WP/587/2003 of SMT. SHANTI ALIAS SATYWATI SHAMBA NAIK and 3 ORS., Vs SMT. MARIA A.COLACO,CURCHOREM-GOA. on 12 December 2003

ORAL ORDER

Heard both sides. This Writ Petition takes exception to the Judgment and Order dated October 28, 2003, in Miscellaneous Civil Appeal No.9 of 2002. The respondent has filed the suit for permanent injunction and possession.

During the pendency of the said suit the respondent/plaintiff as well as the petitioners/defendants filed application for injunction in respect of certain properties. The Appellate Court by Judgment and Order dated December 8, 1989, passed the following Order:- " The appeal is allowed. The impugnedorder is not(set) aside. Theplaintiff/appellant’s application dated28.2.1986 for temporary injunction is partlyallowed. The defendant/repondent is herebyrestrained from proceeding with the works ofthesuit construction in the property surveyedunderNo.141/0.

The defendant/respondent’s applicationdated ll.5.1987 for temporary injunction isalso partly granted. The plaintiff, herrelatives or agents are hereby restrained fromdigging pits and/or deposit any rejects orstones and/or making any construction and/orinterfering with any of the trees of the suitproperty Macodgal bearing survey No.141/0.The remaining prayer of the defendant formandatory temporary injunction for directingthe plaintiff to remove the rejects depositedon the suit land, for filling up the pits dugand for dismantling the structure erected onthe same land is dismissed. In view of thecircumstances of the case parties to beartheir own costs." (emphasis supplied)

According to this Order the petitioners/defendants were clearly injuncted or restrained from proceeding with the works of the suit construction in the property survey no.141/0. This injunction order was the subject-matter of challenge before this Court by way of Civil Revision Application No.16 of 1990, at the instance of the petitioners/defendants. That Civil Revision Application came to be rejected by Oral Judgment dated September 3,

1991. In paragraph 3 of the said decision, the Court has dealt with the stand taken on behalf of the petitioners/defendants and has clearly recorded that the petitioners were restrained from proceeding with the work of construction in the suit property. The argument of the respondent/plaintiff that there was express injunction against the petitioners to carry on any construction activity is also reinforced from paragraph 8 of the injunction application as filed by the respondent/plaintiff as well as the prayer clause therein. Be that as it may, injunction is operating against the petitioners thus far.

However, the petitioners/defendants started construction activity on the disputed property being survey no.141/0 for which reason the respondent/plaintiff filed application before the trial Court purported to be under Order 39 Rule 11 of the Civil Procedure Code as applicable in view of the Bombay Amendment, for striking out the defence of the petitioners. That application is filed sometime in June

2001. The trial Court by Order dated December 21, 2001, however, rejected that application against which the matter

was carried in appeal by the respondent, being Miscellaneous Civil Appeal No.9 of 2002. That Appeal has been allowed by the Additional District Judge, South Goa, Margao, which is the subject-matter of challenge in this Writ Petition under Article 227 of the Constitution of India.

2. Learned counsel for the petitioners/defendants mainly raised three points. According to her, the construction in question is not new or, for that matter put up in breach of the order of injunction dated December 8, 1989, as such. Learned counsel submits that in any case there is no specific finding by the courts below in this behalf. The second point argued is that at any rate, the injunction as granted by the Court on December 8, 1989, though confirmed by this Court, was only with regard to "suit construction" and not for putting up any new construction at some other place in the disputed plot.

Learned counsel further submits that it is on this erroneous or mistaken understanding that the petitioners proceeded with the construction activity of the disputed structure and since it was not intentional and on misreading or incorrect understanding of the order of the Court, that was sufficient cause which ought to be and could have been excused as was done by the trial Court in exercise of its discretion. The Appellate Court ought not to have interfered with that discretionary order. Learned counsel then submits that assuming that the structure in question is objectionable, it will be in the interests of justice to permit the petitioners to allow the structure to remain till the final disposal of the suit, subject to the petitioner giving undertaking before this Court that in the event the Court finally finds that the structure is unauthorised or that the matter is finally decided against the petitioners, the petitioners would remove the said structure at their own cost, without claiming any equity. On this submission learned counsel submits that the impugned Judgment be set aside and instead the Order passed by the trial Court be restored. Learned counsel has placed reliance on the decision reported in 2003 (2) All MR 495 in the case of Shaikh Samsul Hudda & Ors. vs. M/s. Khayber Properties &Investment Pvt. Ltd., and another decision of the Apex Court reported in 2000 AIR SCW 722 in the case of Om PrakashJaiswal vs. D. K. Mittal & Anr.

Shaikh Samsul Hudda & Ors. vs. M/s. Khayber Properties &

Investment Pvt. Ltd.

Court reported in 2000 AIR SCW 722 in the case of Om Prakash Jaiswal vs. D. K. Mittal & Anr.

3. On the other hand, learned counsel for the respondent contends that none of the arguments are available to the petitioners. He submits that insofar as the first argument is concerned, there is a clear finding of fact recorded by the court below in paragraphs 10 and 11 on the basis of expert’s evidence that the structure in question has been put up about four to five months before the institution of the application and it is adjoining the hut

of palm leaves. Besides, the petitioners did not enter the witness box to explain the position as is now canvassed before this Court. With regard to the second contention, learned counsel further submits that the argument is completely misconceived because the application as filed by the respondent for injunction was obviously for restraining the petitioners from carrying on works of construction in the property survey no. 141/0 and more so when in the decision of this Court in revision filed by the petitioners the position became amply clear that the petitioners were restrained to carry on the work of construction in the suit property. It is further submitted that there is nothing on record to show that the petitioners had taken legal advice before undertaking the new construction assuming that they were misled by the Order passed by the trial Court dated 8th December, 1989. If that is so, it is not a sufficient cause at all. Insofar as the third contention canvassed on behalf of the petitioners, learned counsel for the respondent contends that the mandate of law is to strike out the defence, if no sufficient cause is made out by the party who has flouted the orders or direction issued by the Court.

Reliance is placed on the decisions reported in 2003 Vol.

105 (3) Bom.L.R. 481 in the case of Smt. Asha w/oMadhusudan Joshi vs. Shri Ashok H. Bhide & Ors. and in 2001 Vol.103 (2) Bom.L.R. 425 in the case of Ganpat ShankarWaghmare vs. Smt. Anjalibai Rao Waghmare & Anr. It is 105 (3) Bom.L.R. 481 in the case of Smt. Asha w/o Madhusudan Joshi vs. Shri Ashok H. Bhide & Ors.

2001 Vol.103 (2) Bom.L.R. 425 in the case of Ganpat Shankar Waghmare vs. Smt. Anjalibai Rao Waghmare & Anr.

submitted that in the present case the petitioners having failed to make out sufficient cause, the illegality committed by them cannot be tolerated or condoned even upon giving undertaking to this Court as is suggested. Whereas once it is found that no sufficient cause is made out the mandate of law is to strike out the defence.

4. Having considered the rival submissions, the first question is whether the construction in question has been put up after 8th December, 1989. That aspect has been answered by the Courts below and in particular by the Appellate Court in paragraphs 10 and 11 of its decision.

That is a finding of fact which is binding on this Court.

The fact recorded on analysing the evidence before the Court in the shape of experts evidence is that the structure in question is about four to five months old before the institution of the subject application. As is seen the injunction order was passed on 8th December, 1989, whereas the application under Order XXXIX Rule 11 of the Code of Civil Procedure has been filed in June, 2001. Having regard to the gap between the two dates and the finding of fact recorded by the Court below, the answer to the question posed on behalf of the petitioners will have to be negatived inasmuch as the structure is obviously put up after 8th December, 1989. Moreover, there is no substance in the argument that there is no specific finding on that issue by

the Courts below. On fair reading of the Judgment under challenge it can be discerned as mentioned earlier from paragraphs 10 and 11 that the Court has examined that aspect and found that the structure is only four to five months old before the institution of the application, which is in breach of the order of injunction.

5. That takes us to the defence taken on behalf of the petitioners to make out sufficient cause for excusing the illegality committed by them. The argument proceeds on the premiss that there was no clear injunction against the petitioners to put up a new structure at some other place in the disputed plot, whereas the injunction was limited to works of the "suit construction" - which means the structure as was already put up on the site in or around the period when the suit came to be instituted in 1989. Even this argument does not commend to me. The application as filed by the respondent for injunction would clearly spell out that the respondent had claimed injunction in respect of any construction work on the suit property survey no.141/0. The Court had examined this aspect and then proceeded to pass the said order as referred to above. Indeed, the Order records that the petitioners are restrained from proceeding with the works of suit construction in the suit property survey no. 141/0. By no stretch of imagination that injunction can be limited to work or construction already undertaken on the site at the relevant time. This position is also reflected from the observations made by this Court while dismissing the revision application filed by the petitioners as can be discerned from paragraph 3 of the Order. To my mind, therefore, no fault can be found with the view expressed by the Appellate Court in the impugned Judgment that the said defence was not available to the petitioners and cannot be said to be sufficient cause. No fault can be found with that conclusion reached by the Court below. Learned counsel for the petitioners no doubt placed reliance on the decision in the case of Shaikh Samsul Hudda& Ors. vs. M/s. Khayber Properties & Investment Pvt.Ltd. (supra), which takes the view that the power of the Court to pass order under Rule XXXIX Rule 11 of the Code of Civil Procedure is a discretionary power to be exercised judiciously and in cases where the party suffers such harsh penalty and not merely because the other side feels aggrieved by the failure on the part of the other party with the Order. However, in the present case,the finding as recorded is that construction has been put up on the suit property inspite of injunction Order granted by the trial Court. The petitioners have not bothered to enter the witness box to explain their position as is now canvassed before this Court. There is clinching evidence to find that the construction has been put up after the injunction Order and is a recent one, which is on the suit property in respect of which injunction was issued by the Court.

Obviously, the defence now taken is an afterthought. As is

rightly contended on behalf of the respondents, there is nothing on record to show that the petitioners put up the new construction upon legal advice obtained by them. In the circumstances, the defence as taken seems to be an afterthought and not bona fide. If that is so, it cannot be said to be sufficient cause so as to excuse the lapse committed by the petitioners. Any litigant who approaches the Court should approach the Court with clean hands. Only such litigant can expect indulgence when the Court has discretion to show sympathy for the litigant. In the present case, in view of the finding recorded by the Appellant Court and which has found favour with me, it is not possible to accept the argument that the mistake committed by the petitioner was unintentional as such. The argument of misreading of the injunction order passed by the Court is obviously an afterthought. No indulgence is warranted with regard to such litigants as that would render the provisions of Order XXXIX Rule 11 of the Civil Procedure Code otiose. Reliance placed on the decision of the Apex Court in the case of Om Prakash Jaiswal vs. D. K. Mittal& Anr. (supra) is also of no avail to the petitioners. Reliance is placed on paragraph 17 of this decision which deals with the issue that the jurisdiction to punish for contempt is summary, but the consequences are serious and for which reason the Court should be slow when the contempt is mere technical. In the present case, it is not possible to take the view that the lapse committed by the petitioners is mere technical failure or non-compliance with the Order.

The new construction as put up by the petitioner is obviously in defiance of the injunction Order passed by the Court, which was confirmed right up to this Court.

6. Learned counsel for the respondents has rightly placed reliance on the decision of this Court inSmt. Asha w/o Madhusudan Joshi vs. Shri Ashok H. Bhide &Ors. (supra) and Ganpat Shankar Waghmare vs. Smt.Anjalibai Rao Waghmare & Anr. (supra). The view that I propose to take is consistent with the aforesaid decisions.

7. In the circumstances, even if the petitioners are willing to give an undertaking to this Court that they would remove the structure in question in the event the suit is finally decided against them, that can be no argument to dissuade the Court from invoking the mandate under Order XXXIX Rule 11 of the Civil Procedure Code of striking out the defence in an appropriate case such as the present one, where the new construction has been put up in utter defiance of the injunction granted by the Court, which was confirmed right up to this Court.

entertain this Writ Petition in exercise of writ jurisdiction. Hence the Petition is dismissed with costs.

mc.