1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.398 OF 2011 1. Shri Jose Pereira, age 66 years 2. Smt. Claffie Pereira, age 53 years, Both residing at House No.C-4, 162/1, Behind Peoples High School, Mala, Panaji-Goa. 3. Shri Abel Pereira, Age 55 years, Through his Attorney Shri Manuel Rodrigues, Residing at Sahil Manzil, House No.755/9, Flat No.6, Near London Hotel, St. Mary's Colony, Miramar, Panaji Goa. 4. Shri Ryan Pereira, Age 32 years, Residing at Flat No.3, Pereira Building, St. Inez, Panaji Goa. …. Petitioners V/s 1. Shri Cajetan D'Souza 2. Shri Agnelo D'Souza (since deceased) 3. Smt. Elizabeth D'Souza, All major in age, Residing at Flat No.4, Pereira Building, St. Inez, Panaji Goa. …. Respondents Shri V.P. Thali, Advocate for the Petitioners. Shri Rohit Bras De Sa, Advocate for the Respondents. 2 CORAM : F.M. REIS, J. DATE : 11th NOVEMBER, 2011 JUDGMENT : Heard Shri V.P. Thali, learned Counsel appearing for the petitioners and Shri Rohit Bras De Sa, learned Counsel appearing for the respondents. 2. Rule. Heard forthwith with the consent of the learned Counsel. Shri Rohit Bras De Sa, learned Counsel appearing for the respondents waives service. 3. The above petition challenges the judgment passed by the lower Appellate Court dated 2/02/2011 passed in Misc. Civil Appeal No.175/2009, whereby the appeal preferred by the petitioners was partly allowed and the petitioners were restrained from carrying out construction in the suit property, whereas the remaining part of the judgment passed by the learned trial Judge came to be set aside. In the present petition, the petitioners challenge only the part of the judgment restraining the petitioners from carrying out any construction in the suit property. 3 4. Shri V.P. Thali, learned Counsel appearing for the petitioners has assailed the impugned judgment on the ground that the lower Appellate Court while passing the impugned judgment has misconstrued the lease agreement dated 18/05/2005 at para 23 of the impugned judgment whereby the learned Judge has gone on the assumption that as per the lease agreement there was no permission granted to the petitioners to carry out construction of the suit portion of the property. Learned Counsel further submitted that as per the lease agreement there was express permission granted to the petitioners to carry out the construction. Learned Counsel further submitted that in view of the said misconstruction of the agreement, the learned Judge has erroneously appreciated the evidence on record and has passed the impugned judgment restraining the petitioners from carrying out any construction in the suit property. Learned Counsel, as such, submitted that the said impugned portion of the judgment restraining the petitioners from carrying out any construction deserves to be quashed and set aside. 5. On the other hand, Shri Rohit Bras De Sa, learned Counsel appearing for the respondents has pointed out that the petitioners 4 have suppressed the fact from this Court and, as such, the petitioners are not entitled for any relief. Learned Counsel further pointed out that the lease agreement on which the petitioners are resting their claim has been disputed by the respondents as according to the learned Counsel the document is void. Learned Counsel further pointed out that the suit portion which has been leased to the petitioners is appurtenant to their residence and, as such, according to him the question of carrying out any construction in the suit portion of the property does not arise at all. Learned Counsel further pointed out that considering the conduct of the petitioners they are not entitled for any relief in exercise of jurisdiction under Article 227 of the Constitution of India. Learned Counsel further submitted that, as such, no interference is called for in the impugned judgment and the petition deserves to be rejected. 6. Upon considering the submissions of the learned Counsel and on going through the records, Shri Thali, learned Counsel appearing for the petitioners is justified to contend that the lower Appellate Court whilst passing the impugned judgment has misconstrued the lease agreement in holding that there was no 5 permission granted to the petitioners to carry out any construction in terms of the lease agreement. 7. On perusal of the lease agreement, prima facie, it appears that such permission was granted, but however whether on the basis of the said lease agreement the petitioners can be allowed to carry out any construction is a matter which has to be adjudicated by the lower Appellate Court after hearing both the parties in accordance with law. Considering that the impugned judgment is passed by misreading the evidence on record, I find that in the interest of justice, it would be appropriate the Misc. Civil Appeal be decided afresh to the extent impugned in the present petition referred to above. The remaining portion of the impugned judgment is not under challenge in the present petition by any of the parties in the present petition. But however, the question as to whether the petitioners have to be injuncted in the manner directed by the impugned judgment will have to be re-examined by the lower Appellate Court after hearing both the parties. Learned Counsel further submitted that the petitioners should be directed to maintain status quo, but however, Shri Thali fairly pointed out that such relief does not arise as the injunction granted by the learned 6 trial Judge to the extent restraining the petitioners from carrying out construction shall operate until the appeal is disposed of by the learned District Judge, though the said portion is assailed by the petitioners before the lower Appellate Court. 8. In view of the above, I pass the following order: O R D E R (i) The impugned portion of the judgment dated 2/02/2011 is quashed and set aside. (ii) The learned Additional District Judge at Panaji is directed to decide the said appeal afresh in the light of the observations made herein above, after hearing both the parties in accordance with law. All contentions of the parties with that regard are left open. (iii) The learned Additional District Judge is directed to decide the Misc. Civil Appeal afresh as expeditiously as possible. (iv) The parties are directed to appear before the learned Additional District Judge on 5/12/2011 at 10.00a.m. (v) Rule is disposed of in the above terms. (vi) Petition stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-