1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.180 OF 2008 IN NOTICE OF MOTION NO.4527 OF 1991 IN SHORT CAUSE SUIT NO.4869 OF 1991 Union of India .... Appellant Vs. Stanley Joseph Creado & Ors. .... Respondents Mr. Rajguru with Ms. Nisha Valani Advocate for Appellant. Mr. Niranjan Pandit i/by M/s Purohit & Purohit for respondents. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 16th October, 2008 P.C. 1. By this Appeal, the appellant-Union of India challenges the correctness and legality of interim order dated 2nd September,2004 passed by Bombay City Civil Court. The appeal was filed after considerable delay i.e. in January, 2006. The delay was condoned on 15th February, 2008 and a couple of dates thereafter, the appeal is taken up for admission. 2. In June,1991, the appellants filed the suit herein for permanent injunction simplicitor to restrain the respondents from putting up any construction work on the suit plot of land and from putting any barbed wire 2 fencing around the same and/or dealing with or disposing off the suit property. The second prayer sought by the appellant is of a mandatory injunction directing the respondents to remove barbed wire fencing put up by them around the suit land. After filing of the suit, the appellant had made an application for ad-interim reliefs which was rejected on 2nd August,1991. In that order, the learned Judge has raised a doubt about maintenability of a suit simplicitor for injunction. Thereafter the appellant had tried to amend the plaint in order to seek several substantive reliefs. That application was rejected with an observation that the appellant needs to file an independent substantive suit for the purpose. However, no such suit has been filed till date. The appellant's case is that the suit property admeasuring 6868 square yards equivalent to 5742.33 square meters situate at Survey No.39, Hissa No.3, City Survey No.511, Juhu, Bombay is jointly owned by it along with the respondents. On the basis of the claim of joint ownership, it seeks the reliefs of permanent injunction described above. The learned Judge in the impugned order observes that there could be no injunction granted against the co-owner. Further according to him, the suit for injunction simplicitor, in the facts of the case is not maintainable. He has 3 also taken a note of the fact that the construction alleged on the part of respondents is pursuant to the permission granted by appropriate authorities. 3. Mr.Rajguru, the learned counsel for the appellant now seeks to contend that the appellant is in fact the exclusive owner of the suit property and not the joint owner as avered in the plaint. Therefore, according to him, the appellants are entitled to get the relief of injunction sought by it. Since the claim in the plaint is of joint ownership, no deviation therefrom can be allowed at the appellate stage without amendment of the plaint. As rightly held by the learned Judge, the respondents have been given permission by the appropriate authorities for the purpose of construction. The appellants do not seek any relief as regards that permission. Since the respondents are the joint owners of the land and are carrying out the work of construction pursuant to the permission granted to them by the appropriate authorities, there could be no relief of injunction restraining such construction. As regards the mandatory order directing the respondents to remove the fencing around the suit property, the same cannot be considered at the interim stage particularly when the plaint contains no particulars whatsoever as to when 4 that work was commenced and completed by the respondents. In these circumstances, the impugned order need not be interfered with. Hence, Appeal from Order is dismissed in limine. 4. Mr.Rajguru makes an application that respondents be directed to maintain status-quo in respect of the suit property as it exists today. The application is rejected. (SMT. R.P. SONDURBALDOTA,J) 5