1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 460 OF 2009 1. Caitano J. D. F. S. R. Mendonca Major, married and his wife 2. Smt. Gertrudes D. J. Silva, Major, married, housewife, Both residing behind Dr. Shirsat Hospital, Tisk, Ponda- Goa. .. Petitioners Versus 1. Dr. Shashikant Shirsat, Major, married, Medical Practitioner, Residing at Tisk, Ponda, Goa 2. Ponda Municipal Council, A body constituted under the Goa, Daman & Diu Municipalities Act, 1968, Through its Chief Officer, Having office at Ponda-Goa. .. Respondents Mr. A. D. Bhobe,Advocate for the petitioners. N. K. Sawaikar,Advocate for the respondent No.1. CORAM :- U. D. SALVI, J. DATE : 6 th August, 2010. ORAL JUDGMENT : Hd. Rule returnable forthwith. By mutual consent, taken up for final hearing. 2. The dispute arose as a result of preparation for 2 construction made by the petitioners/ defendants and consequent erection of two RCC pillars in the suit plot within 5 meters set back from the building of co-ownership of the petitioners and the respondent No.1 standing on the suit plot. The respondent No.1,therefore, instituted a suit for mandatory injunction directing the petitioners/ defendants to demolish or cause to be demolished whatever construction undertaken in the suit plot described in paragraph no. 1 of the plaint and shown in Exh.A annexed to the plaint and within set back area; and restore the land thereunder to its original nature. Essentially, therefore, the lis was regarding the erection of two RCC pillars within the set back area in the suit plot. 3. The Court Commissioner- Architect Sukhtankar visited the site and drew a plan showing the location of the RCC columns at the site and marked the boundary of the suit plot. Eventually the RCC Columns were removed by the petitioners and there is no dispute regarding the said fact. 4. Thereafter, the petitioners moved an application before the trial Court seeking dismissal of the suit on the ground that the grievance made by the respondent No.1 plaintiff no more survives with the removal of the said RCC 3 columns. It appears that at paragraph no.9 of the said application the petitioners/ defendants pleaded that Article 2314 of Portuguese Civil Code is not repealed and as such they are entitled to have their construction up to the boundary line of the said plot provided that it is between the dead wall. This perhaps evoked the resistance to the application from the respondent No.1. The respondent No.1 pleaded that the defendants were not entitled to undertake construction within the set back area violating the building regulations and, therefore, the application needs to be dismissed with costs. 5. The learned Civil Judge, J.D., Ponda after hearing the parties passed the impugned order dated 19th May, 2009 rejecting the plea for dismissal of the suit- RCS No.36/2007. The learned Civil Judge observed that the issues remained to be decided in the said suit and, therefore, the lis continues to survive for the following reasons: “Now, the defendants claim to have removed those 'columns'. However, the injunction inter alia is being sought to remove the construction undertaken within a distance of 8 meters in view of the fact that there is no dead wall.” However, a statement is made on behalf of the petitioners that there is no dead wall along the boundary separating the suit plot and 4 the plot in occupation of the petitioners as the owners thereof; and the petitioners undertake not to construct the dead wall without permission from the local authorities. It is further clarified by the petitioners that there is no construction activity undertaken in the suit plot and they shall not undertake any construction activity within the suit plot as demarcated by the Court Commissioner – Architect Sukhtankar. 6. Essentially, it is revealed from the perusal of the plaint and the Exh.A annexed thereto that the suit pertains to construction undertaken by the defendant Nos. 1 and 2 within the area of suit plot, particularly within the set back area from the building standing on the suit plot. In view of the statements made, undertaking given and the nature of the suit revealed from the plaintiff, it can very well be seen that the cause for continuation of the said suit no more exists. 7. In view of the aforesaid observations, rule is made absolute in terms of prayer clause (a) with no orders as to costs. U. D. SALVI, J. SMA 5