SHRIPAD GANESH NAIK Vs. BHIKU GANESH NAIK

JUDGEMENT

(1.) Heard Shri I. Agha, learned Counsel appearing for the appellants and Shri V. Naik, learned Counsel appearing for the respondent no.1. Admit on the following substantial question of law : Whether the Lower Appellate Court has complied with the provisions of Order 41 Rule 31 of Civil Procedure Code whilst passing the impugned judgment in Regular Civil Appeal No. 147/2010 Heard forthwith by consent of learned Counsels. Shri V. Naik, learned Counsel waives service on behalf of respondent no.1. The above appeal challenges the judgment dated 23.08.2010 passed by the learned Ad-hoc District Judge-1, FTC, Panaji, in Regular Civil Appeal No. 147/2010 whereby the appeal preferred by the respondent no.1 was disposed of inter-alia setting aside the judgment and decree dated 12.01.2010 passed by the learned Civil Judge Junior Division, Ponda, in Regular Civil Suit No. 87/2008/C. The learned Lower Appellate Court partly decreed the suit filed by the appellants and the respondent no.1 was restrained from doing any further construction in the suit area beyond the plinth area of the existing structures. The counter claim filed by the respondent no.1 was also partly decreed and the appellants were restrained from doing any construction in the suit area beyond the plinth of the existing structure.

(2.) Shri Agha, learned Counsel appearing for the appellants has assailed the impugned judgment and pointed out that the Lower Appellate Court has not at all scrutinized the evidence on record whilst disposing of the appeal filed by the respondent no.1. The learned Counsel has taken me through the impugned judgment and pointed out that there is no independent discussion carried out by the Lower Appellate Court whilst disposing of the appeal preferred by the respondent no.1. The learned Counsel further pointed out that there was a specific defence taken by the appellants to the effect that the counter claim filed by the respondent no.1 was barred by law of limitation. The learned Counsel further pointed out that this aspect which was raised by the appellants has not even been considered by the Lower Appellate Court. The learned Counsel further pointed out that the effect of the impugned judgment is that both the parties have been permanently restrained from carrying out any construction in their respective properties which is something unheard in law.

(3.) Without going into the correctness of the rival contentions on merits, I find it appropriate in the interest of justice that the impugned judgment passed by the Lower Appellate Court deserves to be quashed and set aside and the Lower Appellate Court be directed to decide the appeal filed by the respondent no.1 a fresh after hearing the parties in accordance with law. In view of the above, I pass the following : ORDER