MP 1 AO1344 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1344 OF 2010 WITH CIVIL APPLICATION NO. 1655 OF 2010 AND APPEAL FROM ORDER NO. 1345 OF 2010 WITH CIVIL APPLICATION NO. 1656 OF 2010 Kesharinath Anandrao Navghare and others .. Appellants Versus Maharashtra Housing and Area Development Authority and others .. Respondents Mr. G. S. Godbole for Appellants. Mr. Vijay Thorat, Sr. Advocate with Mr. Sanjay Kadam, Mr. Vaibhav and Ms. Apeksha Sharma i/b. Kadam and Company for Respondent No. 4. Mr. V. M. Parsurami for Respondent Nos. 1 and 2. Mr. Monish Thakoor, Director of Respondent No. 4. CORAM : B.R. GAVAI, J. MONDAY, JANUARY 31, 2011 P. C. : By way of present appeal, the appellants challenge the order dated 14th October 2010 passed by the learned Judge, City Civil Court, Mumbai in Notice of Motion No. 1456 of 2010 and Notice of Motion 1795 of 2010 thereby refusing the prayer made by the appellants for grant of interim relief. 2. The appellants-plaintiffs have filed the suit inter alia praying for a declaration that the notices dated 9th June 2010 and the MP 2 AO1344 subsequent order dated 9th July 2010 issued by the Respondent MHADA purportedly under Section 95-A of the Maharashtra Housing and Area Development Authority Act, 1976 (hereinafter referred to as “MHADA Act” for short) are illegal; that the I.O.D. issued by defendant No. 3 i.e. the Municipal Corporation is illegal and for a permanent injunction restraining the respondent No. 4 from carrying out any development activities on the suit property. 3. In the said suit, two notice of motions were filed. The first notice of motion was moved for a temporary injunction to restrain defendant No. 4 from carrying out any development and construction activities on the suit property and the second notice of motion was moved for an order of injunction restraining the defendant Nos. 1 and 2 from initiating any action in pursuance of the order dated 9th July 2010. By the impugned order, both the notice of motions are rejected. Hence, the present appeal. 4. Mr. Godbole, the learned Counsel appearing for the appellants, submits that the findings of the learned Trial Court are perverse, and as such, are liable to be quashed and set aside. He submits that the development which the defendant No. 4 is seeking to carry out on the basis of the agreement entered into between him and defendant Nos. 5 to 10 is not at all permissible in law inasmuch as the defendant Nos. 5 to 10 have no right in the property. He submits that in the decree passed in S.C. Suit No. 1813 of 2003, it has been specifically held that the said defendants have no right over the suit property. He, therefore, submits that the permission granted by the Maharashtra Housing and Area Development Authority (hereinafter referred to as “MHADA” for short) u/s. 95-A of the MHADA Act on the basis of said agreement is MP 3 AO1344 also not sustainable in law. He further submits that the learned Trial Court has failed to take into consideration that the provisions of Section 96-A of the MHADA Act and Rule 37(7) of the Development Control Rules are not at all applicable to the facts of the present case. He submits that ignoring this, the learned Trial Court has refused injunction as prayed for. The learned Counsel further submits that the findings of the learned Trial Court in paragraph 4 of the order would show that it is nothing but passed on conjunctures and surmises, and as such, not sustainable in law. 5. Mr. Godbole, learned Counsel for the appellants submits that the learned Trial Court has erred in unnecessarily giving much reliance on the consent terms in Suit No. 1321 of 1997. He submits that the said consent terms are nothing else but the agreement between the parties and unless the said agreement is fortified by registered conveyance, the defendant No. 4 would have no rights in the said property. 6. Mr. Thorat, the learned Senior Counsel appearing on behalf of Respondent No. 4, on the contrary, submits that the appellants- plaintiffs have not approached the courts with clean hands, and as such, they are not entitled to any relief. He submits that the plaintiffs in the consent terms, filed before this Court in Suit No. 1321 of 1997, have given a clear undertaking to this Court that they confirm that the Agreement for Development dated 1st April 1995 and the Power of Attorney of the same date and the same are valid, subsisting and binding upon them. He submits that since the names of the defendant Nos. 5 to 10 were recorded in the revenue records, in order to avoid further complications, the defendant No. 4 got the matter settled with them by MP 4 AO1344 paying them certain amount. He further submits that while making the payment to the said defendants, none of the rights which accrues to the plaintiffs in pursuance of the Development Agreement and consent terms have been affected. He further submits that in pursuance to the orders passed by MHADA under Section 95-A of the MHADA Act, all the tenants have vacated. He, therefore, submits that the learned Trial Court has rightly applied the principles of prima facie case, balance of convenience and irreparable injury while passing the order. He further submits that if the injunction was granted the entire scheme would come to standstill. As against this, no prejudice would be caused to the plaintiffs inasmuch as their rights are fully safeguarded in the consent terms filed before this Court. Shri Thorat, on the instructions of Mr. Monish Thakoor, the Director of respondent No. 4, who is personally present in the Court, makes a categorical statement that the respondent No. 4 is always willing and would abide by the terms and conditions of the Development Agreement so also the consent terms. 7. Mr. Parsurami, the learned Counsel appearing on behalf of the respondent Nos. 1 and 2 states that the respondent-MHADA, after considering the entire material and finding that the scheme submitted was in accordance with law, has passed the order which is challenged in the Suit. 8. The scope of Appeal against Order under Order 43 (1)(r) of the Code of Civil Procedure is very limited. Unless it is found that the findings recorded are perverse or improper, it is not permissible for this Court to interfere with the same. Equally, it is not permissible to interfere with the finding, only because the Courts find that two views are possible and had it exercised original jurisdiction, it would have MP 5 AO1344 preferred the other view. 9. The learned Trial Court after applying the tests of prima- facie case, balance of convenience and irreparable injury has refused the injunction. It is not in dispute that the agreement for development was executed between the plaintiff No. 1 and predecessor in title of the plaintiff Nos. 2 to 5. It appears that since the Plaintiff Kesharinath and his brother Dashrath (deceased) did not comply with the agreement, a Suit for specific performance came to be filed by the defendant No. 4 in this Court being Suit No. 1321 of 1997 on the original side. It further appears that during the pendency of the Suit, the matter came to be amicably settled between the defendant No. 1 on one hand and plaintiff No. 1 and deceased Dashrath on the other hand. It would be relevant to refer to paragraph 2 of the said consent terms. It reads thus: 2. The Defendants hereby agree and undertake to this Hon’ble Court that subject to the terms and conditions set out herein, the Defendants do and each of them doth hereby confirm that the Agreement for development dated 1st April, 1995 and the even dated Power of attorney is valid, subsisting and binding upon them and the Defendants do carry out the sale of the suit property more particularly described in the schedule hereunder written in favour of the Plaintiffs in accordance with the terms and conditions mentioned in Agreement for development dated 1st April, 1995. It can thus clearly be seen that the defendants in the said Suit i.e. Kesharinath-plaintiff No. 1 and the deceased Dashrath have in unequivocal terms given an undertaking to this Court that they confirm to the Agreement dated 1st April 1995 and the power of attorney of the same date. The details regarding the payment already made and to be MP 6 AO1344 made are given in paragraph 3 of the said consent terms. It can thus clearly be seen that the plaintiff No. 1 and the predecessor in title of the plaintiff Nos. 2 to 5 had received an amount of Rs. 18 lakhs on the date on which the consent terms were drawn between them. The details regarding the manner in which the balance payment of Rs. 27 lakhs is to be made are also given in paragraph 3. Perusal of paragraph 7 of the consent terms would also reveal that the possession of the suit property has been delivered by the defendants therein (viz. Dashrath and Kesharinath) to the present Respondent No. 4. Thus, at least at this stage, it can clearly be seen that the plaintiffs have received a substantial amount and are also likely to receive further amount apart from a carpet area of 1500 sq.mtrs. As already stated hereinabove, Mr. Thorat, on the basis of instructions of the Director of Defendant No. 4 who is present in the Court, has made a statement before this Court that the respondent No. 4 is willing and would abide by the terms and conditions of the Development Agreement so also the consent terms. The said statement is accepted as an undertaking to this Court. It can, thus, be clearly seen that the right which has accrued to the respondent No. 4 flows not only from the Development Agreement but also from the consent terms in Suit No. 1321 of 1997 which has received the seal of this court. The question as to whether any sanctity is to be given to the consent terms recorded before this Court, will be gone into at the stage of the trial. At least, prima-facie, the consent terms which have received a seal and approval of this Court cannot be brushed aside or ignored. In that view of the matter, I find that the learned Trial Court has rightly held that the tests of prima-facie case and balance of convenience are in favour of respondent No. 4 rather than the appellants-plaintiffs. It appears that the main grievance of the appellants-plaintiffs is on account of the agreement that the respondent No. 4 has executed with other branch of MP 7 AO1344 their family. If the respondent No. 4, in order to avoid further complications, has settled with the said defendants and had paid them a substantial amount, without in any way, affecting the rights which are agreed to be given to the plaintiffs, the plaintiffs cannot be heard to have any grievance in that regard. Had it been the case of the plaintiffs that due to the said agreement any of the rights which are promised to them are being taken away, in that case, it could have been considered that the plaintiffs have some grievance. The same is not the case. Having received the substantial amount and given an undertaking to this Court to abide by the Agreement for Development, the plaintiffs cannot be permitted to resile therefrom. In any event, even the tests of prima-facie and balance of convenience would lie in favour of respondent No. 4. If an order of injunction was granted, the respondent No. 4 after paying a substantial amount of money, would have been deprived of developing the scheme. On the contrary, the rights of the plaintiffs are fully secured. 10. It is further to be noted that the respondent Nos. 1 and 2 who are the authorities of the State having scrutinized the proposal of respondent No. 4 have passed an order under Section 95-A of the MHADA Act. It is further to be noted that the delay in the implementation of scheme would not only prejudice the rights of the respondent No. 4 but also of the tenants who have already vacated the premises (one year back) and are waiting to get back to the building after reconstruction. 11. As already stated hereinabove, an undertaking is given on behalf of respondent No. 4 before this Court. In any event, even if the appellants-plaintiffs succeed, the loss which could be said to have been caused to them is of such a nature which could be compensated in MP 8 AO1344 monetary terms. In that view of the matter, no case is made out for interference. Hence rejected. 12. In view of disposal of appeal, nothing survives in the civil application. The same is also disposed of accordingly. 13. At this stage, Mr. Godbole, the learned Senior Counsel appearing on behalf of the appellants submits that since the appellants desire to challenge the order in the Apex Court, the parties be directed to maintain status-quo for further period of eight weeks. Shri Thorat, the learned Senior Counsel appearing on behalf of the Respondent No. 4, vehemently opposed this application. 14. In view of the finding of the learned Trial Court that the plaintiff has failed to make out the case for grant of injunction, which has been confirmed by me by the reasons recorded hereinabove, I am of the view that no case is made out for the said prayer. 15. It is further to be noted that under the provisions of Section 95-A of the MHADA Act, unless the respondent No. 4 provides an alternate accommodation to the appellants, they cannot be evicted from the suit premises. The learned Counsel for the respondent No. 4 categorically makes a statement that the alternate accommodation to be provided for the plaintiffs-appellants, has been arranged by the respondent No. 4 a year back, in the same area and for the last one year the respondent No. 4 is paying the rent for the same. In that view of the matter, I find that the interests of the appellants is squarely protected. It is not that as if that if the order of status-quo is not granted, they would come on streets. MP 9 AO1344 16. In that view of the matter, no case is made out for grant of said prayer. Hence rejected. (B.R. GAVAI, J)