1 AO143.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.143 OF 2010 KJ Mr.Olvin S.Lobo )..Appellant Versus Mr.Roque Francis Rodrigues )..Respondent ---- Shri C.P.Deogirikar for the appellant. Shri D.D.Mello for the respondent no.1. Mrs.K.K.Soran for respondent no.2. ---- CORAM : MRS.MRIDULA BHATKAR,J DATE : 5.9.2011 PC 1 This appeal is filed against the orders passed on 16.2.2009 and 24.3.2009 granting injunction in favour of the plaintiff who is respondent no.1. The original plaintiff who is the owner of the immovable property has entered into an agreement of development of the said land with the original defendant no.1 i.e 2 AO143.10.sxw appellant. However, as the terms of the agreement were not fulfilled by the appellant i.e defendant no.1, the plaintiff terminated the agreement and thereafter he filed a suit in the City Civil Court, Dindoshi, Mumbai for injunction and also for mandatory injunction to demolish un-authorised structure against the appellant. After service of the notices on defendant no.1 i.e appellant and defendant no.2 i.e Corporation, the Civil Court has granted interim injunction on 24.3.2009. Being aggrieved with the said order, this appeal is filed. 2 Learned Counsel for the appellant submitted that the order of injunction was passed ex-parte against him. It was argued that this Court to consider two points i.e the order of interim injunction was passed ex-parte and secondly there were some other developments and change of circumstances which the trial court ought to have considered subsequently. Learned Counsel argued that the Notice of Motion was not served on defendant no.1. In support of his submission, he relied on the roznama of the trial Court dated 4.2.2009 where defendant no.1 was marked absent 3 AO143.10.sxw and he was not represented by the Counsel. Learned Counsel further submitted that the respondents i.e original plaintiffs have filed the suit for injunction and have terminated the contract because at the time of filing suit i.e January-2009 the plans of the building were not sanctioned and therefore, injunction was granted in favour of the plaintiffs. However, suit was dismissed as plaintiffs did not appear before the court and also plaintiffs failed to take steps to serve notice of the suit to the defendant no.1. As the suit was dismissed, the order of injunction also came to an end and therefore, the appellant did not pursue this appeal which was filed on 10.7.2009. He pointed out that the suit was specifically restored on 17.12.2009 when the plaintiff by paying the cost fulfilled the conditional order of restoration of the suit. Learned Counsel pointed out that when the suit was restored, the order of injunction passed in Notice of Motion was not restored and therefore, as on today, the order dated 24.3.2009 has become de- novo. Learned Counsel submits that in between, Notice of Motion was moved by the respondent against the appellant under Order-39 Rule-2A as there was a breach of order of injunction. He 4 AO143.10.sxw further submitted that the appellant was not aware of the order dated 23.3.2009 and therefore, it was not willful dis-obedience of the order. He submitted that the trial Court ought to have considered that there was no proper service on the appellant and he has taken the separate proceedings against the order passed by the trial Court under Order-39 Rule-2A of Code of Civil Procedure. 3 Learned Counsel for the respondent no.1 submits that defendant no.1 i.e appellant was properly served at the time of hearing of Notice of Motion. He points out that Advocate Mr. Sharma has filed the reply at page no.116 of the compilation for defendant no.1. The said reply was filed on 16.2.2009. He submits that the order was passed after proper service on defendant no.2. Learned Counsel submitted that though subsequently IOD was given and plans were sanctioned when the suit was filed and order was passed, the IOD was not issued and the plans were not sanctioned and therefore, the order of the trial court is legal. 5 AO143.10.sxw 4 Perused the order dated 24.3.2009 by which the interim relief was granted in favour of the respondent no.1. By order dated 8.7.2009 suit was dismissed for default. Thereafter, the trial court restored the suit by allowing Notice of Motion No.952 of 2009 wherein the reliefs as per prayer clauses-(a) and (b) were granted. The prayer clauses (a) & (b) reads as follows :- (a) That the order dated 8.7.2009 dismissing the suit, be set aside ; (b) That the present suit and Notice of Motion Exhibit-5 be restored to file. 5 Thus by allowing prayer clause-(b), the Notice of Motion i.e Exhibit-5 was restored to file. It shows that whatever the reliefs were claimed, orders passed in Notice of Motion Exhibit-5 were restored to the file and therefore, the submissions of the learned Counsel that as the suit is dismissed for default on 8.7.2009, the interim relief granted in favour of the plaintiff i.e respondent no.1 was not in existence, is not correct. Record shows that one Advocate Mr. Sharma has filed reply on behalf of defendant no.1 6 AO143.10.sxw on 16.2.2009 and the order was passed on 24.3.2009. Thus the defendant no.1 was represented through Counsel on 16.2.2009 i.e prior to 24.3.2009. Therefore, the contention of the appellant that there was no proper service is baseless. Further, roznama dated 4.2.2009 discloses that affidavit of service was filed by the original plaintiff which is marked Exhibits 6 & 7 showing that appellant i.e original defendant no.1 has refused to accept the service. It is to be noted that in spite of filing of the caveat, the appellant- defendant no.1 refused to accept the notice. Filing of the reply by the Advocate for defendant no.1 is a best proof of the knowledge of the Notice of Motion filed by the plaintiff i.e respondent no.1. On the point of service, learned Counsel relied on judgment in the case of A.Venkatasubbiah Naidu Vs. S.Chellappan & Ors reported in (2000) 7 SCC 695. I have gone through the ruling. On facts, it is different. In that case, ex-parte interim injunction was granted for want of proper service. 6 Hence, I do not find any merit in this matter. Secondly, if at all, there is a change of circumstances, as argued by the learned 7 AO143.10.sxw Counsel for the appellant, no proper steps are taken by the appellant before the trial Court. Hence, appeal is dismissed. (MRS.MRIDULA BHATKAR,J)