1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition no.45 of 2011 Mr. Haroon Ebrahim s/o Ebrahim Mohammed, major, business, residing Opp. Water tanks, Altinho, Panaji-Goa. … Petitioner v e r s u s 1)Mrs. Lalita Sham Kamat, wife of Sham J. Kamat, major, accountant, r/o Nr. PWD Water Tank, Panaji, Goa. 2) Mr. Sham Jagannath Kamat, s/o Jagannath Kamat, Major, accountatn, r/o Nr. PWD Water Tank, Panaji, Goa. 3) Mrs. Maria Julieta D'Souza, Widow of Domingos Rodrigues, Major, landlady, Residing at H.No.16, Portais, Mala, Panaji, Goa. 4). Mrs. Zulmira Esperanca Perpetua Velho Rodrigues Souza, Widow of Manuel Antonio de Souza, 2 Major,service, Residing at Portugal, represented by attorney Respondent no.3. 5) Mr. Celso Manuel Rodrigues Souza s/o Manuel Antonio de Souza, Major, service, Residing at Portugal, represented by attorney Respondent no.3. 6) Mr. Victor Rui Rodrigues Souza, s/o Manuel Antonio de Souza, Major,service, Residing at Portugal, represented by attorney Respondent no.3. 7) Mr. Melwin Chico, s/o Hugo Chico, major, business, r/o Opp. Water tanks, Altinho, Panaji, Goa. 8) Mr. Egypsio Noronha Rodrigues, s/o late Antonio Rodrigues, major, business, residing at Rua 31 de Janeiro, Panaji, Goa. 9) Mrs. Maria Cassia Tereza Paiva alias Cassia Paiva Fernandes, wife of Mr. Jose A. Fernandes, major, business, residing near Circuit House, Altinho, Panaji. … Respondents 3 Mr. S.S. Kantak, Advocate for the petitioner. Mr. V.P. Thali, Advocate for the respondents. Coram: A. P. Lavande, J. Date: 21st April, 2011. ORAL JUDGMENT: Heard Mr. Kantak, learned counsel for the petitioner and Mr. Thali, learned counsel for the respondents. 2. Rule. By consent of the learned counsel heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioner has challenged order dated 24/8/2010 passed by the Ad-hoc District Judge, Fast Track Court, Mapusa in Miscellaneous Civil Appeal No.101 of 2010 by which the appeal preferred against 4 order dated 10/3/2010 passed by the Civil Judge, Junior Division, Panaji in Regular Civil Suit no.115/02/D has been allowed. 4. Respondent nos.1 and 2 filed the above referred suit against the petitioner and respondent nos.3 and 9 seeking reliefs of declaration and injunction. 5. Along with the suit, the plaintiff filed application for injunction against the defendants nos. 1 and 8. The suit as well as the application for injunction were contested by the said defendants. 6. By order dated 10/3/2010, the trial Court dismissed the application holding that the plaintiffs had not made out a prima facie case. The trial Court held that the plaintiffs had failed to show prima facie that they had right over the remaining portion of land in the possession 5 and ownership of defendant no.1 and the portion of land which the defendant no.8 had purchased from defendant no.1 by virtue of two sale deeds dated 29/10/1999. Consequently, the trial Court dismissed the suit. 7. The lower Appellate Court by the impugned order has set aside the injunction. 8. I have heard Mr. Kantak, learned counsel for the petitioner, Mr. Thali, learned counsel for the respondents. 9. I do not deem it necessary to deal in detail the submissions made by the learned counsel since the impugned order is liable to be quashed and set aside on a very short ground. Perusal of the impugned order discloses that the lower Appellate Court has not dealt with the findings given by the trial Court while reversing the 6 order passed by the trial Court. The trial Court while passing the order dated 10/3/2010 dealt with the rival contentions and gave findings in favour of the defendants nos.1 and 8. The lower Appellate Court in paragraph 9 of the order without considering the reasons given by the trial Court has held that the plaintiffs are entitled to the interim relief sought by them. 10. It is well settled that an appeal against the order granting or rejecting injunction is an appeal on principle and unless there is perversity in the findings given by the trial Court, the Appellate Court in such an appeal ought not to interfere on the ground that the Appellate Court is entitled to take a different view. In the case of Wander Ltd. And another Vs. Antox India P. Ltd.,1990 (Supp.) Supreme Court Cases 727, the Apex Court held that the Appellate Court would not interfere with the exercise of discretion of the court of first instance and substitute its 7 own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. Further it held that the appeal against exercise of discretion is said to be an appeal on principle and the Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below solely on the ground that if it had considered the matter at the trial stage it would have come to contrary conclusion. 11. I am of the considered opinion that the principle laid down by the Apex Court has been clearly lost sight of by the Lower Appellate Court. The lower Appellate Court being the final Court of fact and law was bound to consider the findings given by the trial Court before reversing an order passed by the trial Court. Admittedly, 8 the said exercise has not been undertaken by the trial Court. This indicates non-application of mind on the part of the lower Appellate Court. On this ground alone, the impugned order is liable to be set aside and is hereby quashed and set aside. 12. Learned counsel for the parties state that presently the post of Additional District Judge-I at Mapusa is lying vacant. If there is no Judge available for the said Court the learned Principal District Judge, North Goa, Panaji either herself would take up the appeal or allot the same to some other District Judge who shall dispose of the Miscellaneous Civil Appeal no.101/2010 expeditiously and in any case within a period of 30 days from the date of appearance. The parties to appear before the learned Principal District Judge, North Goa, Panaji on 7/5/2011 at 10.a.m. The learned Judge shall pass appropriate orders in the light of the directions given above. 9 13. It is made clear that I have not expressed any opinion on the merits of the rival claims. All the rival contentions of the parties are kept open. 14. The petition stands disposed of. A. P. Lavande, J. Ap/-