TMI Blog2017 (8) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... loss. The facts of the case clearly establishes that it falls within the ambit of Rule 3, Order 39 of Code of Civil Procedure. The aspect whether the applicant has any easement right or not is to be examined by the learned Trial Court when the application Exh:5 is taken up for hearing threadbare. The present Appeal from Order arising out of non-grant of interim relief, present appeal is maintainable, and therefore the appeal is admitted . In the facts and circumstances of this case, in opinion of this Court, present case falls in the category of rarest of the rare case where ex parte ad-interim injunction is required to be granted to protect the subject matter of the suit at least application Exh:5 is decided by the learned Trial Court. The parties shall complete their pleadings before the learned Trial Court latest by 31st August, 2017. - Civil Application (For Stay) NO. 8397 of 2017 In Appeal From Order NO. 207 of 2017 - - - Dated:- 22-8-2017 - MR. R.M.CHHAYA, J. For The Applicant : Mr SP Majmudar, Advocate And Paulomee M Mehta, Advocate For The Respondent : MS Tejal A Vashi, Advocate And Viral K Shah, Advocate ORAL ORDER 1. Heard Mr.P.C.Kavina, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant to lay down the pipeline having 1 feet diameter and 3 feet depth. It is case of the applicant that the pipeline was laid down by incurring very huge expenditure and thereafter, respondent No.3 came in picture, for which the applicant has paid an amount of ₹ 13,00,000/- to respondent No.3. It is further the case of the applicant that, at present the pipeline is in working condition and treated affluents pass through the pipeline, so as to reach CETP situated at a distance of 4.5 kms., away from manufacturing unit of the applicant. It is also the case of the applicant that, lease agreement with respondent Nos.1 and 2 is also executed, however, the same could not be registered. 3.3 Record further indicates that as there was some apprehension and obstruction from respondent No.3, who has already been paid an amount of ₹ 13,00,000/-, statutory notice was sent to respondent Nos.1 and 2 dated 01.07.2017. It is contended that respondent No.3 claiming to be owner of part of Survey No.373 being Survey No.373/3 and started making demand of exorbitant amount and threatened the applicant to remove the pipeline on purported claim of being the owner of alleged part of Surv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that huge amount of ₹ 25 lacs and more has been incurred by the applicant. It was contended that even if the alleged date of purchase, which is mentioned by respondent No.3 in its Affidavit-in-Reply before this Court is considered, the work of laying down the pipeline was completed in the month of December, 2016 and it was also submitted that though the lease deed is unregistered, license should be protected and in fact, it is irrevocable license. (e) Mr.P.C.Kavina, on the aforesaid background, submitted that this is a fit case which falls within the rarest of the rare case as provided under Order 39, Rule 3 of the Code of Civil Procedure and if the position as on today is not continued, purpose of the suit may be lost and therefore, the order of status quo granted by this Court be continued till application Exh:5 for temporary injunction is decided by learned Trial Court and leave the parties to place their respective case before the learned Trial Court. Referring to the judgment of the Division Bench of this Court reported in the case of Sandesh Ltd. Anr. Vs. Transmedia Software Ltd. [2016 (1) GLR 574] , it was contended that, as decided by the Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no part alike Survey No.373/3 and that respondent Nos.1 and 2 dispute the claim of ownership put forward by respondent No.3. 8. It was also submitted that, though respondent No.3 has claimed its right, has not filed any suit or even not undertaken any proceedings to make out a case of having legitimate right on the disputed property. He further submitted that, in the facts of the case the order of status quo granted by this Court deserves to be continued till the application Exh:5 is decided and the same would meet the ends of justice as there is threat of breaking open the pipeline in the land belonging to respondent Nos.1 and 2 and that the land has been purchased by respondent No.3 is incorrect statement and respondent No.3 has only relied upon the so called map of DILR and has not even produced the sale-deed on record. 9. Mr.Viral K. Shah, learned counsel for respondent No.3 has opposed the Appeal From Order as well as the Civil Application and has contended that, the applicant-company was incorporated in the year 2009 and it has started its commercial activities in the year 2014 and there is already separate pipeline for transmitting treated effluents from its manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate paper-book, that there is Memorandum of Understanding between the applicant and respondent Nos.1 and 2 in relation to the land bearing Survey No.373, admeasuring 3577 sq.mtrs. and Survey No.58/p2, admeasuring 1742 sq.mtrs. It goes without saying that, respondent Nos.1 and 2 have no objection if the pipeline which is laid down by the applicant is permitted to remain as it is at least still application Exh:5 is decided. It is also an admitted position that, the applicant is paper manufacturing unit and has to make arrangement for discharge of treated affluents upto CETP, situated at a distance of 4.5 kms., away from its manufacturing unit, which is part of Sarigam Industrial Estate. As a paper manufacturing unit, the applicant is therefore bound by environment laws and has to maintain the prescribed standards for discharging its affluents for which pipeline is a sine qua non . The documents on record clearly establish the fact that, there is MOU and unregistered lease-deed. Though respondent No.3 has brought on record the Tippan/Map(sic) of DILR, which shows bifurcated part being Survey No.373/3, however, the fact remains that the names of respondent Nos.1 and 2 along with one S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortified by such facts and the same is operative as of now. 14. Considering the principle enunciated by Hon'ble Supreme Court in the case of Morgan Stanley Mutual Fund vs Kartick Das [1994 (4) SCC 225] , in facts of the case on hand, if the interim relief is not granted, irreparable mischief will ensue to the applicant/plaintiff. In the instant case, if the pipeline is removed, which is in prima facie opinion of this Court laid down before 10.01.2017, the same would cause greater injustice to the applicant herein. The facts of the case do not disclose that the applicant has trespassed into the land upon which the alleged claim of ownership is put forward by respondent No.3. Even according to respondent No.3, he has become the owner of alleged separate part of Survey No.373 i.e. Survey No.373/3 on 10.01.2017 and as observed hereinabove, the invoices on record prima facie show that the work of laying down the pipeline was over till December, 2016. It also appears that, the suit is not based merely on apprehension, but threats given by respondent No.3 and in such cases, this is a fit case for at least grant of status quo as provided under Order 39, Rule 1 read with Rule 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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