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2012 DIGILAW 936 (BOM)

Lilia Dias v. Cristina Virginia Gomes

2012-05-04

F.M.REIS

body2012
JUDGMENT Heard Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Applicant and Shri A. R. Kantak, learned Counsel appearing for the Respondent no.1. 2. The above review admitted by this Court by Order dated 27.11.2006, came to be heard finally. 3. Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Applicant has pointed out that this Court whilst disposing of Second Appeal no. 45/2003 by Order dated 17.06.2005, had come to the conclusion that there was no substantial question of law which arises in the said Appeal filed by the Respondents but, however, had clarified that the Lower Appellate Court whilst disposing of the Appeal filed by the Applicants challenging the dismissal of the counter claim, had directed the Respondent to demolish the compound wall constructed by the Respondents in plot no. 15 which is touching the wall of the house of the Applicants. Learned Senior Counsel further pointed out that, according to the Applicants, the entire wall constructed by the Respondents blocking the access of the Applicants was ordered to be demolished by Lower Appellate Court. Learned Senior Counsel further pointed out that once the Court has come to the conclusion that there were no substantial questions of law which arises in the Appeal, the question of interfering with the impugned Order and granting such clarifications is without jurisdiction which has resulted in an error apparent on the face of record which necessitates a review of the Order passed by this Court dated 17.06.2005. Learned Senior Counsel further points out that similar prayer made by the Applicants in a Review Petition before the Lower Appellate Court, came to be dismissed by Order dated 06.06.2001. The learned Counsel further pointed out that considering that the review on the same count was rejected, the question of re-agitating the same dispute before this Court and getting a relief which was refused by the Lower Appellate Court in a Review Petition itself is an error apparent on the face on record which calls for interference in the present review. Learned Senior Counsel as such submits that, the above review deserves to be allowed. 4. On the other hand, Shri Kantak, learned Counsel appearing for the Respondent no.1, has pointed out that there is no error apparent on the face of record which calls for any interference of this Court under Order 47 of the Civil Procedure Code. Learned Senior Counsel as such submits that, the above review deserves to be allowed. 4. On the other hand, Shri Kantak, learned Counsel appearing for the Respondent no.1, has pointed out that there is no error apparent on the face of record which calls for any interference of this Court under Order 47 of the Civil Procedure Code. Learned Counsel further pointed out that this Court whilst passing the Order disposing of the Second Appeal preferred by the Respondent has interpreted the Order passed by the Lower Appellate Court and, as such, the question of claiming that there is any error apparent on the face of record, does not arise at all. The learned Counsel has taken me through the Judgment passed by this Court disposing off the Second Appeal preferred by the Respondent dated 17.06.2005 and pointed out that this Court has clearly stated while disposing of the Second Appeal that the Respondents were directed by a mandatory injunction to demolish the wall constructed by the Respondents in plot no. 15 which touches the wall of the house of the Applicant. Learned Counsel as such submits that there is no error apparent on the face of record which calls for any interference by this Court in the present application. 5. I have carefully considered the contention of the learned Counsel appearing for the respective parties. I have perused the Judgment passed by this Court disposing of the Second Appeal. I have also gone through the Judgment passed by the Lower Appellate Court as well as the Order passed disposing of the review filed by the Respondent before the Lower Appellate Court. The only point for consideration, is to ascertain as to whether as per the Order passed by the Lower Appellate Court, the Applicant was directed to demolish the entire wall in plot no. 15 constructed by them. On bare perusal of the Order dated 22.11.1999 passed by the Lower Appellate Court and the Order dismissing the review filed by the Respondent dated 06.06.2001, it is clear that the Respondents were directed to demolish the wall constructed by the Respondent which was touching the wall of the house of the Applicant. Hence, the question of demolishing the entire wall in plot no. 15 as sought to be contended by the learned Senior Counsel appearing for the Applicant, cannot be accepted. Hence, the question of demolishing the entire wall in plot no. 15 as sought to be contended by the learned Senior Counsel appearing for the Applicant, cannot be accepted. The Applicant has been directed to demolish the wall which is situated in plot no. 15 and touches the wall of the house of the Applicant. This Court had clearly held in the said Order at para 3 that the compound wall which touches the defendants house is on the strip of land of plot no. 15 passing in between plot no. 14 and 16. But, however, the only aspect to be considered is as to whether there is any error apparent on the face of record which calls for interference by this Court in the present review application. 6. At a query put to Shri Kantak, learned Counsel appearing for the Respondent, as to where the wall of the house of the Applicant is located referred to in the operative part of the Judgment of the Lower Appellate Court dated 22.11.1999, Shri Kantak, learned Counsel, states that the said wall of the house of the Applicant is located on the northern boundary of the plot no. 14. Considering the said contention of the learned Counsel appearing for the Respondent, it appears that the review filed by the Applicant is misconceived. This Court has not modified the Judgment passed by the Lower Appellate Court whilst disposing of the Second Appeal and, as such, the contention of the learned Senior Counsel that the question of invoking the jurisdiction under Section 100 of the Civil Procedure Code without their being any substantial question of law also does not survive. 7. There is no error apparent on the face of record which requires any review of the impugned Order passed by this Court. This Court has clearly stated at para 3 thus: "3. From the plan and the photographs produced, it appears that some portion of the compound wall constructed by the plaintiffs touches the wall of the house of the defendants and, therefore, the appellate Court has rightly directed the plaintiffs to demolish that portion of the compound wall which touches the northern wall of defendants' house. I find no irregularity in the impugned order, nor any question of law much less substantial question of law arises in this appeal. I find no irregularity in the impugned order, nor any question of law much less substantial question of law arises in this appeal. The appeal seems to have been filed because the impugned order of the appellate Court prima facie appears to have decreed the counter claim of the appellants, seeking mandatory injunction against the appellant/plaintiff to demolish the laterite compound wall near the northern wall of the defendants' house which is stated to have been constructed in the plot of the defendants though it is in plot no. 15 belonging to third party. It is not disputed that the compound wall is constructed by the plaintiffs and it touches the wall of the house of the defendants. In that event, injunction was rightly granted against the plaintiffs. The appellate Court has directed the plaintiffs to demolish only that portion of the compound wall which touches the northern wall of the appellant's house and not the entire compound wall as argued by the appellant. Thus, the appellate Court has decreed the counter claim for demolishing only that portion of the compound wall constructed by the plaintiffs which touches the northern wall of the respondent's house. This compound wall which touches the defendants' house is on the strip of land of Plot no. 15, passing in between plot nos. 14 and 16. In other words, the appellate Court has not directed the plaintiff to demolish the entire compound wall, but only that portion of the compound wall which touches the house of the defendants." 8. Shri Kantak, learned Counsel appearing for the Respondent nos.1, has stated that the wall of the house of the Applicant referred to in the said para is located in northern boundary of plot no. 14 as shown in old Survey Plan at exhibit Pw.1/C. 9. The above portion of the Order of this Court as transcribed above shows that the order passed by this Court is very clear and there is no error in the face of record. Apart from that the wall of the house of the Applicant referred in the said para is located on the northern boundary of plot no. 14 as mentioned by the learned Counsel appearing for the Respondent no.1. 10. Subject to above, the review application stands dismissed. Ordered accordingly.