SHAMBA KHULU GAUDO Vs. LADU MENGO ZALMI

JUDGEMENT

(1.) A short reference to the facts is necessary to dispose of this Revision Application. A suit has been filed against the petitioner and an application for temporary injunction has been moved to restrain the petitioner from erecting a compound wall around a property that he had purchased. The learned Civil Judge, Senior Division, Ponde, by his order dated 18th Nov., 1986, confirmed the ex parte injunction earlier granted by him on 5th Aug., 1986. However, after having confirmed the said ex parte injunction, he further added that the defendant No. 1 in the suit/petitioner herein was permitted to erect the compound wall around the property purchased by him from the defendant No.2, if the said property was demarcated by a surveyor. He further stated that the petitioner was at liberty to apply to the court for the appointment of a surveyor to demarcate the property purchased by him. Pursuant to this order, the petitioner moved the Court for the appointment of a surveyor to demarcate the aforesaid property. This application was allowed and the appointed surveyor demarcated the property and submitted his report. At this stage, objections wer6 raised by the respondent which were, ultimately, disposed by the learned-Trial Judge by his. order dated 4th July, 1988. The learned Trial Judge has by the said order restrained the petitioner from erecting the compound wall. Being dissatisfied with this order, the petitioner filed an appeal against it in the District Court, Panaji. However, an objection was raised by the office by saying that the appellant has not cited under what provision of law, the appeal has been filed but it appeared that no appeal was lying against the impugned order. The learned District Judge passed an order directing the appellant to remove the Office objection within ten days. It appears that the appellant did not remove the said objection to the satisfaction of the Office of the District Court, since on 30th Aug., 1988, a note was recorded by the Assistant Superintendent to the effect that the appellant's advocate has filed his reply to the objection but has not cited the relevant provision under which the appeal has been filed. Then, the learned District Judge passed the impugned Order on 31st Jan., 1989, whereby he held that objections had not been removed, and therefore, no appeal was lying against the Order sought to be challenged. It is against this order that tire present Revision Application is filed.

(2.) The impugned Order reads as under:

(3.) It is obvious that the learned District Judge had held that no appeal lies against the order sought to be challenged, because in his view, the order was not falling within the purview of any of the clauses of Rule 1 of Order 43 of Code of Civil Procedure and also because Mr. Kolwalkar had not cited any provision of law or authority in support of his submission that the appeal was lying. The learned judge, however, did not care to do the elemental thing that was necessary, namely to address himself to the order sought to be challenged and to see under that Sec. of law the said order had been filed. Had he applied his mind to the said order, he would have, naturally, and without any difficulty, arrived at the finding that the order sought to be challenged was an order modifying the earlier order of injunction made by the Trial Court on 18th Nov., 1986. Therefore, obviously, the order sought to be challenged was passed under Rule 4 of Order 39 of Civil Procedure Code. Such an order is appealable as provided in Order 43, Rule 1 of the Civil Procedure Code. This being so, manifestly, the impugned Order is illegal and liable to be set aside.