AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.223 OF 2006 ALONG WITH CIVIL APPLICATION NO.1387 OF 2005 Mr. Anthony Gonsalves & Anr. ... Appellants Vs. Mrs. Rosaline Gonsalves ... Respondent Mr. R.R. Sharma for the appellants. Mr. Denzil D'Mello for the respondent. CORAM : A.M. KHANWILKAR, J. DATED : 10TH JULY, 2006. P.C.:- Heard counsel for the parties. Admit. Mr. D'Mello waives service for the respondent. As a short question is involved, by consent of the parties, the appeal is taken up for hearing forthwith. This appeal from order is directed against the judgment and order dated 18/10/2005 passed by the City Civil Court at Bombay. It is not necessary to advert to the factual matrix of the case for the nature of order that I propose to pass. Suffice it to observe that the principal grievance of the AJN 2 appellants before this court is that several contentions were raised before the lower court. The lower court, however, has disposed of those contentions by a cryptic order. In that, what the lower court has considered, as can be seen from the judgment is, that the plaintiff has made out a case that she is the absolute owner of the disputed premises and is entitled to reside in her own hut to the exclusion of the appellants. The grievance of the appellants/defendants is that the basis on which the trial court has found that the plaintiff was the absolute owner is not substantiated from the record. That aspect was argued in detail at the instance of the appellants/defendants but, has not been considered in the impugned judgment. It is then contended that assuming that the respondent/plaintiff was entitled to succeed in the Notice of Motion, the relief being a mandatory order ought to be passed in exceptional situation, which case is not established by the plaintiff. Besides, the relief which has been granted in favour of the plaintiff amounts to order of eviction of the appellants/defendants from the suit premises. Such order cannot be passed in terms of provision of the Slum Act. Although these contentions were specifically raised, there is no adjudication of the said issues. In my opinion, as is rightly contended by the counsel for the respondent, without recording reasons, I am inclined to set aside the impugned judgment and restore the Notice of Motion on file of the trial court to be considered afresh in accordance with law. The trial court shall decide all issues raised by the parties on its own merits uninfluenced by the observations made in the impugned judgment or for that matter, in the present AJN 3 order. Accordingly, this appeal as well as the civil application are disposed of with no order as to costs. Parties shall appear before the trial court on 27/7/2006 at 11.00 a.m. on which date the trial court shall proceed with the Notice of Motion or assign some suitable date so that the Notice of Motion can be disposed of finally by the end of September, 2006. Till such time, parties shall maintain status-quo as of today. As has been observed in my order dated 5/4/2006, the parties shall ensure that no untoward situation is created in the suit premises. At this stage, I am informed by the counsel for the parties that the suit has been scheduled to be heard tomorrow i.e. on 11/07/2006 for recording of evidence. If the suit itself can be finally decided expeditiously, the trial court may consider that position and pass appropriate order in the Notice of Motion as may be advised. As the plaintiff is a senior citizen aged about 82 years, the trial court may dispose of the suit preferably by end of December, 2006. [A.M. KHANWILKAR, J.]