JUDGMENT
A.M. Khanwilkar, J.
1. Rule. Rule made returnable forthwith by consent.
2. Heard both sides.
3. This Court, while issuing notice on this petition on 15th March, 2001 had indicated that the matter will be finally disposed of at the admission stage. In the circumstances, by consent of both the sides, the matter is heard forthwith. None appears for the respondent No. 3 though served.
4. This petition is directed against the order passed by the Additional District Judge, Mapusa, dated December 26, 2000 in Misc. Civil Appeal No. 21/2000.
5. Briefly stated, the respondents No. 1 and 2 filed a suit before the Court of Civil Judge, J.D., Sattari at Valpoi bearing Regular Civil Suit No. 1/1999 praying for injunction against the petitioners and respondent No. 3 herein. In substance, the relief was to restrain the petitioners from transferring, alienating, selling, entering into, mortgaging or creating any charge or lien on the suit property and the building constructed therein and any shops, flats, offices, hall or any commercial or residential area in the suit building or its any part thereof and further from in any manner approaching or following up with the respondent No. 3 herein to secure any occupancy certificate or any other permission/licence in respect of the said building or its any part thereof. The other relief in the said suit is directed against the respondent No. 3 restraining them from issuing any further occupancy certificate or any type of licence to the petitioner/defendant No. 1 or any other person or persons to do any business or other type of act in the said building or in its any part thereof.
6. The contesting respondents took out an application for interim relief during the pendency of the suit, whereby they prayed for temporary injunction. The trial Court, after considering all the circumstances and submission, vide order dated February 15, 2000, was pleased to reject the said application for temporary injunction on the ground that the plaintiffs failed to make out prima facie case and that the balance of convenience as well as the issue of irreparable loss was in favour of the defendants.
7. Against the said decision, contesting respondents No. 1 and 2 preferred Misc. Civil Appeal No. 21/2000 before the Addl. District Judge, Mapusa. The District Court by the impugned order dated December 26, 2000 has allowed the appeal and granted temporary injunction as prayed for. The order passed by the District Court reads thus:—
ORDER
“The order dated 15-2-2000 is quashed and set aside. The respondent No. 1 his agents, servants, etc. are restrained from transferring or creating any charge on the suit property and the building constructed thereon or any shops, flats etc. and further the respondent No. 2 is restrained from giving occupancy certificate to the respondent No. 1 in respect of the premises including flats and shops which are not so far given occupancy certificate, pending the decision of the suit. Considering the circumstances of the case there shall be no order as to costs.”
8. The petitioner assailed the aforesaid order on the ground that the District Court has clearly exceeded its jurisdiction and acted in the exercise of its jurisdiction illegally and with material irregularity while granting the above said order. According to the petitioner, from the material on record it was more than evident that the plaintiffs had failed to make out any prima facie case or on the issue of balance of convenience and that the circumstances do indicate that the petitioner would suffer irreparable loss. It is contended that the Appeal Court though reversed the order passed by the trial Court, has not considered the three elementary issues and has proceeded on surmises and conjectures to grant relief as prayed for being swayed by the arguments advanced by the plaintiffs that the plaintiffs had sentimental value attached to the property and it would be appropriate to protect their interest by granting the relief. It is further contended that in any case the relief which has been granted by way of temporary injunction, virtually amounts to allowing the suit at the interlocutory stage, that too without assigning any cogent reason.
9. On the other hand, the learned Counsel for the contesting respondents, has adopted the reasons indicated by the Appellate Court to support the order under challenge. According to him, there is no dispute that the contesting respondents have 1/16th share in the suit property and therefore serious miscarriage of justice would occasion if the applicants are prohibited to deal in any manner with any portion of the suit building. Reliance has been placed on a letter dated 15th December, 1997 which is in the nature of notice given by the Advocate of the contesting respondents to the Dy. Collector, Mapusa. According to the respondents they had given no objection which was conditional one for the conversion of user applied for in respect of the suit building, subject to reserving their right in the estate of the deceased partner. Reliance has been placed on the documents which forms part of the record before the Court below by both the sides as well as pleadings which form part of the record in the Court below.
10. After having considered the rival submissions, I find that the Appeal Court has interfered in the appeal in a casual manner. The reasons which are set out by the Appeal Court are not sufficient enough so as to take a different view from the one taken by the trial Court. On scrutiny of the judgment of the trial Court, it would appear that the trial Court has adverted to each document and analysed each contention of both sides and only thereafter proceeded to record a clear finding on the issue of prima facie case as well as balance of convenience and irreparable loss. The judgment of the trial Court is a well considered judgment and has taken into account all the relevant aspects while prima facie concluding that the suit filed by the plaintiffs was totally misconceived. The trial Court has also considered the fact that the plaintiffs had consented to the conversion of the property and pursuant to which the petitioner herein developed the property by investing huge considerations. It is not in dispute that the plaintiffs consented for grant of occupancy certificate in respect of the second floor in the suit building during the pendency of the suit. Taking totality of all the circumstances into account, the trial Court was right in observing that the plaintiffs had failed to make out a prima facie case or that the balance of convenience was in favour of the plaintiffs and that irreparable loss would be caused to the petitioner herein in the event injunction as prayed for was granted. The trial Court also rightly took into account that there was delay on the part of the plaintiffs to approach the Court. In para 10 of the judgment, the trial Court has deliberated about this fact while recording its conclusion whether the plaintiffs had made out a prima facie case. Whereas, the Appeal Court, instead, preferred to grant the injunction as prayed for totally disregarding the well settled principle that the party who approaches the Court for relief of temporary injunction should satisfy the cardinal tests namely on the issue of prima facie case, balance of convenience and irreparable loss. The Appeal Court has not entered into this deliberation with regard to each of the issues unlike the deliberation undertaken by the trial Court, but the only consideration which weighed with the Appeal Court is evident from the observations in paras 8 and 9 of the judgment under challenge. The Appeal Court was unduly influenced by the fact that there was no dispute that the contesting respondents had undivided share in the suit property and the fact that they had a sentimental value attached to the property; totally disregarding the other relevant considerations which were rightly noticed by the trial Court. The Appeal Court has not even bothered to reverse the findings recorded by the trial Court, but has made sweeping observations that the contesting respondents were entitled for temporary relief as prayed for. The impugned order therefore cannot be sustained and deserves to be set aside.
11. However, it needs to be mentioned that Mr. Nadkarni, learned Counsel appearing for the applicants, fairly submits that although this Court may reverse the injunction granted by the Appeal Court irrespective of that the petitioner would ensure that one unit out of the suit building admeasuring about 20 sq. metres of area on the first floor would be set apart and the same will not be disposed of or any third party rights created therein until the disposal of the suit or Inventory proceedings whichever is earlier or on obtaining prior permission of the trial Court. He submits that in case of any exigency, the petitioner would approach the trial Court for appropriate relief in that behalf. He further submits that the petitioner shall also not create any third party rights or deal in any manner with the undeveloped portion in the suit property which admeasures around 250 sq. metres. The stand taken by the petitioner needs to be appreciated, particularly in the backdrop of the fact that although the injunction order is being set aside, in all fairness, she has still given an undertaking to the Court that she will not create any rights in respect of the property which is mentioned in this paragraph (referred as one unit of 20 sq.mts. and the undeveloped portion of about 250 sq.mts.) so as to ensure that no prejudice is caused to the contesting respondents, in as much as the entitlement of the contesting respondents is admittedly only to the extent of 1/16th share in the undivided property and on setting apart such property it would surely fully protect the interest of the contesting respondents. The above said statement has been made by Mr. Nadkarni on the basis of instructions from the son of the petitioner who is present in Court. This statement is accepted.
12. At this stage, it is pointed out that Inventory proceedings are also pending between the parties before the Court of Civil Judge, S.D., Bicholim bearing No. 44/97/A. In the peculiar facts and circumstances of the case, it would be appropriate that the Civil Judge, S.D., is directed to expedite the said proceedings and preferably dispose of the same within a period of six months from the date of receipt of writ of this Court. Both the Counsel assure that their respective clients would extend full co-operation before the Civil Judge, S.D., in the Inventory proceedings.
13. In the circumstances, the revision succeeds and the impugned order dated December 26, 2000 deserves to be set aside. Rule made absolute in the above terms with costs.
14. In view of the order passed in this Revision Application, Civil Application does not survive and stands disposed of.