Case Note & Summary
The appellants, Smt. Sunetra Suresh Kerkar, Kum. Shefali S. Kerkar, and Shri Ninad S. Kerkar, filed an appeal against the judgment and order dated 20/02/2006 passed by the Civil Judge, Senior Division at Ponda, which rejected their application for temporary injunction regarding the suit property. The respondents included Smt. Savitri Babli Gaude, Communidade of Curti, and others. The High Court of Bombay at Goa, presided by Justice P.V. Kakade, heard the learned counsel for both parties. The court observed that determining the issues on merits at this stage would virtually amount to deciding the basic issues of the suit itself, which should be tried on merits during the trial. Noting that the suit had been pending for three years, the court directed the trial court to expedite the hearing and dispose of the suit on or before 30/11/2007, after giving both sides an opportunity to lead evidence. In the meantime, both parties were directed to maintain status quo with regard to the suit land. All contentions raised in the appeal and the suit were kept open for adjudication at the final hearing. The appeal and the connected civil application were disposed of with no order as to costs.
Headnote
A) Civil Procedure - Temporary Injunction - Expedition of Suit - The court declined to determine the appeal on merits as it would effectively decide the suit at an interim stage, directing the trial court to expedite the hearing and dispose of the suit on or before 30/11/2007, with both parties maintaining status quo in the meantime. (Paras 3-5)
Issue of Consideration
Whether the appeal against rejection of temporary injunction should be decided on merits or the suit should be expedited for final adjudication
Final Decision
The appeal is disposed of with directions to the trial court to expedite the hearing of the suit and dispose of it on or before 30/11/2007, after giving opportunity to both sides to lead evidence. Both parties shall maintain status quo with regard to the suit land. All contentions kept open. No order as to costs. Civil Application No. 116 of 2006 also disposed of.
Law Points
- Expedition of trial
- status quo order
- avoidance of merits determination at interim stage
Case Details
2006 LawText (BOM) (11) 106
Appeal from Order No. 26 of 2006 and Civil Application No. 116 of 2006
Shri S.G. Dessai, Sr. Advocate with Shri Shivan Dessai, Advocates for the Appellants; Shri J.E. Coelho Pereira, Sr. Advocate with Shri S. Karpe, Advocates for the Respondents
Smt. Sunetra Suresh Kerkar, Kum. Shefali S. Kerkar, Shri Ninad S. Kerkar
Smt. Savitri Babli Gaude, Communidade of Curti, Smt. Mortal Shrikant Gaude, Shri Shrikant Serro Gaude, Smt. Shakuntala Shantaram Gaude, Shri Shantaram Shive Gaude
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Nature of Litigation
Appeal against rejection of temporary injunction application in a property suit
Remedy Sought
Appellants sought to challenge the order rejecting their temporary injunction application and obtain interim protection
Filing Reason
The trial court rejected the appellants' application for temporary injunction regarding the suit property
Previous Decisions
Civil Judge, Senior Division at Ponda rejected the temporary injunction application on 20/02/2006
Issues
Whether the appeal against rejection of temporary injunction should be decided on merits or the suit should be expedited for final adjudication
Ratio Decidendi
The court should not determine the merits of an appeal against an interim order if doing so would effectively decide the main suit; instead, the suit should be expedited for final adjudication.
Judgment Excerpts
In the course of hearing of the matter, I am of the view that if at all we determine issues involved on merits at this stage in the Special Civil Suit of the year 2003, then virtually it would amount to determination of the basic issues involved in the suit itself, which should be tried on merits at the time of trial in the lower Court.
Under the circumstances, I am of the view that the suit should be expedited so as to enable the parties to lead evidence on final merits of the matter, instead of determining this appeal at this stage when the suit is pending for adjudication for last 3 years.
Procedural History
The appellants filed a suit in 2003 before the Civil Judge, Senior Division at Ponda. They applied for temporary injunction, which was rejected on 20/02/2006. They appealed to the High Court of Bombay at Goa on 08/11/2006.
