1 IN THE HIGH COURT OF BOMBAY AT PANAJI APEAL FROM ORDER NO. 28 OF 2008 AND CIVIL APPLICATION NO. 71 OF 2008 WITH WRIT PETITION NO. 141 OF 2008 Shri Shaikh Vahidulla, son of Shaikh Mahakumoddin, 50 years of age, married, Indian National, Advocate, resident of E-13, Govt. Quarters, Altinho, Panaji Goa. ... Appellant V e r s u s 1. M/s. Essar Builders, a partnership firm constituted and registered under Indian Partnership Act, 1932, having office at 3rd Floor, Souza Towers, Opp. Municipal Garden, Panaji Goa. 2. Shri Sadique Shaikh, major, married, Indian National, businessman, C/o M/s. Essar Builders, 3rd Floor, Souza Towers, Opp. Municipal Garden, Panaji Goa. 2 3. Shri Rajendra Narkar, major, married, Indian National, businessman, C/o M/s. Essar Builders, 3rd Floor, Souza Towers, Opp. Municipal Garden, Panaji Goa. .... Respondents. Mr. S. G. Dessai, Senior Advocate with Mr. Pritam Talaulikar, Advocate for the appellant. Mr. J. F. Mello, Advocate for the respondents. CORAM : U. D. SALVI, J. DATE : 3 rd APRIL, 2009. ORAL ORDER : Grievance is made by the appellant - Shri Shaikh Vahidulla, that without giving hearing to him, the learned Trial Court – Civil Judge Senior Division, Panaji Goa, disposed of an application of the respondents/defendants for condonation of delay and leave to file 3 written statement in favour of the defendants and thereafter, proceeded to dismiss his application for temporary injunction taking into account the written statement of the defendants which was earlier not taken on record. In order to seek redressal of this grievance, the appellant - Shri Shaikh Vahidulla has preferred this Writ Petition bearing No. 141 of 2008 challenging the order granting leave to file written statement to the defendants and has also preferred Appeal against the Order No. 28 of 2008 against the order refusing the temporary injunction both passed by the Civil Judge ( S. D.) Panaji Goa, below the applications Exhibit 11 and 4 respectively, in Special Civil Suit No. 41/2007/A. 2. According to the appellant/plaintiff, he has instituted a Special Civil Suit No. 41/2007/A for Specific Performance of the Agreement concerning, a duplex bungalow, situated at plot no. 19 of the property surveyed under Chalta No. 35 of PT Sheet No. 143 of City Survey, Panaji and two plots of land at Candola Village; and had moved therein an application for temporary injunction apprehending 4 that the defendant no.1 - M/s Essar Builders and two others were to create third party right in respect of two plots and one bungalow; and learned Trial Court, thereupon issued directions to defendants not to create any third party right as regards the suit bungalow and plots till the disposal of the application for temporary injunction on 31.7.2007. 3. Learned Senior Advocate Shri S. G. Dessai for the appellant pointed out from the notings in the Roznama of the said suit and the impugned orders that at no time the learned Trial Court heard the parties before pronouncing the impugned orders on 28.11.2007 and therefore, there was clear violation of the precious constitutional right of being heard before passing any judicial order. Learned Advocate J. F. Mello for the respondents, submitted that one has to go through the observations of the learned Trial Court in the judgment itself regarding the fact of hearing the parties and no meaning contrary to what is recorded in the judgment in that regard can be construed unless one agitates such issue before the Trial 5 Court itself and such grievance cannot be raised before Appellate Court for the first time. He cited judgments reported in 2005(1) ALL MR 678 ( Paul Niklav Rodrigues and Anr. V/s Anthony Domnic D'Souza ) and 2007(2) ALL MR 301 ( Shri Waghjai Devi Endowment Trust, Kusgaon & Ors. V/s Sanjiv Kashinath Vare & Ors. ), in support of his submissions. 4. Perusal of the Roznama reveals that learned Trial Court did observe that time limit prescribed for filing written statement had expired and no further time can be granted to file written statement and reply later than 31.7.2007; and on 29.8.2007 application Exhibit 11 for condonation of delay and leave to file written statement came to be filed and the suit was posted for reply to the said application and for arguments respectively. Notings in the Roznama made subsequent thereto reveal that the suit was further adjourned and fixed for arguments on the tempoary injunction and reply to the application Exhibit 11 on 6.10.2007 and 20.10.2007 successively. Roznama further reveals that on 20.10.2007, the learned Trial Court 6 observed that due to heavy load of work, no further date for oral arguments could be fixed and the suit was posted for written arguments to next date i.e., 28.11.2007. 5. What happened on 28.11.2007 is of material interest. According to the Roznama entry, orders came to be passed below the application Exhibit 11 and the leave for taking the written statement on record was granted. Immediately, following thereto, the Roznama entry reveals, the order rejecting the temporary injunction came to be passed. Conspicuosly, there is no reference to any written arguments or to the fact of hearing of the oral submissions of either of the rival parties. 6. On this background, one has to appreciate the observations of the learned Trial Court who has passed the impugned orders below the applications Exhibit 11 and Exhibit 4. Interestingly, both the impugned orders record identical observations regarding hearing given to the parties in following terms : 7 “In course of arguments, opportunity was given to learned Advocate Shri S. Dessai, to file written arguments on behalf of the plaintiff before the date of order. On the other side, similar opportunity was given to learned Advocate Shri O. Fernandes, on behalf of the defendants”. 7. Nothing further is found recorded in the impugned orders in respect of hearing given to the parties before passing impugned orders. If these observations are read in conjunction with the entries in the Roznama, one can clearly find that the learned Trial Court was making reference to the notings regarding the events which happened on 20.10.2007. Obviously, therefore, it does not pertain to event of actually hearing the submissions of the parties before passing the impugned orders. No clarification is, therefore, needed to understand what is recorded in the impugned orders regarding hearing given to the parties. There is also no discrepancy between the judgment and the recording of the Roznama. No correction is, therefore, needed to be made in straightening the record. In the 8 result, the judgments cited by the respondents, do not find application to the facts urged before this Court. 8. Nothing further, therefore, is needed to lend assurance to the fact that the parties were not heard before passing the impugned orders. It was, therefore, incumbent upon the learned Trial Court to have heard the parties before passing the impugned orders. 9. Order dated 28.11.2007 passed below the applications for leave to file written statement Exhibit 11 and temporary injunction Exhibit 4 are set aside. The appellant/plaintiff shall file written arguments in connection with the applications Exhibit 4 and Exhibit 11 before the learned Civil Judge Senior Division, Panaji Goa, on 22.04.2009 and shall furnish a copy of the same to the respondents on or before 15.04.2009. Leave is granted to the appellant/plaintiff to file reply to the application Exhibit 11 and rejoinder to the reply of the respondents/defendants to the injunction application Exhibit 4, if any. Both the applications shall be heard and disposed off 9 expeditiously as early as possible. 10. It is further clarified that this Court has not expressed any opinion regarding the merits of the said applications and the Trial Court is free to pass the appropriate orders according to law. This Appeal and Civil Application No. 71 of 2008 with Writ Petition No. 141 of 2008 stand disposed off accordingly, with no order as to costs. U. D. SALVI, J. at*