MEENACSHI PHILOMENA MARTINS E SHUKLA Vs. BINA MARTINS

JUDGEMENT

(1.) This is an appeal at the instance of the original defendants challenging the order passed by the Senior Civil Judge, Mapusa, pursuant to which he granted the injunction and restrained the defendants from undertaking any construction in the suit plot and creating third party rights therein till further orders. It goes without saying that the respondents no.1 to 3 are the original plaintiffs while the respondent no.4 is the original defendant no.3 who had neither participated in the proceedings before the Trial Court nor in the Appeal.

(2.) Shri J. Coelho Pereira, learned Senior Advocate came to be heard on behalf of the appellants who submitted that the impugned order did not at all consider the cardinal principles in the grant of injunction namely a prima facie case, irreparable injury and balance of convenience. The learned Trial Judge had not considered the Agreement dated 7.12.1990 entered into between the appellants and the respondent no.1 and her deceased father with the respondent no.4. The learned Trial Court had failed to consider that the application was hit by delay and laches and did not consider the Agreement and the Declarations in their proper perspective and thereby erred in passing the impugned order as it did. There was no basis to rely in Jagdish Chander Sachdava Vs. Royal Bombay Yatch Club & Others [2004 ALLMR 1264] and, therefore, considering the equities, the appellants were entitled to a reversal of the order and a discharge of the injunction granted against her.

(3.) Ms. A. Desai, learned Advocate for the respondent no.1 submitted at the outset that there was no Sale Deed executed between the plaintiffs and the defendant no.3. No suit was also filed for the specific performance of the Agreement and at the highest what was at large was the Development Agreement. She had adverted to the Declaration which was totally silent qua the plot in respect of which 1/4th share was agreed to be given to the appellants. The Trial Court had rightly dealt with the issue on prima facie considerations and was seized of the fact that what was at large was only the Agreement to develop between the defendants no.1 and 2 and the plaintiffs in respect of the entire property. Even assuming without admitting that the plot was allotted to the defendants no.1 and 2, the plaintiffs had to be compensated being the co-owners. The Declaration dated 30.10.1999 was null and void as the declarant had no right to dispose off and moreover they were not parties to it. There was no basis to justify interference with the impugned order and hence the appeal had to be dismissed.