A single judge held that no infirmity justified invoking writ jurisdiction where the trial court had already framed an additional issue on possession of the suit property. The writ petition was dismissed in limine for lack of case for writ intervention.
The writ petition was dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 35 OF 2005
SHANTABAI VAIKUNTH SAWAL,MARGAO GOA.
....Petitioner
Versus
ROSA FERNADNES,MARGAO GOA.
....Respondent
Shri C. Mascarenhas, Advocate for the petitioner.
Coram:R. M. LODHA, J.
Date:29th September, 2005
P.C.
Heard Mr. C. Mascarenhas, the learned Counsel for the petitioner. I perused the impugned order.
The application was made by the defendant under Order 14, Rule 5 of the Code of Civil Procedure to frame additional issues. Inter alia, the defendant prayed to the trial Court that in the light of the pleadings made in the plaint, the issue be framed whether the plaintiff proves that she is the tenant cultivating the paddy field "8th Lanco Tambitollu" or "Lote No.766" situated in Margao ?
The trial Court did not accede to the request of the defendant by observing that the suit is for injunction based on plaintiff's claim that she is in occupation and possession of the suit property belonging to the Communidade and that the defendant has no right to carry on any construction in the suit paddy field which is in cultivation of the plaintiff and, therefore, the issue is not required to be framed about the tenancy.
I do not find any infirmity in the approach of the trial Court. As a
matter of fact, while allowing the application made by the defendant partly, the trial Court has framed an additional issue to the effect whether the plaintiff is cultivating and is in possession and occupation of an area of 5764.04 sq. metres of the suit paddy field known as "8th Lanco Tambitolli" and also known as "Lote No.766" ? This issue was necessary and has now been framed by the trial Court.
If, without establishment of the fact that the plaintiff is tenant of the suit paddy field the plaintiff's suit cannot be decreed as contended by the defendant, such a contention shall be examined by the trial Court while hearing and deciding the suit.
No case for invocation of writ jurisdiction is made out. The writ petition is dismissed in limine.
R. M. LODHA, J.
ssm.
1 issue framed by the court
Whether there is infirmity in the trial Court's refusal to frame an additional issue regarding tenancy and the admissibility of framing such an issue after it was already framed on possession.
1 provisions across 1 enactments
SHANTABAI VAIKUNTH SAWAL
ROSA FERNADNES
R. M. LODHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
