1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.595 OF 2010 1. Shri Joseph John Fernandes @ Shanu Joseph Fernandes, s/o late Vitorino Fernandes, major in age, married, driver, 2. Mrs. Rachil @ Rachel Fernandes, w/o Shri Joseph Fernandes, major of age, married, house wife Both Indian National, residing at H.No.238, Agarwado, Calangute Bardez Goa. .. Petitioners . Versus Shri Mario Isac Fernandes s/o late Libano Gerus Martinho Fernandes, major of age, unmarried, services, Indian National, near Kamat Building, residing at H.No.217, Gaura Wado, near Kamat Building, Calangute, Bardez, Goa .. Respondent (Cause title as per the plaint) Correct Registered address for the purpose of service : 1. Shri Joseph John Fernandes @ Shanu Joseph Fernandes, s/o late Vitorino Fernandes, major in age, married, driver, 2. Mrs. Rachil @ Rachel Fernandes, w/o Shri Joseph Fernandes, major of age, married, house wife Both Indian National, residing at H.No.217, Santana Bar, Gaura Wado, Calangute, Bardez Goa. .. Petitioners . Versus Shri Mario Isac Fernandes 2 s/o late Libano Gerus Martinho Fernandes, major of age, unmarried, services, Indian National, near Kamat Building, residing at 1/158B,GF-1, Naroo's Building, Next to St. Anthony Chapel, Calangute, Bardez, Goa .. Respondent Mr. S. D. Lotlikar, Senior Advocate with Mr. G. Teles, Advocate for the petitioners. Mr. A. D. Bhobe with Mr. B. Sardessai, Advocates for the respondent. Coram :- A. P. LAVANDE, J. Reserved on : 14 th December, 2010 Pronounced on : 23 rd December, 2010 ORDER : Heard Mr. Lotlikar, learned Senior Counsel for the petitioners and Mr. Bhobe, learned Counsel for the respondent. 2. By this petition under Article 227 of the Constitution of India, the petitioners challenge the orders dated 27th July, 2010 passed by the Ad hoc District judge, Mapusa in Miscellaneous Civil Appeal No.95/2010 dismissing the appeal filed against the order dated 31st March, 2010 passed by the Civil Judge, Senior Division, Mapusa, 'C' Court in Special Civil Suit no.122/2009/C whereby the application 3 for temporary injunction filed by the respondent was granted. The petitioners are also challenging the order dated 6th May, 2010 passed by the Civil Judge, Senior Division, Mapusa granting police protection under Section 151 of Civil Procedure Code, 1908. 3. The petitioners are the defendants and the respondent is the plaintiff in the above suit. The parties shall hereinafter be referred to as per their status in the trial Court. 4. The plaintiff, who is the step-brother of petitioner no.1 filed the above suit seeking relief of permanent injunction against the defendants from in any manner trespassing and interfering with the suit plot or the suit structures or taking forcible possession thereof and further obstructing the plaintiff and his sister from using and enjoying the suit plot and the suit structures. The trial Court granted ex-parte injunction on 18th August, 2009. Reply was filed on behalf of the defendants on 22nd December, 2009. However, neither documents were relied nor annexed along with the reply. On 12th March, 2010, the written statement along with documents relied upon were filed by the defendants. However, the record does not disclose that list 4 of documents was annexed to the written statement. On 20th October, 2009, the plaintiff alleging dispossession inspite of ex-parte injunction filed an application under Section 151 of C.P.C. seeking police, which was granted by the trial Court by order dated 6th May, 2010. The trial Court confirmed the ex-parte injunction by order dated 31st March, 2010. The defendants preferred an appeal to the District Court, which was made over to Ad hoc District and Assistant Sessions Judge, Fast Track Court, Mapusa. During the pendency of the appeal, status-quo order was passed. The lower appellate Court by the impugned order dated 27th July, 2010 dismissed the appeal confirming the order passed by the trial Court. 5. Challenging both these orders as well as the order passed by the trial Court granting police protection, the defendants have filed the present writ petition under Article 227 of the Constitution of India. During the pendency of this petition, this Court on 6th August, 2010 granted stay of the order granting police protection. 6. Mr. Lotlikar, learned Senior Counsel for the petitioners/ defendants submitted that filing of the suit and application for temporary injunction by the plaintiff is 5 nothing but an abuse of process of the Court since the defendants were in possession of the suit plot and as such, both the Courts below could not have granted injunction thereby dispossessing the defendants from the suit plot and the suit structures. He further submitted that the trial Court has not at all considered the documents produced by the defendants while considering the application for temporary injunction. He further submitted that the defendants were in possession of the suit plot and the suit structures on the date of the institution of the suit. This being the position, they have not committed any contempt of the Court since the impugned orders have been obtained by the plaintiff by practising fraud on the Court. He further submitted that the lower appellate Court has not considered the documents produced by the defendants in proper perspective and the reasons given by the lower appellate Court for not placing reliance upon the documents such as copies of passport, ration card, driving license, electoral roll etc. are patently unsustainable in law. According to learned Senior Counsel, the record clearly discloses that the defendants were in possession of the suit plot and the suit structures on the date of the institution of the suit and, therefore, this Court should exercise jurisdiction under Article 227 of the Constitution of India to protect the interest of the defendants. Mr. Lotlikar 6 further submitted that the trial Court ought not to have granted police protection to the plaintiff for enforcement of the ex-parte injunction order thereby virtually directing dispossession of the defendants from the suit plot and suit structures and, therefore, he submitted that the said orders deserve to be quashed and set aside. In support of his submissions, Mr. Lotlikar relied upon the unreported judgment dated 21 st October, 1988 in L.P.A. No.21/1987 delivered by this Court in the case of The Goa Urban Co0operative Bank Ltd. Vs. M/s. Nizari Builders and 3 Others. 7. Per contra, Mr. Bhobe, learned Counsel appearing for respondent / plaintiff submitted that both the Courts below have correctly appreciated the materials on record and have passed the impugned orders. He further submitted that at the time of filing reply to the application for injunction, defendants did not place on record any documents in support of their case and, therefore, rightly, the trial Court did not consider the documents produced along with the written statement. Mr. Bhobe made a grievance that the trial Court permitted the defendants to place on record the written statement on 12th March, 2010 i.e. much beyond the period of 90 days provided under Order VIII, Rule 1, C.P.C. 7 without an application. He further submitted that the trial Court ought not to have permitted the defendants to file the written statement beyond the period of 90 days without any exceptional case having been made out by the defendants and that too without even an application being filed seeking leave to produce the written statement. 8. Mr. Bhobe further submitted that the defendants have dispossessed the plaintiff inspite of an ex-parte order of injunction and, therefore, the trial Court was justified in granting police protection to the plaintiff. In support of his submissions, learned Counsel relied upon the judgments in the case of Municipal Council, Shirdi Vs. Soniya Patil; 2009 (2) All M R 847 and Kailash vs. Nanhku and Ors; 2005(5)All MR (S.C.) 689. 9. I have considered the rival submissions and perused the record and the judgments relied upon. 10. It is well settled that under Article 227 of the Constitution of India, this Court exercises limited jurisdiction to ensure that the lower appellate Courts and Tribunals function within the limits of their jurisdiction. 8 11. It is also well settled that the appeal against the order of injunction granting or refusing an injunction is appeal on principle and unless the order passed by the trial Court is patently perverse or illegal or discretion has been exercised perversely, no interference is warranted in such appeal. 12. Perusal of the record discloses that along with reply to the application for injunction, the defendants did not file any documents. It was only on 12th March, 2010 along with the written statement that the defendant chose to produce certain documents. I fail to understand as to how the trial Court could have permitted the defendants to file the written statement beyond the period of 90 days even without an application having been filed seeking leave to file written statement giving cause for filing written statement beyond the period of 90 days. This being the position, I do not find any error having been committed by the trial Court in not referring to the documents produced by the defendants along with the written statements and that too without seeking leave to file written statement beyond the period of 90 days. No doubt, the lower appellate Court has considered the documents. In my considered opinion, the reasons given by the lower appellate Court for not placing 9 reliance upon the said documents in support of the case of the defendants cannot be said to be perverse warranting interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. Admittedly, the title in respect of the suit plot is vested with the plaintiff pursuant to gift deed executed by his mother. No doubt, the said gift has been challenged by the defendants, but the challenge will have to be decided on the basis of evidence which would be led during the trial. 13. In view of the above, I do not find any ground to interfere with the order granting injunction by the trial Court which has been confirmed by the lower appellate Court. There is one more reason for this Court not to interfere with the impugned orders. Inspite of the order passed by the lower appellate Court granting injunction in favour of the plaintiffs, it is the case of the defendants that they continue to be in possession of the suit house existing in the plot. I am unable to accept the submission of Mr. Lotlikar that this Court should exercise jurisdiction under Article 227 at the instance of the petitioners, who claim that inspite of the order of injunction passed by the lower appellate Court, they continue to be in possession. If such an argument is accepted, the same would result in granting relief in favour 10 of the petitioners who on their own showing have not complied with the impugned orders. Once the lower appellate Court, upon appreciation of the materials placed on record, has come to the conclusion that the plaintiff was in possession of the suit plot and suit structures and grants injunction, unless the order of stay is obtained, in my considered opinion, the party against whom order is confirmed by the lower appellate Court would not be in a position to contend that notwithstanding such an order he continues to be in possession unless order of stay is obtained from the lower appellate Court. On this ground also I am not inclined to interfere with the impugned orders granting injunction in favour of the respondents. 14. In so far as the order granting police protection is concerned, since both the Courts have held that plaintiff has been in possession of the suit plot and the suit structures, I do not find any infirmity or jurisdictional error having been committed by the trial Court in granting such relief. In any case, having come to the conclusion that the defendants continue to be in possession inspite of an order passed by the lower appellate Court confirming injunction granted by the trial Court, I do not deem it appropriate to interfere with the order dated 6th May, 2010 granting police 11 protection to the plaintiff. 15. In view of the above, I do not find any ground to interfere with the impugned orders. Hence, the petition is dismissed with costs, which are quantified at Rs.1,500/- A. P. LAVANDE, J. SMA