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M/S. Diksha Holdings Limited vs Comunidade Of Poinguinim And Ors. on 16 August, 2019

Bench: L. Nageswara Rao, Hemant Gupta

                                                  1



                               IN THE SUPREME COURT OF INDIA
                                CIVIL APPELLATE JURISDICTION

                                 CIVIL APPEAL NO. 6349 OF 2019
                           (Arising out of SLP (Civil) No.29892 of 2015)

             M/s. Diksha Holdings Limited                  .... Appellant (s)

                                            Versus

          Comunidade of Poinguinim
          & Others                                       …. Respondent (s)




                                             ORDER

Leave granted.

The Respondent filed regular Civil Suit No.243 of 1997 which was later re-numbered as 276 of 2004 against the predecessors and interest of the Appellant. The said suit was dismissed for default for non-prosecution on 01.06.2016. Today we have disposed of the Special Leave Petition filed against the judgment of the High Court as having become Signature Not Verified Digitally signed by SUKHBIR PAUL KAUR infructuous.

17:25:00 IST Reason:  2 Regular Civil Suit No.3 of 1999 was filed by the Respondent for injunction. The claim for injunction was on the basis of title. The Appellant who purchased the property from late Smt. Padmavati Raje and her son, resisted the Suit. The trial court dismissed the Civil Suit and held that the Appellant has successfully prayed his title to the property. The judgment of the trial court was affirmed by the First Appellate Court. The High Court while deciding the Second Appeal filed by the Respondent held that the judgments of the courts below did not call for any interference and that the courts below were justified in dismissing the suit. However, the High Court was of the opinion that the issue of title could not have been decided by the courts below in the absence of any relief of declaration of title sought by the Plaintiff.

Mr. Shyam Divan, learned senior counsel appearing for the Appellant submits that two questions of law were framed by the High Court. While answering the first question of law, the High Court was of the opinion that no case was made out for interference and upheld the judgments of the courts below. Having concluded that the judgments of the courts below did  3 not warrant any interference, the High Court ought not to have proceeded further to decide whether the trial court and the First Appellate Court were right in deciding the point of title.

As the Respondent did not enter appearance in spite of receipt of notice, we requested Mr. Devashish Bharuka, learned counsel to appear for the Respondent.

Mr. Bharuka took us through the provisions of the CPC especially Order 14 Rule 2 and Order 20 Rule 5 to submit that the issues framed by the Civil Suit have to be decided. However, he contended that there was no necessity for deciding the title in a suit which was filed for injunction simpliciter.

Admittedly, the issue pertaining to title was framed by the Civil Suit. Necessarily the said issue had to be decided by the trial court. Having found no ground for interference, the High Court ought not to have proceeded further to hold that the issue pertaining to title could not have been decided by the trial court and the First Appellant Court.

We reverse the said finding recorded by the High Court, that the Courts below went wrong in adjudging the issue of title. The Appeal is accordingly, disposed of. Pending application(s), if any, stand disposed of.

We record our appreciation for the assistance rendered by Mr. Devashish Bharuka, learned counsel.

……….......................J. [ L. NAGESWARA RAO] ...........................J. [ HEMANT GUPTA ] New Delhi, August 16, 2019.

ITEM NO.44                 COURT NO.7                SECTION IX

                S U P R E M E C O U R T O F      I N D I A
                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)     No(s).31260/2015

(Arising out of impugned final judgment and order dated 18-04-2015 in FA No. 40/2009 passed by the High Court Of Judicature At Bombayj At Goa) M/S.DIKSHA HOLDINGS LIMITED Petitioner(s) VERSUS COMUNIDADE OF POINGUINIM AND ORS. Respondent(s) WITH SLP(C) No. 29892/2015 (IX) Date : 16-08-2019 These matters were called on for hearing today. CORAM :

HON'BLE MR. JUSTICE L. NAGESWARA RAO HON'BLE MR. JUSTICE HEMANT GUPTA For Petitioner(s) Mr. Shyam Divan,Sr.Adv.

Ms. Binu Tamta,Adv.

Mr. Dhruv Tamta,Adv.

For Respondent(s) Mr. Devashish Bharuka,Adv.(A.C.) Mr. Ravi Bharuka,Adv.

Ms. Sarvshree,Adv.

Mr. Justine George,Adv. Mr. Aditya Singhal,Adv.

Mr. Pratap Venugopal,Adv. Ms. Surekha Raman,Adv. Mr. Akhil Abraham Roy,Adv. M/S.K J John And Co, AOR UPON hearing the counsel the Court made the following O R D E R SLP(C) No.31260/2015:

By the impugned judgment, the High Court set aside the judgment of the District Judge - 4, Margao and restored Civil Suit No.276 of 2004. Mr. Shyam  6 Divan, learned senior counsel appearing for the petitioner furnished a judgment of the District Judge dated 01.06.2016 by which the Civil Suit No.276 of 2004 was dismissed for default and non-prosecution. To his knowledge, no steps have been taken for restoration of the said Civil Suit. The learned senior counsel seeks liberty to pursue the remedies open to the petitioner in case the said Civil Suit is restored. We grant liberty to the petitioner to pursue his remedies in case the civil Suit is restored. With the aforesaid observations, we do not see any reason to keep this Special Leave Petition pending.

The Special Leave Petition is, dismissed, as having become infructuous.

SLP(C) No. 29892/2015:

Leave granted.

The civil appeal is disposed of in terms of the signed order.

(B.Parvathi)                                  (Sunil Kumar Rajvanshi)
Court Master                                        Court Master

(Signed order is placed on the file)