1 IN THE HIGH COURT OF BOMBAY AT GOA. APPEAL FROM ORDER NO.85 OF 2008. Mr. Bento Luciano Fernandes, Major of age, Married, Resident of House No. 417 ( 1 ), Ashvem, Mandrem, Pernem – Goa. ... Appellant. V e r s u s Mr. Pedro Joao Benjamin Fernandes, Major of age, Married, Resident of House No. 417 ( 2 ), Ashvem, Mandrem, Pernem - Goa. ...Respondent. Mr. S. Lotlikar, Sr. Advocate for the Appellant. Mr. V. Menezes, Advocate for the Respondent. CORAM: A. H. JOSHI. J., DATE: 30th July, 2009. ORDER 1. Heard learned Senior Advocate Shri Lotlikar for the appellant and of the learned Advocate Shri V. Menezes, for the respondent. 2. In the midst of hearing, it has transpired that the learned trial 2 Judge has recorded the submission of the respondent, in para 8, which reads as follows:- “ 8. It is the objection raised by the defendant that the present suit needs to be dismissed and bad in law as the same is hit by the principle of res-judicata. The plaintiff has suppressed the material facts from this court by not disclosing about the earlier suit which was disposed off in a dismissal filed by the plaintiff. The plaintiff even preferred an appeal against the said judgment and decree passed in RCS NO.92/01 which appeal was registered bearing No.175/2004 and dismissed the said appeal accordingly. Hence, finding of the court that the properties purchased by them are mutually partitioned and enjoyed separately by them, according to the oral partition has become final and conclusive. ( quoted from pages 39 and 40 of paper book ). 3. It is further seen that the learned trial judge has felt content on discussing about the contents of order passed by the Dy. Collector in case bearing No. Land Revenue Appeal/16/2008 and Misc/AP/48/08/Stay/LRA. Though the trial court has referred to the Special Civil Suit in para 17 did not discuss about the facts and consequences of the point of res-judicata raised by the appellant herein. 4. Parties therefore do not dispute that this order exhibits lack of application of mind and lack of proper reasons in the impugned order. 5. In this situation, both the learned advocates do not dispute that the 3 case would require the remand being necessary, in the interest of both parties this court may not express or record findings in relation to rights of parties and the merits. 6. In these premises it is considered necessary that instead of recording detailed reasons, the interest of justice would be served if this court allows the appeal and remands the case for hearing and disposal of application for temporary injunction by setting aside impugned order dated 25.6.2008. 7. Parties agrees that they appear in the trial court on 17.8.2009, and are accordingly directed. 8. Parties are at liberty to file further application, documents etc. as advised, touching the maintainability of suit. 9. The trial Judge is directed to hear and decide application raising objections as to maintainability of the suit as well as the application for temporary injunction within 3 months from the date of appearance fixed by this court. A. H. JOSHI., J. ah/- 4