IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 3720 OF 2008 WRIT PETITION NO. 3720 OF 2008 WRIT PETITION NO. 3720 OF 2008 Mr.Uttam N. Kalamkar and others. ... Petitioners. V/s. Mr.Pradeep G. Kumar. ... Respondent. Tejas Deshpande for the petitioners. R.A.Thorat for the respondent. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 20th February 2009. DATED: 20th February 2009. DATED: 20th February 2009. P.C.: P.C.: P.C.: ---- ---- ---- . Heard learned counsel for the petitioners and learned counsel for the respondent. Perused petition. 2. This petition is directed against the judgment and order dated 7th May, 2008 passed by the District Judge, Prune in Misc. Civil Appeal No.56/2008, whereby and whereunder the order dated 5th February, 2008 passed below Exhs.5, 25 and 29 in Regular Civil Suit No.354/2005 by the Fifth Joint Civil Judge, Senior Division, Pune came to be confirmed. Factual Matrix : Factual Matrix : Factual Matrix : -------------- -------------- -------------- 3. The factual matrix reveals that the petitioner No.1 is the Power of Attorney holder of Mr.Uttam N. Kalamkar and others. The dispute relates to the land located at serial No.87, Baner, Pune ("suit land" for short). 4. It appears that originally, the suit property was the property of the Kalamkar family. Some time in the year 1994, by a registered partition deed, the said property came to be divided in to three parts. Mr.Jaywant and Mr.Uttam Kalamkar owned the adjoining plots. Both of them intended to sub-divide their plots and sell such sub-divided plots to various interested persons. It appears that in order to provide access to the prospective owners of the plots, both brothers agreed to leave road admeasuring 4.5 mts. from their individual property on the common side of the plot. 5. It appears that Mr.Uttam Kalamkar executed Power of Attorney in favour of present respondent (original plaintiff) for an area of 36 R. It further appears that both the brothers developed layout having 9 plots and sold 8 plots to various owners. The sale-deeds executed by them makes a reference to a common road admeasuring 3 mts. Mr.Uttam Kalamkar - 3 - appears to have executed sale-deed on 24th May, 1994 in favour of the original plaintiff for the common road located in his property. In the meanwhile, it appears that one Mr.Wani claiming to be the Power of Attorney holder of the petitioner acquired right and title over all the eight plots. It further appears that Jaywant Kalamkar executed Power of Attorney in favour of Mr.Wani for development of their plots. While he was taking steps to develop plots the present respondent has filed present suit on 13th March, 2006 claiming ownership on common road passing through the property of Mr.Uttam Kalamkar being pot No.9 and filed three applications for interim reliefs. The said applications were resisted by the present petitioners by filing written statement. The interim prayer made reads as under: "The Hon’ble Court may please be restrained the Defendant or their agents, assignees, nominees, officers, servants or any person claiming through them from the obstructing the peaceful possession of the Plaintiffs and/or carrying out any construction upon the suit property by an order of Temporary Injunction." 6. The trial Court after having heard both parties, vide its order dated 5th February, 2008, has granted injunction restraining the present petitioners - 4 - from proceeding with the construction till the disposal of the suit. 7. Being aggrieved by the aforesaid order dated 5th February, 2008, the petitioners have preferred Misc.Civil Appeal No.56/2008 before the learned District Judge, Pune who was pleased to confirm the order of the trial Court by his judgment and order dated 7th May, 2008. 8. Being aggrieved by the aforesaid judgment and order, the petitioner has filed present petition under Article 227 of the Constitution of India. Submissions : Submissions : Submissions : ----------- ----------- ----------- 9. The learned counsel appearing for the petitioners contents that the impugned order proceeds on erroneous footing. In his submission, sale deed of one property was produced on record by the plaintiff to establish ownership on the adjoining different properties. That the Courts below have failed to take into account mathematical calculations placed by the petitioners to demonstrate that the claim made in the plaint by the plaintiff is erroneous. - 5 - 10. The learned counsel for the petitioners has also filed detailed chart giving mathematical calculations supported by sketch map in order to demonstrate that the respondent/ original plaintiff has no right, title and interest in the suit property. He has also successfully demonstrated some misstatements made by the plaintiff before the lower appellate Court. Based on this, he contends that the respondent has not approached the trial court with clean hands, the injunction granted by the trial Court ought to have been vacated by the lower appellate Court. He submits that, at any rate, this Court in exercise of writ jurisdiction should set aside the impugned orders of the courts below. 11. The aforesaid submissions made by the petitioner were countered by the learned counsel appearing for the respondent contending that though there are some minor discrepancies in the measurements but they were out of bonafide mistake. The figures disclosed before the Courts did not change the colour of the findings given by the trial Court. There was no intention to take undue advantage from those - 6 - mistakes or incorrect figures. He submits that even if those figures are excluded, nothing turns in favour of the petitioners. He further reiterates that the mistake, if any, has to be treated as bonafide mistake. 12. Learned counsel for the respondent further submits that the lower appellate Court has already expedited the suit with direction to dispose it of within a period of six months from the date of the order as such it would always be in the interest of justice that the suit itself is decided with expeditious despatch. He further submits that if the injunction is vacated and the petition is allowed to proceed with construction, in that event, development of the suit property may reach to irreversible situation. He, thus, submits that in order to protect the suit property, it is necessary to maintain the impugned orders in which reasonable and possible view is taken by the courts below. He also urged that findings of fact recorded by both the courts below cannot be disturbed by this Court in its writ jurisdiction under Article 227 of the Constitution of India unless each of them is held to be perverse or without foundation. - 7 - 13. In rejoinder, leaned counsel for the petitioner urged that because of the injunction, his development and construction work has held up. With the result, the petitioners are suffering heavy losses. Consideration : Consideration : Consideration : ------------- ------------- ------------- 14. Having heard rival contentions, the submission made by leaned counsel for the respondent needs acceptance in view of the law laid down by the Apex Court in the case of Gangubai v. Sitaram Gangubai v. Sitaram Gangubai v. Sitaram, AIR 1983 SC 742; wherein the Apex Court held that injunction to prevent construction on suit land is normally justified otherwise, the situation might become irreversible by the time suit is decided, if the injunction is not granted. Following the law laid down by the Supreme Court referred to herein, the emergence of irreversible situation because of the construction or development of the property cannot be permitted during the pendency of the suit, as such no fault can be found with the view taken by both the Courts below while granting injunction to prevent development of the suit property. - 8 - 15. At this juncture, the submission made by learned counsel for the petitioners also needs to be taken into account that the petitioners would suffer heavy losses if the development and construction on the suit property is prevented. As such it is necessary to suitably modify the order of injunction in the light of the Apex Court judgment in the case of Mahadev Savlaram Shelke v. Pune Municipal Mahadev Savlaram Shelke v. Pune Municipal Mahadev Savlaram Shelke v. Pune Municipal Corporation Corporation Corporation, (1995) 3 SCC 33; wherein the Apex Court ruled as under: "Injunction normally is asked for and granted to prevent the public authorities or the respondents from proceeding with the execution of or implementation of any scheme of public utility or contracts granted for execution thereof. Public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction. While exercising discretionary power, the court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction has also jurisdiction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining the defendant to proceed with the execution of the work etc. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental - 9 - to the determination of the case by the court. The pecuniary jurisdiction of the court of first instance should not impede nor be a bar to award damages beyond its pecuniary jurisdiction. In this behalf, the grant or refusal of damages is not founded upon the original cause of action but the consequences of the adjudication by the conduct of the parties, the court gets inherent jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. It is common knowledge that injunction is invariably sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the court of first instance, may be, for diverse reasons. Therefore, the pecuniary jurisdiction is not and should not stand as an impediment for the court of first instance in determining damages as part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of court at the behest of the plaintiff." 16. In the above view of the matter, slight modification in the impugned order would meet the ends of justice. Hence following order: O R D E R O R D E R O R D E R --------- --------- --------- (i) The order of injunction is confirmed - 10 - subject to respondents furnishing bank guarantee in the sum of Rs.5 lakh with the trial Court within two weeks from the date of receipt of the writ of this order by the trial Court. The bank guarantee to be kept renewed from time to time until decision of the litigation. This security so furnished would be subject to the result of the suit. (ii) In the event, the suit is decreed, it would be open for the trial Court to discharge the bank guarantee. In the event, suit is dismissed, it would be obligatory on the part of the trial Court to quantify the damages that may have been suffered by the petitioners due to the injunction in favour of the plaintiff and to that extent the petitioner would be entitled to be compensated in terms of money. (iii) With this modification, the petition is partly allowed. Trial Court is directed to dispose of the suit within nine months from the date of receipt of the writ of this order. Parties are expected to co-operate with the - 11 - trial Court. Rule is made absolute in terms of this order with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)