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Judgment
A.P. Lavande, J.—Heard Mr. A.F. Diniz, learned Counsel for the appellant and Mr. Sudin Usgaonkar, learned Counsel for the respondent Nos. 1 to 7. Respondent No. 8 is a formal party.
Admit. By consent heard forthwith.
By this appeal, the appellant challenges the order dated 15.6.2010 passed by the learned Civil Judge, Senior Division, Panaji, dismissing the CMA No. 41/2007 in Special Civil Suit No. 8/1997/B, in so far it pertains to Order XXXIX Rule 11 C.P.C.
The appellant is the plaintiff in the above suit filed against the respondents/defendants. During the pendency of the suit the plaintiff filed an application dated 2.6.2007 under Order XXXIX Rule 2A and 11 of C.P.C. alleging that Order dated 19.6.1997 passed by the Court restraining the defendants from alienating the suit property or creating any third party right in respect of the suit property was breached by defendant Nos. 1 to 7 and as such their defence be struck off. In support of the application the plaintiff examined two witnesses and the respondent Nos. 1 to 7 examined one witness. The Trial Judge by impugned Order dismissed the application primarily relying upon the paper cutting upon which reliance was placed by the plaintiff in the plaint.
Mr. Diniz, learned Counsel for the appellant submitted that the trial Court was bound to discuss the evidence led by the parties before giving a finding on the application filed under Order XXXIX Rule 2A and 11 of the C.P.C. He further submitted that in the impugned Order there is absolutely no reference to the evidence led by the parties and on this ground alone the impugned order is liable to be set aside and matter remanded to the trial Court for fresh adjudication. Mr. Diniz, further submitted that the trial Court was bound to give reasons for dismissing the application filed by the plaintiff.
Mr. Usgaonkar learned Counsel appearing for the respondent Nos. 1 to 7 has supported the impugned Judgment and submitted that the trial Court has considered the materials placed before it by both the parties while passing the impugned Order.
I have considered the rival contentions and perused the record.
Perusal of the impugned Order discloses that the trial Court has not made any reference to the evidence led by the parties in support of their respective claims. The Court dealing with the application under Order XXXIX Rule 2A and 11 of C.P.C. is bound to analyse the evidence led by the parties and thereafter record the findings giving reasons thereof. Perusal of the impugned Order discloses that this exercise has not been undertaken by the trial Court. On this ground alone the impugned Order is liable to set aside and is hereby set aside.
For the reasons aforesaid, the impugned order dated 15.6.2010 passed by the learned Civil Judge, Senior Division, Panaji in CMA No. 41/2007 in Special Civil Suit No. 8/1997/A is quashed and set aside and the trial Court is directed to decide the application afresh after giving an opportunity of being heard to both sides and in the light of the observations made herein above.
Appeal is disposed of in aforesaid terms with no order as to costs.