Back
2023 Supreme(Bom) 2061
IN THE HIGH COURT OF BOMBAY
B.P. Colabawalla, J.
Jayprakabh Karekar - Appellant
Versus
Laxmi Vaman Raut - Respondent
Writ Petition No. 452 of 2022-F
Decided On : 28-02-2023
S. Desai, Advocate, T. Menezes, Advocate, A.D. Bhobe, Advocate, S. Shaikh, Advocate, J.A. Lobo, Advocate, S. Sardessai, Advocate
IMPORTANT POINT
The necessity for Appellate Courts to provide reasoned judgments that adequately address all relevant documents and claims in cases involving temporary injunctions.
Headnote:
INJUNCTION - TEMPORARY INJUNCTION - Article 227 of the Constitution of India, Order XLIII of the Code of Civil Procedure - The court emphasized the necessity for the Appellate Court to properly consider the Sale Deed in relation to the documents presented by the Plaintiffs. It highlighted the importance of weighing the Sale Deed against the Plaintiffs' claims and the need for a reasoned decision regarding the temporary injunction. The court found that the Appellate Court failed to address this critical issue, warranting a remand for fresh consideration.
Fact of the Case:
The Petitioner, Defendant No. 27, sought a temporary injunction to prevent the Plaintiffs from interfering with his possession of certain properties. The Trial Court denied the injunction, and the Appellate Court upheld this decision. The Petitioner challenged the Appellate Court's order, arguing that it failed to properly consider the Sale Deed executed in his favor.
Finding of the Court:
The court found merit in the Petitioner's arguments, noting that the Appellate Court did not adequately address the Sale Deed or provide reasoning for its dismissal. The court concluded that the Appellate Court's failure to consider the Sale Deed constituted an error apparent on the face of the record.
Issues: Whether the Appellate Court properly considered the Sale Deed in its decision regarding the temporary injunction and whether it provided adequate reasoning for its conclusions.
Ratio Decidendi: The court held that the Appellate Court must give due weight to the Sale Deed and provide a reasoned analysis of how it relates to the documents presented by the Plaintiffs when deciding on the temporary injunction.
Final Decision: The court set aside the Appellate Court's order and remanded the matter for fresh consideration, instructing the Appellate Court to evaluate the Sale Deed alongside the Plaintiffs' documents.
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. 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
