AI Structured Summary
Not yet generated for this judgment
Judgment
F. M. Reis, J
Heard Shri Nitin Sardessai, learned Counsel appearing for the Petitioners and Shri Ramani, learned Counsel appearing for the Respondents. Rule. Heard forth with with the consent of the learned Counsel. Learned Counsel appearing for the Respondents, waives service.
The above Petition challenges the Order passed by the Lower Appellate Court, whereby an Appeal preferred by the Respondents came to be allowed and the Petitioners have, inter alia, been restrained from creating any third party rights in respect of property surveyed under no. 113/1 of Village of Malcornem of Quepem Taluka.
Shri Nitin Sardessai, learned Counsel appearing for the Petitioners, has pointed out that the Lower Appellate Court whilst deciding the Appeal preferred by the Respondents has not at all applied his mind to the documentary evidence adduced by he parties nor given any prima facie finding as to whether the Respondents have made out any case to establish that they had any right to the suit property. Learned Counsel further pointed out that ignoring the Judgment passed in favour of the Petitioner aside which the Respondents contend to have been obtained by fraud, however, independently, the Respondents, who were Plaintiffs to the suit, have failed to bring any evidence on record to establish prima facie that they have any right to the suit property. Learned Counsel further pointed out that it is well settled that when a party seeks for temporary injunction, such party has to, prima facie, establish their right to the suit property and thereafter establish the other requisites namely the point of balance of convenience and irreparable injury. Learned Counsel has further taken me minutely through the impugned Judgment and pointed out that the Lower Appellate Court has been carried away with the fact that the Respondents have not been parties to the earlier decree dated 29.11.2005 and, as such, has prima facie come to the conclusion that the Respondents have establish their right to the suit property. Learned Counsel further pointed out that the suit property belongs exclusively to the Petitioners and, as such, the question of granting any temporary injunction against the Petitioners in such circumstances does not arise. The learned Counsel further pointed out that the learned Judge has not at all exercised its jurisdiction in accordance with law and, as such, the impugned Judgment passed by the Lower Appellate Court deserves to be quashed and set aside.
On the other hand, Shri Ramani, learned Counsel appearing for the Respondents has supported the impugned Judgment. Learned Counsel has pointed out that it is not in dispute that pursuant to the said Judgment and Decree dated 29.11.2005, the name of the father in law of the Respondent no.1, Suryaji Balkrishna Sinai Malkarnekar, came to be deleted. Learned Counsel has taken me through the Judgments passed in the said proceedings and pointed out that all the other legal representatives of the said Suryaji have been made parties to the suit, but, however, deliberately, the Petitioners have not made parties to the said proceedings. Learned Counsel further pointed out that the husband of the Respondent no.1, Subhaxachandra Sinai Malkarnekar, was the son of the said Suryaji and, as such, as he had expired at the relevant time, the rights in the estate of the said Suryaji had devolved upon the Respondent no.1 and her daughter, Respondent no.2 herein. Learned Counsel further pointed out that though the Lower Appellate Court has not considered the material on record brought by the said Respondents to the effect that the Respondents have co-ownership rights over the suit property, nevertheless, even the learned Trial Judge whilst dismissing the application filed by the Respondents, has not at all scrutinised the evidence adduced by the Respondents to establish their right to the suit property. Learned Counsel has taken me through the Judgment passed by the learned trial Judge and pointed out that the learned Trial Judge has not at all applied his mind to the matter in controversy and had erroneously dismissed the application for temporary injunction filed by the Respondents. Learned Counsel as such submits that considering that the Respondents have prima facie established their right to the suit property, the question of interference in the impugned Judgment does not arise at all.
I have carefully considered the submissions of the learned Counsel and I have also gone through the records as well as the impugned Judgment passed by the Lower Appellate Court as well as the Judgments passed by the learned Trial Judge. On perusal of the Judgment passed by the Lower Appellate Court, I find that Shri Sardessai, learned Counsel appearing for the Petitioners, is justified to contend that the material adduced by the parties has not been scrutinized by the Lower Appellate Court whilst passing the impugned Judgment. It is well settled that when the Lower Appellate Court is of the opinion that the findings rendered by the Trial Judge are erroneous, it is expected of the Lower Appellate Court to independently scrutinize every piece of evidence adduced by the parties and ascertain whether the parties have made out any prima facie case in their favour. On perusal of the Judgment of the Lower Appellate Court, I find that no such exercise has been carried out by the learned Judge and the Lower Appellate Court has only considered the earlier Judgment dated 29.11.2005 and the findings therein and the import of such Judgment. At this stage, Shri Ramani, learned Counsel appearing for the Respondents, has submitted that even the learned Trial Judge has not done the exercise expected of the learned Trial Court to decide the application for temporary injunction after considering the material adduced by the parties on record. Considering the said aspect which Shri Sardessai, learned Counsel appearing for the Petitioners, in fact does not dispute, I find it appropriate that instead of remanding the matter before the lower Appellate Court, it would be appropriate, in the interest of justice, that the learned Trial Judge be directed to decide the application for temporary injunction filed by the Respondents after hearing the parties and considering the evidence produced by the parties in accordance with law, in view of the contention of the learned Counsel appearing for the Appellant. In view of the above, I pass the following :
ORDER
(i) The impugned Judgments passed by the Lower Appellate Court dated 29.06.2011 and the Judgment passed by the learned Trial Judge dated 29.11.2005, are quashed and set aside.
(ii) The learned Trial Judge is directed to decide the application for temporary injunction filed by the Respondents herein afresh after hearing the parties in accordance with law.
(iii) All the contentions of the parties on merits are left open.
(iv)Rule is made absolute in the above terms.
(v) Petition is disposed of accordingly with no orders as to costs.