Pushpa Kamlakar Patil Alias Usha Ashok Gawad vs M/S. Sanyukta Realtor Thr. Its Partner Kiran T. Thakur And Ors

CNR No : HCBM010302852026

-WP-8097-2026.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8093 OF 2026

Pushpa Kamlakar Patil
Alias Usha Ashok Gawad,
Age:58, Occu: Household
R/at.: Room No. 8, Rajo Tower No.2
V. S. Marg, Virar East, Taluka Vasai,
District Palghar ...Petitioner
Versus
1. M/s Sanyukta Realtor
Through Its Partner
Kiran Tukaram Thakur
Age : 45 Yrs, Occupation : Business
Address: Ekvira Construction,
Opp. Old Viva College, Virar West,
Tal. Vasai, Dist. Palghar.
2. Jagannath Rajo Patil
Age : 62 Yrs, Occupation : Business
ARUN
RAMCHANDRA
SANKPAL
Digitally signed by
ARUN RAMCHANDRA
SANKPAL
Date: 2026.11.06
20:27:02 +0530
3. Sulochana Ananta Patil
Age; 45 Yrs. Occupation : Household
4. Suman Ananta Patil
Age: 68 Yrs. Occupation : Household.
5. Ganesh Kamlakar Patil
Age: 60 Yrs. Occupation : Business
6. Naresh Kamlakar Patil
Age : 57 Yrs. Occupation : Business
7. Dinesh Raghunath Patil
Age : 35 Yrs. Occupation : Business
ARS
1/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
8. Madhuri Mahesh Mhatre
Age : 45 Yrs. Occupation : Household.
9. Deepak Kashinath Gharat,
Age : 30 Yrs. Occupation : Business
10. Kishori Vinayak Mhatre
Age : 32 Yrs. Occupation : Household
11. Sangita Nathuram Bhagat
Age : 45 Yrs. Occupation : Household
12. Manisha Sanjay Gawada
Age : 42 Yrs. Occupation : Business
Nos. 2 to 12 R/at : Rajo Patil Bungalow
Phool Pada Road, Opp. Totale Talaw
Bazar Ward, Virar East, Tal. Vasai
Dist. Palghar.
13. Sharmila Santosh Patil
Age: 39 Yrs. Occupation : Household,
R/o Room No. 403, Rajo Tower No. 02
Veer Savarkar Marg, Tal. Vasai,
Dist. Palghar.
…Respondents
Mr. Kaustubh Patil, with Parmar Dixit, for the Petitioner.
Mr. Pradeep Thorat, with Yashaswi Sane, with Rushikesh K Gaikwad,
for Respondent No.1.
CORAM: N. J. JAMADAR, J.
th
DATE : 4 NOVEMBER 2026
JUDGMENT:
1.
Rule. Rule made returnable forthwith and, with the consent of
the learned Counsel for the parties, heard finally.
2.
By this petition under Article 227 of the Constitution of India, the
petitioner-plaintiff assails the legality, propriety and correctness of a
ARS
2/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
th
judgment and order dated 17 June 2026 passed by the learned
District Judge, Vasai, in MCA No. 31 of 2025, whereby the appeal
preferred by respondent No.1-original defendant No.1 against an order
th
dated 7 July 2025, passed by the learned Civil Judge in SCS No. 257 of
2022, thereby restraining the defendants from creating any third party
rights or interest in the suit property, came to be allowed and the said
order of temporary injunction was set aside.
3.
The petitioner-plaintiff instituted the suit seeking a declaration
rd
that the sale deed dated 23 November 2020, was not binding on the
plaintiff and it be cancelled qua the share of the plaintiff in the suit
property and the consequential relief of injunction.
4.
The substance of the suit was that Rajo Patil was the original
holder of the suit property. He had left behind two daughters;
Chandraprabha and Laxmi, and three sons, Anant, Raghunath and
Jagannath. The plaintiff and defendant Nos. 5 and 6 are the successor-
in-interest of Chandraprabha. The plaintiff and defendant Nos. 2 to 13
are thus the co-owners of the suit property. The plaintiff is entitled to
1/15th share therein.
5.
Defendant No.2 has executed a sale deed in respect of the suit
rd
property in favour of defendant No.1, on 23 November 2020
purportedly on the basis of the power of attorney purportedly executed
th
by the plaintiff and defendant Nos. 3 to 13 on 30 May 2008. The
ARS
3/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
plaintiff claims the said power of attorney is false. It is neither
registered nor sufficiently stamped. No consideration has been paid to
the plaintiff. Therefore, said transaction of sale of the suit property by
defendant No.1 in favour of defendant No.2 is illegal and void and not
binding on the plaintiff’s share in the suit property.
6.
The plaintiff filed an application for temporary injunction in the
said suit. The learned Civil Judge was persuaded to allow the
application finding that a prima facie case was made out and, in the
event, injunction was not granted the plaintiff would suffer irreparable
loss.
7.
Being aggrieved, defendant No.1 preferred an appeal before the
District Court. By the impugned judgment and order, the learned
District Judge was persuaded to allow the appeal holding inter alia that
there was material to indicate that the plaintiff had received a sum of
Rs.1,75,000/- from defendant No.1 and passed a receipt. Prima facie,
there was no material to show that the said payment was not towards
the consideration for the sale of the suit property. Finding that the
plaintiff had not approached the Court with clean hands and the
balance of convenience was in favour of defendant No.1, the leaned
District Judge allowed the appeal.
8.
Mr. Kaustubh Patil, the learned Counsel for the petitioner
submitted that the learned District judge committed an error in
ARS
4/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
interfering with a discretionary order passed by the trial Court. The
learned District Judge did not keep in view the jurisdictional limits in
the matter of interference with a discretionary order passed by the trial
Court. By no stretch of imagination could it be said that the exercise of
the discretion by the trial Court was perverse or against the settled
principles of law.
9.
Mr. Patil further submitted that as the power of attorney was not
registered, defendant No.2 could not have executed the sale deed on
the strength of such unregistered power of attorney, after more than 12
years of execution thereof. Even the intrinsic evidence of the said power
of attorney shows that it is unreliable. In this backdrop, when the
plaintiff has indisputably 1/15th share in the suit property, for
preservation of the subject matter of the suit injunction was required to
be granted to restrain the defendants from creating third party interest
therein.
10.
Mr. Thorat, the learned Counsel for respondent/defendant No.1,
submitted that all the heirs of the late Rajo Patil have accepted the
transaction of sale, except the plaintiff. Even the plaintiff had received
the consideration. Subsequently, the plaintiff has turned around and
instituted the suit, after defendant No.1 carried out substantial
development over the suit property.
ARS
5/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
11.
In these circumstances, the learned District Judge correctly
exercised the discretion to set aside the order of blanket injunction,
especially in the context of the alleged 1/15th share of the plaintiff in
the suit property. Nonetheless, defendant No.1 is willing to deposit the
amount of Rs.11,34,666/- at which the suit claim is valued to secure
and safeguard the interest of the petitioner, submitted Mr. Thorat.
12.
An additional affidavit in reply came to be placed on record to
demonstrate the extent of development carried out over the suit
property after obtaining the requisite permission from the planning
authority. It is asserted therein that, the construction is underway, and
ground plus six upper floors have been erected.
13.
I have given careful consideration to the rival submissions
canvassed across the bar. It is trite, an appeal against a discretionary
order is an appeal on principle. The appellate Court is not expected to
interfere with the order passed by the trial Court, unless the exercise of
discretion is perverse or against the settled principles of law. Perversity
and arbitrariness in the order of the Court of first instance may arise
either by taking into account the factors which are not relevant for
granting injunction or refusing to take into account a relevant factor
while declining the injunction.
14.
In the case at hand the fate of the suit would hinge upon the
question whether the power of attorney purportedly executed by the
ARS
6/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
plaintiff and her co-sharers in favour of defendant No.2 is legal and
valid.
15.
At this stage, even if the case of the plaintiff is construed rather
generously and it is assumed that the sale deed executed by defendant
No.2 in favour of defendant No.1 does not bind the share of the plaintiff
in the suit property, a prima facie case can be said to have been made
out. However, that is not sufficient to grant injunction of the nature that
was granted by the trial Court.
16.
It is well-recognized that, mere existence of a prima facie case is
not by itself sufficient to grant injunction. Apart from the consideration
as to whether refusal to grant injunction would result in, “irreparable
injury”, the scale of “balance of convenience” must tilt in favour of the
party seeking injunction. The balance of convenience is an important
consideration even if there is serious question to be tried or prima facie
case in support of grant of injunction.
17.
A profitable reference in this context can be made to a decision of
the Supreme Court in the case of Ramakant Ambalal Choksi Vs Harish
1
Ambalal Choksi, wherein the following observations are made:
“34. The burden is on the plaintiff, by evidence aliunde by
affidavit or otherwise, to prove that there is “a prima facie
case” in his favour which needs adjudication at the trial. The
existence of the prima facie right and infraction of the
enjoyment of his property or the right is a condition

1
AIR 2024 SC (Supp) 2379.
ARS
7/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
precedent for the grant of temporary injunction. Prima facie
case is not to be confused with prima facie title which has to
be established on evidence at the trial. Only prima facie case
is a substantial question raised, bona fide, which needs
investigation and a decision on merits. Satisfaction that there
is a prima facie case by itself is not sufficient to grant
injunction. The Court further has to satisfy that non-
interference by the court would result in “irreparable injury”
to the party seeking relief and that there is no other remedy
available to the party except one to grant injunction and he
needs protection from the consequences of apprehended
injury or dispossession. Irreparable injury, however, does not
mean that there must be no physical possibility of repairing
the injury, but means only that the injury must be a material
one, namely one that cannot be adequately compensated by
way of damages. The third condition also is that “ the balance
of convenience” must be in favour of granting injunction. The
Court while granting or refusing to grant injunction should
exercise sound judicial discretion to find the amount of
substantial mischief or injury which is likely to be caused to
the parties, if the injunction is refused and compare it with
that which is likely to be caused to the other side if the
injunction is granted. If on weighing competing possibilities
or probabilities of likelihood of injury and if the Court
considers that pending the suit, the subject matter should be
maintained in status quo, an injunction would be issued.
Thus, the Court has to exercise its sound judicial discretion in
granting or refusing the relief of ad interim injunction
pending the suit. (See: Dalpat Kumar V Prahlad Singh
reported in (1992) 1 SCC 719: (AIR 1993 SC 276)).”
(emphasis supplied)
ARS
8/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
18.
In the case at hand as noted above, at best, the plaintiff has
1/15th share in the suit property. None of the other co-sharers of the
plaintiff seem to have questioned the sale of the suit property by
defendant No.2 in favour of defendant No.1, on the strength of the
purported power of attorney executed by the plaintiff and defendant
Nos. 3 to 13 in favour of defendant No.2. Moreover, after transfer of the
suit property, defendant No.1 seems to have carried out substantial
development. A real estate project is being developed at suit property.
Substantial construction has been carried out. A blanket injunction to
restrain defendant No.1 from creating third party interest in the suit
property, in these circumstances, would cause grave injury not only to
defendant No.1 but to the third parties who might have booked units in
the said project developed by defendant No.1.
19.
A useful reference in this context can be made to the judgment of
the Supreme Court in the case of Mandali Ranganna And Ors Vs T
2
Ramachandra and Ors, wherein the Supreme Court declined to grant
injunction where substantial construction was carried out. The Supreme
Court observed in paragraphs 21, 22 and 26 as under:
“21 While considering an application for grant of injunction,
the court will not only take into consideration the basic elements
in relation thereto, viz., existence of a prima facie case, balance of
convenience and irreparable injury, it must also take into
consideration the conduct of the parties.

2
(2008) 11 SCC 1.
ARS
9/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
22. Grant of injunction is an equitable relief. A person who had
kept quiet for a long time and allowed another to deal with the
properties exclusively, ordinarily would not be entitled to an order
of injunction. The court will not interfere only because the
property is a very valuable one. We are not however, oblivious of
the fact that grant or refusal of injunction has serious
consequence depending upon the nature thereof. The courts
dealing with such matters must make all endeavours to protect
the interest of the parties. For the said purpose, application of
mind on the part of the courts is imperative. Contentions raised
by the parties must be determined objectively.
… … …
26. Rightly or wrongly constructions have come up. They
cannot be directed to be demolished, at least at this stage.
Respondent No. 7 is said to have spent three crores of rupees. If
that be so, in our opinion, it would not be proper to stop further
constructions.”
(emphasis supplied)
20.
In the same vein, in the case of ECE Industries Ltd Vs S. P. Real
3
Estate Developers Pvt Ltd and Anr, the Supreme Court declined to
grant injunction where the balance of convenience lay against grant of
injunction. The observations in paragraphs 19 and 20 read as under:
“19. Such being the state of affairs, i.e. substantial
construction has been made on the suit property in respect of
which crores of money have been invested by the
defendants/respondents and since the
defendants/respondents have already paid/deposited the
amount payable in terms of the agreement, although

3
AIR 2009 SC 2093.
ARS
10/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
belatedly, to the plaintiff/appellant, we do not think that the
plaintiff-appellant will suffer any substantial injury if the
construction work is not stopped by an order of injunction. It
is well settled that when construction has been made on a
land, which is of considerable magnitude, and when the
plaintiff shall not face any substantial injury, if no order of
injunction is granted because of payment/deposit of the
entire amount payable by the defendant to the plaintiff
under the Agreement, though belatedly, we are of the view
that the Court will not, as a matter of course, pass an order
of injunction against the other party restraining the other
party from raising any construction on the suit property till
the disposal of the suit. If ultimately, the suit filed by the
plaintiff-appellant is decreed, he can be compensated in
damages or the defendants/respondents may be directed to
pull down the construction and deliver vacant possession to
the plaintiff/appellant when no equity can be claimed for
such construction by the defendants/respondents. On the
other hand, in our view, if at this stage, an order of
injunction is granted against the defendants/respondents
from proceeding with further construction in the suit
property, it will undoubtedly destroy the constructions
already made by the defendants/respondents and the
defendants/respondents will suffer irreparable loss and
injury for not allowing them to make construction on the suit
property. That apart, in view of our discussions made
hereinabove, the entire amount payable by the
defendants/respondents having been paid/deposited in
favour of the plaintiff/appellant, there is no reason to pass
an order of injunction against the defendants/respondents
when the plaintiff/appellant would not face substantial
ARS
11/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
injury for permitting the defendants/respondents to proceed
with the construction in the suit property.
20. Accordingly, in view of our discussions made
hereinabove, we are, therefore, of the view that the balance
of convenience lies against granting an order of injunction,
which, if granted, will substantially and irreparably injure
and prejudice the defendants/respondents. For the reasons
aforesaid, we are, therefore, of the view that the High Court
was fully justified in affirming the order of the trial Court
refusing to grant any order of injunction in favour of the
plaintiff/appellant.
21.
If the facts of the case at hand are appraised through the
aforesaid prism, this Court considers it appropriate not to interfere with
the impugned order as, in the peculiar facts of the case, the balance of
convenience firmly tilts in favour of defendant No.1. At the same time,
this Court considers it appropriate to secure the interest of the plantiff
by directing defendant No.1 to provide appropriate security so that the
equities could be worked out at the final adjudication of the suit.
22.
Hence, the following order:
: O R D E R :
(i) The petition stands partly allowed.
(ii) The impugned order stands affirmed subject to the
following conditions:
(a) The respondent/defendant No.1 shall
deposit an amount of Rs.11,34,666/- before the
ARS
12/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
trial Court, as undertaken, within a period of
two weeks from the date of uploading of this
order.
(b) The respondent/defendant No.1 shall
reserve a two BHK flat in the building being
constructed on the suit plot and shall file an
undertaking, on an affidavit, to that effect that
the respondent/defendant No.1 will not sale,
alienate or otherwise create any third party
interest in the said flat.
(c) In the undertaking to be furnished, the
respondent/defendant No.1 shall furnish full
particulars of the said two BHK flat to be
reserved, like the flat number, floor, area etc.
(d) The aforesaid amount and the said flat
shall abide the final outcome of the suit.
(e) The respondent/defendant No.1, however,
shall not claim any equity on the basis of the
aforesaid deposit of the amount and the
earmarking of the flat, at the time of final
adjudication of the suit.
ARS
13/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59

-WP-8097-2026.DOC
Rule made absolute to the aforesaid extent.
No costs.
[N. J. JAMADAR, J.]
ARS
14/14
Uploaded on - 06/11/2026 Downloaded on - 06/11/2026 20:42:59
Powered by TCPDF (www.tcpdf.org)