Allowed

Shri. Leo Lamartine D'Souza Rep. by P.O.A. Shri. Jason Egidio Gomes and 3 Ors., v. Smt. Jayanti S. Karpe and Anr.

Bombay HC16 Sept 2013WP/476/2013

Case brief

AI extract

What is this about?

The High Court allowed the writ petition quashing the trial court's orders rejecting the plaintiffs' rejoinder to a temporary injunction application. It directed the trial court to admit the delayed rejoinder, allowing the defendant to file a sur-rejoinder, and appointed a schedule for completing pleadings and deciding the injunction application.

What did the court decide?

Impugned orders dated 12/06/2012 and 3/07/2013 were quashed; rejoinder was directed to be taken on record; defendant to file sur-rejoinder; pleadings completed within three weeks; temporary injunction

Shri. Leo Lamartine D'Souza Rep. by P.O.A… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.476 OF 2013

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Shri Leo Lamartine D'Souza, son of late Shri Romualdo D'Souza,

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71 years old, married, retired,

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Smt. Maria Apolina Lobo, wife of Shri Leo D'Souza, 65 years old, housewife, both residing at House No.1/7, Gaura Waddo, Calangute,

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Bardez, Goa and both represented by their power of attorney

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Shri Jason Egidio Gomes,

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residing at House No.50,

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Gaura Waddo, Calangute,

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Bardez, vide power of

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attorney dated 9/03/2011.

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Shri Sunney Romualdo D'Souza, son of late Shri Romualsdo D'Souza, 64 years old, married, landlord.

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Smt. Cynthia Apollonia Ismail Luzzanita D'Souza,

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wife of Shri Sunnye D'Souza,

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52 years old, housewife, both residing at House no.1/7, Gaura Waddo, Calangute,

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Bardez, Goa and both represented

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by their Power of Attorney

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Smt. Flora Zita D'Souza E Gomes,

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residing at House No.50, Gaura Waddo, Calangute, Bardez, Goa, vide Power of Attorney dated 18.10.1996.

…. Petitioners

V/s

Smt. Jayanti S. Karpe, wife of Shri Savlaram Karpe, 46 years old, residing at House No.2/52 Naikawaddo, Calngute Bardez Goa.

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Village Panchayat of Calangute, represented by its Secretary with its office at Calangute, Bardez, Goa.

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…. Respondents

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Shri V. P. Thali, Advocate for the Petitioners. Shri G. Agni, Advocate for Respondent No.1.

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CORAM : R.M. SAVANT, J.

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DATE : 16^th SEPTEMBER, 2013

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ORAL JUDGMENT :

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Rule. With the consent of the learned Counsel for the parties made returnable forthwith and heard.

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The above petition has been filed at the instance of the original plaintiffs challenging the order dated 12/06/2012 and the order dated 3/07/2013 passed by the trial Court i.e. the learned Civil Judge Senior Division, Mapusa. By the first order, the trial Court has refused to allow the plaintiffs to file their rejoinder to the application for temporary injunction, but has granted the relief of directing the defendant no.2 to furnish a copy of the written statement and reply filed by the said

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defendant within 8 days to the plaintiffs. By the second order, the application for review of the said order dated 12/06/2012 came to be rejected by the trial Court.

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It is not necessary to burden this order with unnecessary details.

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Suffice it to say that the controversy is as to whether the plaintiffs herein should be permitted to file their affidavit in rejoinder to the application for temporary injunction filed by them. In the said context, it is required to be noted that the defendant no.1 who is the main contesting defendant has filed his written statement on 18/02/2011 along with the affidavit in reply to the temporary injunction application. It appears that thereafter the suit had come up on a number of occasions on which occasions the affidavit in rejoinder was not filed by the plaintiffs. The trial Court considering the fact that on a number of dates the plaintiffs had not filed the affidavit in rejoinder, had on the application filed by the plaintiffs seeking further time to file the rejoinder had passed an order on 16/07/2011 granting time as and by way of last and final opportunity to file written arguments on the temporary injunction application. It appears that thereafter on 6/08/2011 the trial Court after observing that ample opportunities were given to the plaintiffs as can be seen from the roznama and after referring to the order passed on 16/07/2011 granted one more

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opportunity to the plaintiffs to file the written arguments to the temporary injunction application in the interest of justice on or before the next date of hearing. The trial Court thereafter has by the first impugned order on the application which was filed on 15/09/2011 along with which the rejoinder was filed passed the said order rejecting the application in so far as the plaintiffs being permitted to file rejoinder is concerned but allowing it in so far as being furnished with a copy of the written statement of the defendant no.2 is concerned. The plaintiffs thereafter filed an application for review of the said order which has been rejected by the second impugned order dated 3/07/2013.

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Heard the learned Counsel for the parties. The learned Counsel appearing on behalf of the petitioner Shri Thali would by relying upon the roznama of the case contend that there is no unjustifiable delay on the part of the plaintiffs in filing the rejoinder. The learned Counsel in support would seek to rely upon the fact that the written statement of the defendant no.2 was not furnished to the plaintiffs. The learned Counsel would contend that time was sought on some dates as the plaintiffs were not available for filing the rejoinder.

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Per contra, Shri G. Agni, the learned Counsel appearing for the

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respondent no.1 would by relying upon roznama submit that the conduct of the plaintiffs is such that disentitles them to filing of the rejoinder to the temporary injunction application. The learned Counsel would contend that inspite of 9 opportunities since the filing of the written statement by defendant no.1 which was in February, 2011 the plaintiffs have not filed their affidavit in rejoinder to the temporary injunction application and there is no justifiable reason for doing so. The learned Counsel would contend that the orders passed by the trial Court were therefore justified in the facts and circumstances of the present case.

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Having heard the learned Counsel for the parties, in my view, having regard to the well settled dictum that a party should be given an opportunity to contest the matter on merits rather than being thrown out on technicalities the instant petition is required to be allowed. No doubt there is some delay in filing the affidavit in rejoinder by the plaintiffs but the delay is not such as to non suit the plaintiffs by not permitting them to file the affidavit in rejoinder. For the inconvenience that is caused to the respondent no.1 i.e. the defendant no.1 the said defendant can be compensated by way of costs. Since the temporary injunction application is pending and since a grievance is sought to be made on behalf of the respondent no.1 herein that hearing of the said temporary injunction

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application is sought to be unduly protracted on behalf of the plaintiffs it would be just and proper to allow the above petition and issue the following directions:

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(i) The impugned order dated 12/06/2012 is

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quashed and set aside in so far as the rejection of the filing of the rejoinder by the plaintiffs is concerned. The order dated 3/07/2013 is also quashed and set aside.

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(ii) The rejoinder filed by the plaintiffs vide their application dated 15/09/2011 is directed to be taken on record by the trial Court.

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(iii) The defendant no.1 would serve and file his

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sur-rejoinder within a period of two weeks from date.

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(iv) In any event, the pleadings to be completed within a maximum period of three weeks from date.

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(v) The trial Court to hear and decide the temporary injunction application within a period of 8 weeks thereafter.

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(vi) In the facts and circumstances of the case,

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the plaintiffs to pay to the respondent no.1 costs of Rs.5,000/- within a period of two weeks from date.

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(vii) The Trial Court to decide the application for temporary injunction on its own merits and in accordance with law.

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Rule is accordingly made absolute in the aforesaid terms with parties to bear their own costs.

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R.M. SAVANT, J.

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NH/-

Shri. Leo Lamartine D'Souza Rep. by P.O.A. Shri. Jason Egidio Gomes and 3 Ors., v. Smt. Jayanti S. Karpe and Anr.

Case brief

What is this about?

What did the court decide?

Shri. Leo Lamartine D'Souza Rep. by P.O.A. Shri. Jason Egidio Gomes and 3 Ors., v. Smt. Jayanti S. Karpe and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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