- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA WRIT PETITION NO. 471 OF 2003 1. Smt. Sanatana D'Silva 2. Shri Mileno George Travasso 3. Smt. Natty Travasso. 4, Shri Issac Travasso 5. Smt. Sampada Travasso. ... Petitioners. vs. 1. Shri Eduardo Travasso, 2. Smt. Santana C. Travasso. 3. Shri Jose Travasso. 4. Smt. Luciana Travasso. 5. Shri Raymond Travasso. 6. Shri John Travasso 7. Shri Carlos Travasso 8. Smt. Clara Travasso. ... Respondents. Shri Valmiki Menenzes for the petitioners. Shri M.S. Sonak for the respondents. - 2 - CORAM: V.C. DAGA,J. DATE : 23rd August 2006. ORAL JUDGMENT: Heard rival parties. 2. This petition is directed against the order dated 10.9.2003 in Misc.Civil Appeal No. 50 of 2003 passed by the 3rd Additional District Judge, South Goa, Margao, whereby the appeal filed by the respondents came to be allowed and the petitioner- original plaintiffs are restrained by order of temporary injunction from interfering with southern part of Survey No. 57/1,whereas with respect to the northern part of survey No. 57/1 admeasuring 9860 sq. mars. the order of the trial Court came to be confirmed. 3. In this petition filed under Article 227 of the Constitution of India, petitioner is challenging impugned order to the extent it restrains the petitioner from interfering with Southern side of survey No. 57/1. 4. Learned Counsel appearing for the petitioner at the outset submits that in the absence of counter-claim it was not open for the defendants- respondents herein to move an application under Order 39 Rules 1 & 2 to seek injunction as prayed. He further submits that in view of the settled legal position of law, the defendants can pray - 3 - for injunction without filing counter-claim, provided prayer for interim injunction does not travel beyond the provision of O.39 R.1(a) of the Code of Civil Procedure, 1908. In support of this submission, reliance is placed on the judgment of this Court in the case of Guno Pandiyar vs. Dwarkabai Padiyar 2003 (1) G.L.T. 55,; Nanasaheb s/o Sakharam Bhalekar vs. Dattu s/o Dhoindiba Bhalekar, 1991 Mh.L.J. 685 and order passed by this Court in the case of Jyoti Homemakers Pvt. Ltd/. vs. Gondhalekar Holdings, in Appeal from Order No. 410 of 1996 dated 14.7.1998 (unreported). 5. Learned Counsel for the petitioner also tried to contend that the defendants have not established prima facie case, balance of convenience; and the legal injury which they are likely to suffer. It is further submitted that so far as application under O. 39 R. 1 & 2 is concerned, there is absolutely no material pleadings that the property in dispute/ in suit is in danger of being wasted, damaged or alienated so as to bring relief claimed within the sweep of Order 39 Rule 1(a) of C.P.C. In his submission, prayer made in the application under O. 39 R. 1 & 2 is essentially referable to the provisions of O.39 R.1 (b) as such prayer cannot be said to be within the sweep of clause (1) (a) of Order 39 of the CPC. He, thus, submits that the application itself was not maintainable as such impugned order suffers from material error of jurisdiction and the same is liable to be set aside. - 4 - 6. Shri Sonak, learned Counsel appearing for the respondents, while supporting the impugned order, submitted that in view of the 3 judgments referred to above, application under O. 39 R.1 & 2 was itself very much maintainable. He tried to relate impugned interim order with the provision of O. 39 R.1(a) of CPC; so as to save the impugned order from the axe of this Court. 7. Having heard rival parties and having examined the pleadings incorporated in the application filed under O.39 R.1 & 2 of the CPC; the submissions made by the learned Counsel for the petitioners deserve acceptance. The defendants did not file counter-claim is an admitted position. In order to find out as to whether application under O. 39 Rule 1(a) of the CPC is maintainable one has to turn to provisions of O.39 Rule 1(a) of the CPC which reads as under: “ That the property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree.” In the light of the above provision, if one turns to prayer clause incorporated in the application under O. 39 R. 1 & 2, the same reads as under: “Pending the hearing and final disposal of the suit, by way of an order of temporary injunction of this Hon'ble Court the Opponents/Plaintiffs, their agents, - 5 - servants, family members etc. be restrained from interfering in any manner, with the Southern portion of the of the suit property shown in plan A-B-C-D-E-F-A of inspection report dated 02-04-2003.” The above prayer clause can hardly be said to be within the sweep of Order 39 Rule 1(a) of CPC. It can only be related to clause 1(b) and (c) of rule 1 of order 39 of CPC. 8. The suit relates to the property being Survey No. 57/1 having total area of about 17300 sq. mtrs. If one turns to application for temporary injunction moved by the petitioner, para 7 thereof alone cannot be considered to bring application for injunction within the sweep of clause 1(a) of order 39 of CPC. There are hardly any allegations in the pleading with respect to property in dispute facing any danger of being wasted, damaged or alienated by any party. What is claimed in the application for injunction is restrainment of the plaintiffs from interfering with in any manner whatsoever with Southern part of the suit property. This relief is essentially referable to clauses (b) and (c) and is beyond the scope of clause (a) of rule 1 of order 39 of C.P.C. 9. In the above view of the matter, application moved by the defendant itself was not maintainable. Since non- maintainability of the application itself is upheld; it is not necessary to dwell upon the merits of the contentions raised by the parties. - 6 - 10. Needless to mention that looking to the age of the suit, the trial Court is directed to dispose of the suit as expeditiously as possible, at any rate within one year from the date of receipt of copy of this order. 11. In the result, the impugned order is set aside. Application under O.39 R.1 of the CPC moved by the defendant is dismissed as not maintainable. Rule is made absolute in terms of this order. No order as to costs. (V.C. DAGA, J.) swk/-