1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.144 OF 2009 1. Shri Dnyaneshwar Pandurang Nagvekar, major in age, married, retired and his wife, 2. Smt. Subhadra Dnyaneshwar Nagvekar, Major, married, housewife, Both r/o H.No.88E/3, Vodacho Vaddo, Bordem, Bicholim-Goa. …. Petitioners V/s 1. Smt. Jyoti Prakash Nagvekar, Major in age, married, housewife, Daughter of late Savlo Mapari, r/o House No.1069, Nom Wado, Anjuna, Bardez-Goa. 2. Shri Prakashj Babal Nagvekar, Major in age, married, tailor, r/o House No.1069, Nim Wado, Anjun, Bardez-Goa. …. Respondents Mr. A.D. Bhobe, Advocate for the Petitioners. Mr. V. Menezes, Advocate for Respondent No.1. CORAM : N.A. BRITTO J. DATE : 9th JUNE, 2010 JUDGMENT: Rule. By consent, heard forthwith. 2. The petitioners herein are the defendants nos. 1 & 2 in Regular Civil Suit No.226/2004/C and herein after shall be referred to as such. In this Writ Petition they have assailed the order dated 30/06/2008 of the 2 learned Civil Judge, Junior Division. 3. Defendants nos.1 & 2 claim a right to the suit property by virtue of gift deed dated 17/03/1999. The plaintiffs filed the suit for declaration that the said gift deed is null and void and also for permanent injunction to restrain the defendants from interfering in the suit paddy field. Plaintiffs' application for temporary injunction came to be disposed of by order dated 4/11/2006. By virtue of the said order it was held that defendants nos.1 & 2 had prima facie shown that they were in possession of the said paddy field. It was also held that the pump house was constructed by them. However, defendants nos.1 & 2 were directed to maintain status quo in respect of the suit property until the disposal of the suit. That order was not challenged by any of the parties. 4. The defendants nos.1 & 2 thereafter filed an application dated 6/09/2007 purporting it to be an application under Section 151 CPC pleading that they had constructed the pump house in the suit property and that they had applied for electricity connection for the said pump house in the suit property so as to enable them to water the plants in the suit property as it was cumbersome exercise to water the said plants by drawing water from well which was constructed by the defendants. 3 5. The said application came to be dismissed by the learned Civil Judge Junior Division by order dated 30/06/2008 which is under challenge in the present writ petition. 6. Shri Bhobe, the learned Counsel, on behalf of the petitioners/defendants nos.1 & 2 submits that there is a prima facie finding given by the Court that the defendants nos. 1 & 2 are in possession of the suit property and that they have constructed a pump house, a well and a boundary wall. Learned Counsel further submits that there is no dispute that there is plantation. Shri Bhobe further submits that in case the plantation is watered by electric pump it can cause no prejudice to the plaintiffs or the defendant no.3 who has also objected to the application filed by the defendants nos.1 & 2. Counsel submits that the defendants nos.1 & 2 could be put to terms as deemed fit. 7. Shri Menezes, the learned Counsel on behalf of the plaintiffs submits that by the said application what the defendants nos.1 & 2 did was to ask for modification of the order dated 4/11/2006 in terms of Rule 4, Order 39, CPC which on the facts of the case was not permissible. Learned Counsel further submits that the circumstances pleaded by defendants nos. 1 & 2 were existing at the time of passing the order dated 4/11/2006 and in fact by the said application dated 4 6/09/2007, the defendants nos.1 & 2 were only seeking for modification of the order. 8. In my view, the learned trial Court does not seem to have exercised her discretion, in passing the impugned order, correctly. The defendants nos.1 & 2 were held to be in possession of the suit property by virtue of the order of injunction previously passed, but they were directed to maintain status quo. In their application dated 6/09/2007, the defendants nos.1 & 2 had sought leave of the Court to enable them to obtain an electric connection to the pump house which was built by them and in the facts of the case therefore, such an application ought to have been granted by the learned trial Court, subject to the result of the suit, as granting such an application would not have caused any prejudice either to the plaintiffs or defendant no.3. Once the defendants nos.1 & 2 were held to be in possession of the suit property, permitting them to obtain an electric connection to the existing pump house built by them would not amount to any modification of the earlier order passed. At the most, the filing of the applicant might have become necessary because of the order of status quo. 9. It appears that the plaintiff on or about 19/01/2007 had filed an application for contempt against defendants nos.1 & 2 but the same has been dismissed, as informed by learned advocate Shri Bhobe. 5 10. Consequently, this writ petition succeeds. The impugned order dated 30/06/2008 is hereby set aside and the defendants nos.1 & 2 are held entitled to obtain a electricity connection for the pump house existing in the suit property. It is made clear that the said electricity connection shall be used by defendants nos.1 & 2 for the purpose of watering the plants and for no other purpose subject to the result of the suit. Rule made absolute on the above terms. In case the defendants do not succeed in the suit they shall disconnect the electricity connection at their own costs. Rule made absolute on the above terms with no order as to costs. N.A. BRITTO, J. NH/-