Court : Mumbai Goa
oral judgment: heard mr. r. g. ramani, learned counsel appearing for the petitioners and mr. sudesh usgaonkar, learned counsel appearing for the respondent. 2. the above petition challenges the judgment dated 16.05.2011 passed by the learned administrative tribunal in tenancy revision application no.66/2004 and misc. appln. no.257/2004 whereby the revision preferred by the respondent was allowed and the judgment passed by the learned mamlatdar dismissing the application filed by the respondent to declare him as tenant of the disputed property came to be set aside. the dispute hanging fire between the petitioners and the respondent for last four decades. it is the claim of the petitioners that the respondent is a caretaker of the disputed property which is surveyed under nos.428/3, 428/4, 408/1 and 420/1 of village shiroda in ponda taluka. the claim of the respondent is that he is the tenant of the disputed property. it is not in dispute that the disputed property is an areca nut garden. the respondent has filed a suit against the petitioners inter-alia seeking for an injunction to restrain the petitioners from interfering with the disputed property. the suit came to be decreed by the learned civil judge junior division, ponda and the appeal preferred by the petitioners before the learned district judge was allowed. in the meanwhile, the respondent has filed a revision application before this court which came to be disposed of by judgment dated 24.01.1997. while disposing of .....
Tag this Judgment!Court : Mumbai Goa
oral judgment by this petition, the petitioner questions the order passed by the learned additional sessions judge dated 20/07/2011 in criminal revision application no.7/2011 upholding the order dated 19/01/2011 passed by the learned chief judicial magistrate, margao whereby the learned chief judicial magistrate rejected the petitioner's application for cancellation of proclamation dated 05/10/2010. this proclamation was issued under section 82 of criminal procedure code because the accused / petitioner was stated to be absconding. 2. the learned counsel for the petitioner submits that the proclamation was actually served upon the petitioner or came to the knowledge of the petitioner on 16/11/2010 i.e. a day after the petitioner was required to appear before the court on 15/11/2010. 3. respondent no.1/ complainant has filed an affidavit trying to suggest that the proclamation was in fact served upon the petitioner well before 12/11/2010. a copy of the proclamation which is made available for my perusal, has an endorsement of shri a. b. kenkare, a.s.i. mapusa which unfortunately does not bear any date on which the proclamation was published at public places. this is a question, which would require evidence to be taken by the learned magistrate. the application should not have been disposed of on the basis of presumption without actually scrutinizing evidence to show as to when the proclamation was published and whether 30 days' time was available to the petitioner to appear .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard shri a.d. bhobe, learned counsel appearing for the petitioners. none for the respondents though served. 2. rule heard forthwith. the notice issued to the respondents was for disposal of the above petition at the stage of admission. 3. the above petition challenges an order passed by the learned civil judge junior division at margao dated 22/08/2012 whereby an application for amendment filed by the petitioners came to be rejected. 4. briefly, the facts as submitted by shri a.d. bhobe, learned counsel appearing for the petitioners are that the petitioners filed the suit for declaration and permanent injunction with regard to the structure located in the property of the petitioners. 5. the respondent no.1 in his written statement disputed the claim of the petitioners and inter alia claimed that he is the mundkar of the disputed premises. it is further contended that before the affidavit evidence was filed in the court the petitioners filed an application for amendment to inter alia disclose the flow of their right to the disputed premises in the suit property. it is further the contention of shri a.d. bhobe, learned counsel that amendment is only clarificatory and in no way changes the nature of the suit. the learned counsel has also taken me through the impugned order and pointed out that the learned judge has erroneously dismissed the application on the ground that trial had already started when according to him the trial had not yet begun and, as such, .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard shri a. r. kantak, learned counsel appearing for the petitioner, shri p. p. singh, learned counsel appearing for the respondent nos. 1 and 2 and shri shane dias sapeco, learned counsel appearing for the respondent no.3. 2. rule. heard forthwith by the consent of the learned counsel. 3. the learned counsel appearing for the respective respondents waive service. 4. the above petition challenges an order passed by the leaned civil judge senior division, mapusa, dated 30.11.2012 whereby an application for amendment filed by the petitioner to amend the plaint came to be rejected. 5. briefly, the facts of the case are that the petitioner filed a suit against the respondents inter-alia seeking a direction to execute a deed of rectification to the sale deed executed in favour of the petitioner and other reliefs. the suit came to be decreed by an ex-parte decree dated 12.01.1996. thereafter, the respondents filed an application to set aside the ex-parte decree and ultimately, the decree came to be set aside by the learned district judge by judgment dated 06.01.2012. subsequently, the respondents were permitted to file their written statement to the suit. after such written statement was filed, the petitioner found it necessary to amend the plaint to rectify the sale deed as according to him there are some defects in the plaint which are more clarificatory in nature. the learned judge by the impugned order dated 30.11.2012 rejected the said application. being .....
Tag this Judgment!Court : Mumbai Goa
oral judgment:- heard shri shivan desai, learned counsel appearing for the petitioners and shri a. d. bhobe, learned counsel appearing for the respondent no.1. 2. the above petition challenges the judgment passed by the learned administrative tribunal dated 14.07.2010 whereby the tenancy revision preferred by the respondent no.1 came to be allowed and the application for condonation of delay filed by the petitioners before the dy. collector along with the application for leave to challenge the judgment passed by the learned mamlatdar came to be quashed and set aside. 3. shri desai, learned counsel appearing for the petitioners has assailed the impugned judgment on the ground that the dy. collector upon appreciating the evidence on record has come to the conclusion that the petitioners have made out a case to condone the delay. the learned counsel has pointed out that the petitioners have filed an application for condonation of delay immediately after they learnt about the order passed by the learned mamlatdar before the learned dy. collector who after appreciating the contentions raised by both the parties found favour with the explanation given by the petitioners and condoned the delay. the learned counsel further pointed out that the dy. collector on the basis of appreciating material on record has further found that sub-delegated attorney of the petitioners by name nitin kudav who had filed an application to recall the order of the learned mamlatdar was not authorised to .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard shri s. d. lotlikar, learned senior counsel appearing for the petitioner and shri j. vaz, learned special public prosecutor appearing for the respondents. 2. rule. by consent heard forthwith. 3. the learned counsel appearing for the respondents waives service. 4. the above petition challenges an order passed by the learned special judge, n.d.p.s., court dated 25.10.2012 whereby an application filed by the respondents under section 36-a(4) of the n.d.p.s. act, 1985 for extension of time came to be partly allowed and the period was extended for a period of 90 days. 5. shri s. d. lotlikar, learned senior counsel appearing for the petitioner has assailed the impugned order essentially on the ground that this court by order dated 15.10.2012 had remanded the matter to the learned special judge to decide the extension as prayed by the respondents afresh in accordance with the material as available as on 01.09.2012 after hearing the parties in accordance with law. shri s. d. lotlikar, learned senior counsel has pointed out that the learned special judge though has accepted the ratio as laid down by the apex court in the judgment reported in (2009)17 scc page 631 in the case of sanjay kumar kedia v/s intelligence officer, narcotics control bureau and another, to the effect that the seriousness of the offence should not be considered at the time of granting such application nevertheless while disposing of the application, the learned special judge has been carried .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: heard shri shivan desai, learned counsel appearing for the petitioner and shri m. salkar, learned counsel appearing for respondent no.1. 2. rule. heard forthwith with the consent of the learned counsel. shri salkar, learned counsel appearing for respondent no.1 waives service. the notice was issued to the respondents that the above petition may be disposed of finally at the stage of admission. none appears for the remaining respondents. 3. the short point for consideration in the above petition is that an application filed by the petitioner for modification of an order of temporary injunction passed by the learned civil judge senior division at panjim by order dated 9/01/2012 whereby the learned judge inter alia directed the petitioner to deposit a sum of rs. 1,50,00,000/- (rupees one crore fifty lacs only) before the court be modified to the extent that instead of depositing the amount the petitioner would furnish a bank guarantee for the said amount came to be dismissed. 4. the learned judge by the impugned order dated 30/06/2012 has dismissed the said application essentially on the ground that the contentions of the petitioner do not come within the provisions of order 39 rule 4 of the civil procedure code. 5. shri shivan desai, learned counsel appearing for the petitioner has assailed the impugned order on the ground that the petitioner only desires to secure the amount directed to be deposited by the learned judge whilst disposing of the application for .....
Tag this Judgment!Court : Mumbai Goa
u.v. bakre, j. the above second appeal is filed by the plaintiffs of regular civil suit no. 397/88/jr. 2. the plaintiffs had filed the said suit for permanent injunction restraining the defendants, their agents, servants and/or any other persons acting on their behalf, from interfering in any manner with the suit access. 3. case of the plaintiffs, in short, was as follows:- they are occupying a house as mundkars situated in the suit property bearing survey no. 229/25 of calangute village, for more than 50 years. the suit property is land locked and on the southern side of the same there is a property managed and looked after by the defendants, beyond which there exists a public road. the plaintiffs were always using an access having width of about 3 metres leading from the public road to the suit property, through this property of the defendants since the time they and their family members started occupying the house in the suit property. the said property of the defendants bears survey no. 229/33 and the suit access is being used as motorable access since time immemorial, openly, peacefully and without any interference from anybody and that it is the only access available to them to go to the public road. the suit access is also a traditional access and as a right of necessity and customary easement for them. in the month of august, 1998, defendants brought two trucks load of mud in their property and two days thereafter they planted coconut saplings in order to obstruct the .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: the above two appeals are taken up jointly for disposal as they pertain to the land adjacent to one another acquired under the same notification under section 4(1) of the land acquisition act, 1894 (l.a. act). 2. land was acquired for construction of a road from querim to dyghode in ponda taluka. the notification under section 4(1) of the l.a. act was published in the official gazette dated 7/2/1989. this, inter alia, included land from survey nos. 101/1 and 105/1 of village priol of ponda taluka. an area admeasuring 380 square metres was acquired from survey no. 101/1 (part) and an area of 1250 square metres was acquired from survey no. 105/1. the appellant of f. a. no. 323/2003 had laid claim for undivided 50% share in the said acquired land. the remaining 50% share belonged to shri sadanand g. s. priolkar. the said acquisition, inter alia, also included land from survey nos. 101/3 and 102/1. an area of 310 square metres was acquired from survey no. 101/3 (part) whereas an area of 1775 square metres was acquired from survey no.102/1. the appellant of f. a. no. 324/2003 had laid his claim to the said acquired land. the learned land acquisition officer (l.a.o.), by award dated 25/10/1991 awarded the universal rate of rs. 6/- per square metre to the entire land acquired vide the said notification under section 4(1) of the l.a. act, published on 7/2/1989. 3. not being satisfied with the offer made by the l.a.o., both the appellants filed applications under .....
Tag this Judgment!Court : Mumbai Goa
oral judgment: 1. heard 2. rule, returnable forthwith. 3. shri mangeshkar, learned counsel waives notice on behalf of respondent no.1, who is only the contesting party to this petition. 4. the only point which arises for consideration in this case is:- whether the impugned order dated 16.2.2013 allowing counter claim of respondent no.1 passed by learned civil judge, senior division, ponda is illegal and arbitrary? 5. the facts leading to the presentation of the present petition are stated in brief as under:- the petitioners are the plaintiffs who had filed a suit against respondent no.1 and 2 for specific performance of the agreement dated 14.08.1996 and for damages. plaint was presented in the month of august, 2007. it was resisted by respondent no.1 who filed his written statement dated 1.4.2008. the dispute between the petitioners and respondent no.1 revolves around the delivery of second flat, s-2, as a part consideration of the agreement for sale of the suit plot executed between the petitioners and respondent no.1. this flat was having an area of 75 sq. mts and after construction of the building, it was revealed that this flat was having an area of 94 sq. mts and not of 75 sq. mts. therefore, respondent no.1 requested the petitioners to pay up for the difference amount of the cost of this flat, which was of rs.81,000/-. first flat that was to be delivered to the petitioners as part consideration was also having an area of 94 sq. mts instead of agreed area of 75 sq. mts .....
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