- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. SECOND APPEAL NO. 8 OF 2010. Shri Prabhakar Sakharam Vaigankar, major, married, businessman, Resident of near Gram Panchayat Officer, Arambol, Pernem Goa. .......... Appellant. Versus 1 Rev. Fr. J. L. Fernandes, President, Our Lady of Mount Carmel Church, Arambol, Taluka Pernem-Goa. 2 Mr. Prabhakar Hari Naik, major, businessman, Resident of Siolim, Bardez, Goa. (since deceased) Represented by his legal heirs:- i] Mrs. Lata Prabhakar Naik ii] Mr. Suresh Prabhakar Naik iii] Mrs. Anuja Suresh Naik, All major, all residents of Siolim, Bardez, Goa. .......... Respondents. Mr. S. D. Lotlikar, Senior Advocate with Ms. G. Xettigar, Advocate for the Appellant. Mr. Nigel Costa Frias, Advocate for the Respondent no.1. Respondent no. 2 absent, though served. - 2 - CORAM:-A.P. LAVANDE, J. DATE:-12 th OCTOBER, 2010. ORAL JUDGMENT Heard Mr. S. D. Lotlikar, learned Senior Counsel for the appellant and Mr. N. Costa Frias, learned Counsel for the respondent no.1. None appears on behalf of the respondent no. 2 though served. 2. The appeal is admitted on the following substantial question of law. Whether the first Appellate Court failed to exercise jurisdiction vested in it by not considering the ground raised by the appellant in the memorandum of the appeal on merits and by not analysing the evidence led by the parties? 3. With the consent of the learned Counsel, the appeal is taken up for final disposal. 4. The appellant herein filed Regular Civil Suit no. 48/2000 against the respondents/defendants in the Court of the Civil Judge, Junior Division, Pernem seeking relief of recovery of possession of - 3 - the suit premises. The suit was contested by the defendants. The plaintiff examined himself in support of his case. The defendant no. 1 stepped in the box. The trial Court by the Judgment and decree dated 27.11.2001, dismissed the suit. 5. The plaintiff filed Regular Civil Appeal no. 8/2002 in the District Court, North Goa Panaji, which was made over to District Judge-III. In the memorandum of appeal several grounds were urged in support of the appeal. The first Appellate Court by the Judgment and decree dated 29.9.2008, dismissed the appeal and confirmed the decree passed by the learned trial Court. 6. Mr. Lotlikar, learned Senior Counsel for the appellant submitted that bare perusal of the impugned Judgment discloses that arguments advanced on behalf of the appellant has not been mentioned nor evidence led by the parties has been analysed by the lower Appellate Court. Mr. Lotlikar, further submitted that being the first Appellate Court it was final Court of facts as also of law as held by the Apex Court in the case of Santosh Hazari Vs. Purshottam Tiwari, (dec) by L.R's (2001) 3 SCC 179. Mr. Lotlikar, further submitted that the lower Appellate Court has not considered the - 4 - arguments advanced on behalf of the appellant and as such has not exercised jurisdiction in accordance with the settled principles laid down in the case of Santosh Hazari(supra) although the lower Appellate Court has made a reference to the said Judgment. 7. Mr. Costa Frias, learned counsel for the respondent no.1 has supported the impugned Judgment. 8. Perusal of the impugned Judgment passed by the lower Appellate Court discloses that nowhere in the judgment, lower Appellate Court has mentioned arguments advanced on behalf of the appellant. According to Mr. Lotlikar, learned Senior Counsel grounds urged in the memorandum of appeal were canvased before the lower Appellate Court which submission has not been seriously disputed by the learned Counsel for the respondent no.1 This being the position, I find merit in the submission of the learned Counsel Mr. Lotlikar that the lower Appellate Court has failed to exercise the jurisdiction in terms of law laid down by the Apex Court. In terms of the Judgment in the case of Santosh Hazari( supra) the Appellate Court being the final Court of facts as well as of law ought to have discussed the evidence, oral and documentary, led by both the parties and ought to - 5 - have given findings thereof. In the event the lower Appellate Court is inclined to disagree with the findings of the trial Court he is bound to give reasons for the same. In the present case the lower Appellate Court has not dealt with the arguments advanced on behalf of the appellant, and also not analysed the evidence led by the parties before the trial Court. On this count the judgment of the lower Appellate Court is liable to be set aside and is hereby set aside. The substantial question of law framed is answered in favour of the appellant. 9. For the reasons aforesaid, the impugned judgment and decree dated 29.9.2008 passed by the lower Appellate Court is quashed and set aside and the lower Appellate Court is directed to decide the appeal afresh after hearing learned counsel appearing for the parties and in accordance with law. It is made clear that I have not expressed any opinion on the merits of the rival contentions. The lower Appellate Court shall decide the appeal on its own merits. 10. Parties either personally or through their Advocates shall appear before the lower Appellate Court on 16.11.2010 at 10.00 a.m. Since the suit was filed in the year 1994, the lower Appellate Court will dispose of the appeal expeditiously. - 6 - 11. The Appeal stands disposed of on the aforesaid terms with no order as to costs. A. P. LAVANDE, J. vn*