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2023 DIGILAW 595 (BOM)

Jayprakabh Karekar v. Laxmi Vaman Raut

2023-02-28

B.P.COLABAWALLA

body2023
JUDGMENT/ORDER 1. Rule. Rule made returnable forthwith. 2. The learned Counsel for the Respondents waives notice on behalf of the respective Respondents. 3. The above Writ Petition is filed to challenge the order passed by District Judge-1, Mapusa, in charge of District Judge-2, Mapusa in Misc. Civil Appeal No.31/2018. By virtue of this order, the appeal filed by the Petitioner was dismissed. Mr. Desai, learned Counsel appearing on behalf of the Petitioner submitted that Petitioner (original Defendant No. 27) filed an application seeking a temporary injunction restraining the Plaintiffs from interfering with the possession of the said defendant in relation to the property having survey nos. 212/3, 212/2(part), and 213/0 of village Sal, Bicholim, Goa, which injunction was refused by the Trial Court. 4. Being aggrieved by the said order, an appeal was filed before the District Court. The District Court also dismissed the appeal. Being aggrieved by that order, Defendant No.27 approached this Court by filing Writ Petition No.1188/2018. This Court by order dtd. 27/4/2020 partly allowed the Writ Petition and remanded the matter back to the Appellate Court for fresh consideration. 5. Mr. Desai brought to my attention paragraph 22 of the order dtd. 27/4/2020 passed by this Court which reads thus:- 22. I have extensively set out the other rival submissions made on behalf of the parties, which arose in the matter. I find that all these contentions were required to be dealt with by the learned Appellate Court in its judgment. Even assuming that an Appeal under Order XLIII of the Code of Civil Procedure, is an appeal on principle, the Appellate Court is expected to closely consider the rival pleadings of the parties in the context of the finding recorded by the learned Trial Court and the settled principles as to grant of temporary injunction. In my considered view, the principle issue is about the effect of a registered document of sale deed as against the old record as to the Cadastral survey and the documents of inscription and description. The learned Appellate Court, in my considered view, has failed to address itself as to the relevant considerations in the context of the rival pleadings and the findings recorded by the learned Trial Court. 6. The learned Appellate Court, in my considered view, has failed to address itself as to the relevant considerations in the context of the rival pleadings and the findings recorded by the learned Trial Court. 6. He submitted that the principal issue that had to be considered by the Appellate Court when the matter was remanded, was what weightage has to be given to the Sale Deed which was executed in favour of Defendant No. 27 vis-a-vis the documents which are procured by the Plaintiffs. Mr. Desai submitted that in the impugned order, there is no reference to the said Sale Deed at all except in paragraph 13 where the Appellate Court only notes a matter of fact statement that the property which Defendant No. 27 has claimed was sold to his mother by a Deed of Sale dtd. 22/8/1994. He submitted that there is no finding at all or reasoning given by the Appellate Court as to why the Sale Deed ought to be discarded and ignored for grant and/or refusal of injunction in favour of Defendant No.27. He submitted that the Appellate Court, not following the directions of this Court, itself is an error apparent on the face of the record and which would requires interference under Article 227 of the Constitution of India. 7. On the other hand, Mr. Bhobe, the learned Counsel appearing on behalf of Respondent Nos. 1 to 8(original plaintiffs) submitted that there is no error apparent on the face of the record because in spirit the Trial Court has considered the Sale Deed dtd. 22/8/1994 as well as all the documents produced by the Plaintiffs and thereafter come to the conclusion that no prima facie case is made out for grant of a temporary injunction. This being the case, the order cannot be said to be suffering from any perversity or an error apparent on the face of the record requiring interference under Article 227 of the Constitution of India. Consequently, he submitted that the Writ Petition be dismissed. 8. I have heard the learned Counsel appearing for the parties. I have also perused the paper and proceedings in the above Writ Petition. I have also carefully gone through the order passed by this Court on 27/4/2020. The relevant portion of the said order has also been reproduced by me earlier. 8. I have heard the learned Counsel appearing for the parties. I have also perused the paper and proceedings in the above Writ Petition. I have also carefully gone through the order passed by this Court on 27/4/2020. The relevant portion of the said order has also been reproduced by me earlier. From the said reproduction, it is clear that this Court was of the opinion that before the Appellate Court considers whether the discretion exercised by the Trial Court in refusing to grant the temporary injunction in favour of Defendant No. 27, the Appellate Court had to consider the Sale Deed and what weightage ought to be given to the said Sale Deed. 9. After going through the impugned order, I find force in the arguments canvassed by Mr. Desai that though the Appellate Court has referred to all the documents relied upon by the plaintiffs, there is absolutely no reasoning as to how those documents displaced the Sale Deed executed in favour of Defendant No.27. In fact, apart from stating that the properties which Defendant No. 27 has claimed were sold to his mother by the Deed of Sale dtd. 22/8/1994, nothing else is stated in the impugned order in relation to the Sale Deed. 10. I am unable to agree with Mr. Bhobe that in spirit the Sale deed has been considered. By reading the impugned order, I cannot come to such a conclusion. In these circumstances, it is unfortunate that I have to set aside the impugned order and remand the matter back once again to the Appellate Court for it to consider the matter afresh. It is made clear that whilst considering the matter afresh, the Appellate Court shall examine the documents produced by the plaintiffs vis-a-vis the Sale Deed dtd. 22/8/1994 as well as any other documents that are produced before the Appellate Court and thereafter come to a finding as to what weightage has to be given to the Sale Deed executed in favour of Defendant No.27/his mother and thereafter proceed to decide the appeal. Rule is made absolute in the aforesaid terms and Writ Petition is disposed of in terms thereof. 11. I am informed that the trial is at a very advanced stage. It is made clear that the trial shall proceed notwithstanding the appeal pending before the Appellate Court. In fact, Mr. Rule is made absolute in the aforesaid terms and Writ Petition is disposed of in terms thereof. 11. I am informed that the trial is at a very advanced stage. It is made clear that the trial shall proceed notwithstanding the appeal pending before the Appellate Court. In fact, Mr. Desai has fairly stated that the trial can proceed and he will not apply for any stay of the Trial Court proceedings before the Appellate Court. The said statement is accepted as an undertaking given to this Court. 12. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on the production by fax or email of a digitally signed copy of this order.