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Judgment
A.P. Lavande, J.—Heard Mr. Lotlikar learned Senior Counsel for the Petitioners and Mr. Sardessai learned Counsel for the Respondents.
Rule. By consent, heard forthwith.
By this petition under Article 227 of the Constitution of India, the Petitioners challenge order dated 22/10/2008 passed by the Additional District Judge-3 at Panaji in Miscellaneous Civil Appeal No. 85 of 2008 by which the appeal preferred by the Petitioners herein against the order dated 3/6/2008 passed by the Civil Judge Junior Division, Ponda granting injunction was partly set aside and order dated 31/1/2009 granting review filed by the Respondents herein.
By order dated 22/10/2008, the lower Appellate Court set aside order passed by the trial court in respect of property bearing survey No. 41/1 and maintained the order in respect of survey Nos. 27/4 and 40/4. By order dated 31/1/2009, the Lower Appellate Court modified the order dated 22/10/2008 on the basis of admission made by Mr. Sardessai on behalf of the Plaintiff only in respect of a small portion of the property bearing survey No. 41/1.
As far as order dated 31/1/2009 is concerned, the same does not disclose the portion of the property bearing survey No. 41/1 in respect of which the injunction order stood modified. It is well settled that when a party seeks injunction in respect of a portion of the property bearing a particular survey number, the portion has to be clearly identified, before the Court grants any relief in favour of the party. While modifying the order dated 22/10/2008, the lower Appellate Court has not identified the portion of survey No. 41/1. Without going into the merits of the rival submissions on this sole ground I am inclined to set aside the order dated 31/1/2009 and remit the matter to the Lower Appellate Court for fresh decision.
Mr. Lotlikar, learned Senior Counsel for the Petitioner submits that the Petitioner would not press challenge to the order dated 22/10/2008 in respect of survey No. 27/4 and 40/4 at this stage and liberty be granted to the Petitioners to challenge the said order depending upon the order on the review application by the lower Appellate Court on remand.
I am of the opinion that the prayer made by Mr. Lotlikar deserves to be accepted.
In view of the above, the order dated 31/1/2009 passed by the lower Appellate Court on the review application dated 20/11/2008 is set aside and the lower Appellate Court is directed to decide the review application afresh after giving an opportunity of hearing to both sides. All the rival contentions of the parties are kept open. It is made clear that I have not expressed any opinion on the merits of the rival claims.
Liberty is granted to the Petitioners to challenge the order dated 22/10/2008 depending upon the order on the review application which would be passed by the lower appellate Court. Liberty also to the Respondents to place on record material demonstrating the portion of survey No. 41/1 which according to the Defendants is in possession of the Petitioners. Needless to mention that the Petitioners herein would also be entitled to give their say in reply to the documents, if any, produced by the Respondents herein.
The parties either personally or through their advocates to appear before the lower Appellate Court on 10/2/2011 at 10.00 a.m. The lower Appellate Court shall dispose of the review application expeditiously.