Appeal from Order No. 2 of 2016. Case: Manicabai N. Tendulkar Vs The Chief Officer, Mapusa Municipal Council. High Court of Bombay (India)
| Case Number | Appeal from Order No. 2 of 2016 |
| Counsel | For Appellant: V.P. Thali, Advocate and For Respondents: S.D. Padiyar, Advocate |
| Judges | K. L. Wadane, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXXIX Rule 39 |
| Judgement Date | February 26, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
K. L. Wadane, J.
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Heard Mr. V.P. Thali, learned Advocate appearing for the appellant and Mr. S.D. Padiyar, learned Advocate appearing for the respondent.
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Admit.
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Heard forthwith with the consent of the learned counsel appearing for the respective parties.
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Mr. S.D. Padiyar learned Counsel waives notice on behalf of the respondent.
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This appeal challenges the order dated 9.10.2015 passed under Order 39 of the CPC by the District Judge-II at Mapusa in Regular Civil Appeal No. 127/2014.
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Brief facts of the may be stated as follows:-
In the year 1904, an open land admeasuring 21.96 square metres was allotted to the father of the Shri Namdev F. Tendulkar, namely Shri Fondu Raghunath Tendulkar by the then local body i.e. "Camara Municipal de Bardez" under Portuguese Decree No. 43525. Shri Fondu R. Tendulkar was running a hair cutting saloon during his lifetime and regularly paying ground rent to the municipalities. After the death of Fondu Tendulkar in the year 1953, suit shop was run by his elder son Namdev F. Tendulkar i.e husband of the appellant. On 15.7.1968, a licence was granted to make a permanent construction and Namdev F. Tendulkar was regularly paying the ground rent to the respondent council till his death on 14.3.2003. After the death of Namdev, the appellant came in possession over the suit shop.
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On 20.3.2009 the plaintiff/appellant filed a Regular Civil Suit no. 49/2009/E in the Court of Civil Judge, Junior Division, at Mapusa against the respondent for permanent injunction. The appellant deposited the disputed amount of Rs. 17,082/- in the trial Court. The trial Court has granted temporary injunction restraining the respondent from sealing the appellant's shop. Subsequently the suit filed by the appellant/plaintiff came to be dismissed on 31.10.2014. The appellant presented the appeal bearing no. 127/2014 before the District Court at Panaji. It is further averments of the plaintiff that the respondent council illegally sealed the appellant shop pending the Regular Civil Appeal No. 127/2014, therefore, the appellant has filed the application for interim relief during the pendency of the present appeal to remove the seal put on the shop of the appellant.
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On the application for interim relief, the learned trial Court after hearing both sides passed the impugned order which reads as follows:-
Perused the written submissions. The suit property admittedly belongs to the respondents. This Court has to decide on...
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