

2014-08-01

A.R.JOSHI

body2014
Judgment : 1. Heard rival submissions at length on this writ petition preferred by the petitioner-original defendant challenging the judgment and order dated 05.03.2009 of the District Judge-1, North Goa, Panaji in Miscellaneous Civil Appeal No. 137/2008. The said appeal preferred by the present writ petitioner-defendant was rejected and the earlier order passed by the learned Civil Judge Junior Division, Mapusa in Regular Civil Suit No. 208/2005/D dated 18.11.2008 was confirmed. The said order dated 18.11.2008 was passed on the application of the present respondent-original plaintiff under Order 39 Rule 4 of the Civil Procedure Code in the said suit asking for further clarification and for variation of injunction in the order earlier granted on 18.05.2006. 2. The facts of the case are rather peculiar in nature and apparently an example as to how the parties do not obey the order of the Court still when it is a question of touching safety of the persons residing in the neighbourhood. 3. Certain factual position and various stages and various orders passed by the earlier Courts are mentioned in order to have proper perspective of the matter and it is to be seen whether under writ jurisdiction any relief can be granted to the present petitioner-defendant. 4. Initially, the suit was filed by the present respondent-plaintiff for removal of the gas cylinders which were kept at the open space of the building in a brick-cement structure constructed by the petitioner-defendant without any authority. Admittedly, the said gas cylinders were kept outside the premises purchased by the petitioner-defendant from the respondent-plaintiff and those gas cylinders were used for supplying gas to burners/stoves used in the restaurant. Apparently, outside the premises where the gas cylinders are kept, there are also ornamental flower vases kept by the petitioner-defendant. As such, when the suit was filed for removal of such gas cylinders and flower vases, an application for injunction was also preferred and initially order was passed on 18.05.2006 by the trial Court. The said order reads thus: “Application for temporary injunction is granted. Defendant no. 1 is directed to remove the gas cylinders, ornamental vases placed on the parking area and further directed not to do any construction or digging or excavating in the suit property. No order as to costs. Proceedings closed.” 5. This order was challenged by the present petitioner-defendant in Miscellaneous Civil Appeal No. 46/2006. Defendant no. 1 is directed to remove the gas cylinders, ornamental vases placed on the parking area and further directed not to do any construction or digging or excavating in the suit property. No order as to costs. Proceedings closed.” 5. This order was challenged by the present petitioner-defendant in Miscellaneous Civil Appeal No. 46/2006. Said appeal was dismissed by the Ad-hoc Additional District Judge Fast Track Court, Mapusa vide order dated 10.07.2006. Present respondent-plaintiff also challenged said order dated 18.05.2006 in Miscellaneous Civil Appeal No. 45/2006. Subsequently, execution proceedings were adopted by the respondent-plaintiff. However, objection was raised by the present petitioner-defendant. Meantime, Writ Petition No. 565/2006 was preferred by the present respondent-plaintiff on the order of the District Court in Miscellaneous Civil Appeal No. 45/2006 and said appeal was preferred by the present respondent-original plaintiff challenging the original order dated 18.05.2006 as mentioned above. Though, the writ petition of the respondent-original plaintiff was dismissed, clarification is made by this Court vide order dated 07.02.2007 (Coram:- S.K. Shah, J.) that the observations made by the District Judge while dismissing the appeal of the petitioner-original defendant bearing no. 45/2006 were erroneous, in as much as, the District Court has wrongly interpreted the initial order of the trial Court dated 18.05.2006 to the effect that the removal of the gas cylinders from the parking space was directed vide order dated 18.05.2006. Though this Court has opined as to erroneous observations of the District Court, still the writ petition of the respondent, then plaintiff was not allowed as it was held that the petitioner is not aggrieved by final order of the Additional District Court. Whatever that may be, the position then stood as in the year 2007 that the gas cylinders remained in the structure of brick and cement construction done in the open common space apparently allotted for the use of the residents of the building. As such, being aggrieved by this situation though the orders were passed by the trial Court on 18.05.2006 that the gas cylinders are required to be removed by the petitioner-defendant, another application under Order 39 Rule 4 of Civil Procedure Code was preferred by the present respondent-plaintiff. It was finally heard and order was passed on 18.11.2008. As such, being aggrieved by this situation though the orders were passed by the trial Court on 18.05.2006 that the gas cylinders are required to be removed by the petitioner-defendant, another application under Order 39 Rule 4 of Civil Procedure Code was preferred by the present respondent-plaintiff. It was finally heard and order was passed on 18.11.2008. The said order reads thus: “The application at Exhibit D-70 is hereby partly granted in terms of prayer “A” and the injunction Order dated 18.05.2006 is hereby varied. The defendant no. 1 is directed to remove the gas cylinders from the masonry cabinet constructed at a distance of one meter away from the suit premises within the suit property. Pronounced in the open Court.” 6. The above Order was challenged by the present petitioner-defendant in Miscellaneous Civil Appeal No. 137/2008 and said appeal was rejected vide order dated 05.03.2009 and this is the order challenged in the present writ petition. 7. During the arguments, it is submitted on behalf of the petitioner that another application under Order 39 Rule 4 of Civil Procedure Code could not have been entertained by the trial Court as there was no change in the circumstances and it was only for clarification of the earlier order dated 18.05.2006. This objection was also raised before the District Court in Miscellaneous Civil Appeal No. 137/2008 and that Court had rejected the submissions endorsing the maintainability of such application under Order 39 Rule 4 of Civil Procedure Code for variance/modification of the earlier order. It must be seen as to under what exigency Order 39 Rule 4 of Civil Procedure Code can be taken shelter of by the party. If, any party is dissatisfied with the order of injunction, the party is entitled to ask for setting it aside, varied or discharged. Apart from the exigency as to change in the circumstances, there is also another reason for entertaining such application when the Court is satisfied that the order has caused undue hardship to the party who has applied. 8. In the considered view of this Court in the factual position mentioned above, application under Order 39 Rule 4 of Civil Procedure Code was liable to be entertained and accordingly entertained by the trial Court and said order was upheld by the District Court in miscellaneous civil appeal. 8. In the considered view of this Court in the factual position mentioned above, application under Order 39 Rule 4 of Civil Procedure Code was liable to be entertained and accordingly entertained by the trial Court and said order was upheld by the District Court in miscellaneous civil appeal. In fact, it is an unfortunate situation that the said order of injunction passed on 18.05.2006 is still continuing without there being any implementation of the said order more so when there are observations made in earlier Writ Petition No. 565/2006 as mentioned above. In any event, under the writ jurisdiction there is nothing to interfere with the order of the trial Court dated 18.11.2008 and the order of the District Judge dated 05.03.2009. Hence, the present writ petition is dismissed. Rule discharged. Upon request on behalf of petitioner, operation of this order is stayed for two weeks from today.