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2014 DIGILAW 973 (BOM)

Shrimati Shrirang Naik v. Vijaykant Sonu Naik

2014-04-15

S.B.SHUKRE

body2014
Judgment : 1. Heard. Rule made returnable forthwith. Heard finally by consent. 2. The only point which arises for my consideration is: Whether the impugned orders passed by both the Courts below rejecting the application of the petitioners for seeking permission of the Court to suitably modify the order of the temporary injunction dated 14.05.2009, passed in Regular Civil Suit No. 52/2007 are un-reasonable and arbitrary? 3. In the suit that was filed by respondents no. 1 to 5 against the remaining respondents and present petitioners seeking declaration that decree dated 16.12.2006 passed in Special Civil Suit No. 128/2001 was null and void and also seeking perpetual injunction against remaining respondents and present petitioners, who are defendants 2 to 14 in the suit before the trial Court, an application seeking temporary injunction during pendency of the suit was filed by respondents no. 1 to 5. The application, by an order passed on 14.05.2008, was granted by the trial Court. This order of temporary injunction was accepted by the petitioners and also by the remaining respondents. 4. Thereafter, the petitioners felt that because of the existence of the order of the temporary injunction in the matter, they were not able to make convenient use of the suit house as it was their contention that the separating wall passing through the middle of the house and also the door-space was without any door. Therefore, by an application filed on 15.11.2010, the petitioners sought permission of the Court to install the door frame and also demolish part of the wall for erecting laterite stone pillars on both sides. 5. The application so filed was opposed by the original plaintiffs i.e. respondents no. 1 to 5 stating that petitioners (defendants no. 2 to 14) could not be given permission to install the door-frame at that stage of the suit. It was also submitted by the plaintiffs that these defendants had carried out work in violation of order of injunction and plaintiffs intended to file appropriate application in that regard. 6. After hearing both the sides, the learned Civil Judge by her order passed on 18.03.2011, dismissed the application by imposing costs of Rs. 300/-. 7. This order was challenged before the first appellate Court, which also dismissed the appeal thereby confirming the order passed by the trial Court. The order of the dismissal of the appeal was passed by the District Judge-1 on 10.06.2013. 300/-. 7. This order was challenged before the first appellate Court, which also dismissed the appeal thereby confirming the order passed by the trial Court. The order of the dismissal of the appeal was passed by the District Judge-1 on 10.06.2013. Therefore, the petitioners, by this petition have challenged both these orders passed by the Courts below. 8. The learned Counsel for the petitioners submits that both the Courts below have not taken into account the factor of hardship, as provided under Rule 4 Order 30 of C.P.C., that the order of temporary injunction was causing to the petitioners and both the Courts have only considered the other condition of the proviso that there was no change in the circumstances, which made orders passed by the Courts as arbitrary and un-reasonable. 9. The learned Counsel for respondents no. 1 to 5 who are mainly contesting parties to the petition has submitted that the orders passed by the Courts below are perfectly legal and justifiable. The circumstances which were in existence at the time of the original order of temporary injunction passed in the year 2007, also, existed at the time of the application seeking modification of temporary injunction, which was filed in the year 2011 by the petitioners. He submits that if there was any hardship as submitted by the petitioners in making use of the suit house, the hardship existed also in the year 2008 when temporary injunction order was passed and since it took about three years for the petitioners to seek modification of the temporary injunction order on the ground of hardship, it can be considered that the ground so taken by the petitioners is false. He also submits that as a matter of fact there was not even a whisper in the application of the petitioners about the ground of hardship. He also submits that there are concurrent findings recorded by both the Courts below and these orders being not perverse, the petitioners cannot invoke the writ jurisdiction of this Court under Article 227 of the Constitution of India. 10. To appreciate rival arguments, it would be necessary to consider the original order of the temporary injunction passed by the trial Court on 14.05.2008. The operative part of the order appears in paragraph 13 and it reads thus: "13. 10. To appreciate rival arguments, it would be necessary to consider the original order of the temporary injunction passed by the trial Court on 14.05.2008. The operative part of the order appears in paragraph 13 and it reads thus: "13. In the circumstances and for the reasons discussed above this application stands granted with costs restraining the defendants from alienating or transferring the suit plot or creating the third party rights therein and also from demolishing or structurally altering the residential house in the suit plot no. 84 until the disposal of this suit." 11. This order was originally passed by the trial Court and has been confirmed as no challenge has been made to it by the petitioners or by the remaining respondents. It is clear from this order that the trial Court has prohibited till disposal of the suit, the following things: (i) alienating or transferring the suit plot, (ii) creating third party rights in the suit plot, (iii) demolition of the residential house in suit plot no. 84 and (iv) prohibiting structural alterations in the house in suit plot no. 84 12. By the application dated 15.11.2010, the petitioners have only sought the permission of the trial Court to install the door-frame in the door way and also for demolition of a part of the wall for the purpose of erecting laterite stone pillars on both sides. It was stated by petitioners that after a decree of partition, a separating wall passing through the middle of the existing front door-way came to be constructed as a result of which existing door was required to be removed as the door-space got reduced. It was also stated that new door was required to be fitted and before it could be done, temporary injunction order came to be passed. 13. Now, if we consider this position, about which there is no dispute, the hardship being caused to petitioners due to their inability to fix new door-frame with doors due to operation of injunction is obvious. No one can live in a house these days without door shutters which can be opened and closed, as per convenience. But, in the instant case, there is no door in existence, and absence of it would cause inconvenience to, as well as create sense of insecurity among, inhabitants of the house. No one can live in a house these days without door shutters which can be opened and closed, as per convenience. But, in the instant case, there is no door in existence, and absence of it would cause inconvenience to, as well as create sense of insecurity among, inhabitants of the house. This is nothing but hardship which can be perceived even from the statement of factual position, without there being averment relating to causing of hardship. Hardship is more of a matter to be ascertained from the facts established on record and less of an averment. Hardship is one of the grounds of variation of temporary injunction order as contained in the proviso to Rule 4 Order 39 of C.P.C. and since it has been over-looked by both Courts below, the impugned orders, on this count itself can be termed as perverse and arbitrary. 14. The learned Counsel for the petitioners has argued that the aspect of hardship, if any, existed since the year 2008, and if it did not cause any inconvenience or hardship, how suddenly after three years could it cause so. Therefore, he submits, the application filed by the petitioners lacked bona-fides. Only because it was not raised earlier, I must say, it could not be said, the application was filed mala-fide. Sometimes, a person may think he can put up with inconvenience and hardship resulting from injunction order for sometime in the hope that injunction itself will be vacated by quick disposal of suit and when he finds that his hope cannot turn into a reality within a reasonable time, he may thereafter choose to avail of remedy available to him to mitigate the situation. Therefore, I see no merit in the said argument. 15. As regards the argument by the learned Counsel for the respondent that putting up of the door-frame and demolishing some part of the wall, may result in some structural change to the residential house, I am of the view that by no stretch of imagination or by any logic, such work can be seen to bring about a structural change. Installation of door-frame in an existing door-space and demolishing some portion of the wall to create appropriate space for fixing the frame are not a structural changes. Creation of a new door-space might be a structural change, in some cases, depending upon fact situation. Installation of door-frame in an existing door-space and demolishing some portion of the wall to create appropriate space for fixing the frame are not a structural changes. Creation of a new door-space might be a structural change, in some cases, depending upon fact situation. In any case, admittedly that is not the case here. 16. In these circumstances, I am of the view that by allowing any alterations in the suit house as sought in the application filed on 15.11.2010 neither any structural change to the residential house nor any prejudice to the plaintiffs would be caused, rather prima-facie, it would lead to removing of hardship presently being faced by the petitioners. The alteration as sought for by them is perfectly within the scope of the proviso to Rule 4 Order 39 of C.P.C. and therefore, the application ought to have been allowed by the Courts below. In these circumstances, the order passed by both the Courts below are found to be unreasonable and arbitrary. They need to be quashed and set aside. The point is answered accordingly. 17. The writ petition is allowed and consequently, the application filed by the petitioners dated 15.11.2010 also stands allowed in terms of its prayer clause. 18. Rule is made absolute in these terms. Parties to bear their own costs.