Ulhas N. Prabhu Gaonkar v. Monica Barreto

Judgment are quoted below:

"13. On a consideration of the matter, we are afraid, the appellate bench fell into error on two important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocination as to the quality of Antox's alleged user of the trademark on which the passing-off action is founded. We shall deal with these two separately.

¶14The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will, not interfere with the exercise of discretion of the court of first instance and substitute its 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. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragad kar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721) "... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v.

Jhanaton? ...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'." The appellate judgment does not seem to defer to this principle."

¶18Perusal of the Judgment of the Appellate Court would reveal that the Appellate Court has reconsidered the decision rendered by the Mamlatdar in the Mundkar proceeding and has concluded that since the uncle of the Defendant, Saveriano, and his wife Rita Christalina, who are now deceased, the Defendant would have the right to inherit the suit house. The findings rendered are much beyond the powers vested in the Appellate Court under Order 43. It was the claim of the Defendant Monica that she was staying in the suit house prior to 2013. There are obviously no documents produced by the Defendant, to substantiate this claim, and this claim would have to be proved in evidence. However, there is now a Judgment of the Mamlatdar, considering these very same documents and arriving at the conclusion that even if Xavier was the Mundkar of the house, even though Xavier was never declared a Mundkar or has purchased the dwelling house, the Defendant Monica could not have been a successor, being the daughter of Xavier's married daughter. The Mamlatdar has also concluded that even in accordance of the Mundkar Act, Monica's mother

Victoria, could not have claimed the right of Mundkar, since she was a married daughter of original claimant Xavier; this is not a case where, Xavier's right has been decided, and these are only claims made by the Defendant that Xavier was the Mundkar of the house. It is in this background, the Appellate Court could not re-appreciate the material on record, more so when the Mamlatdar has specifically concluded that the Defendant would have no right of Mundkarship and that finding has become right.

¶19The suit house was within land under Survey No. 180/14 which admittedly belongs to the Plaintiff. There is no dispute on this fact. Prima facie therefore, when the Defendant has not shown any title to the suit house, even though the House tax and Electricity Bill stood in the name of her uncle and grandfather, that would not entitle her to claim possession. All that the Trial Court did was to preserve the subject matter of the suit until the final Judgment would be delivered, which is the whole aim of the interlocutory proceeding under Order 43 of CPC.

¶20The Appellate Court has therefore clearly transgressed the jurisdiction vested under Order 43 of CPC and has acted with material irregularity in interfering with the findings

rendered by the Trial Court, when there is no justification for arriving at such findings.

¶21The Trial Court has acted in clear violations of the principles laid down by the Hon'ble Supreme Court and as referred to in Wander Ltd. (supra), as to the parameters within which the Appellate Court would reverse a finding for an order given by the Trial Court on an application for temporary injunction.

¶22For all the aforementioned reasons, the impugned order passed by the District Court cannot be sustained. The impugned order is therefore quashed and set aside. The order dated

16.11.2013 shall continue in operation till the disposal of the suit or till such time as the Trial Court varies or vacates the same.

¶23Rule is made absolute in terms of prayer clause (a), which reads as under: "i) for a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order, direction of this Hon'ble Court calling for the records and case papers of Regular Civil Suit No.44/2019 from the Court of the Civil Judge Junior Division, Canacona and of the Misc. Civil Appeal No. 43/2021 from the Court of District Judge-2, FTC-II, Margao and after perusing the same and after going through the legality and propriety thereof quashing and setting aside the

impugned Judgment and Order dated

09.03.2022;"

¶24No order as to costs.

VALMIKI MENEZES, J.

Sonam IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 482 OF 2023 Shri. Ulhas N. Prabhu Gaonkar, Son of late Narayan Prabhu Gaonkar, Married, aged 64 years, R/o H. No. 539, Kolsar, Galgibaga, Painguinim, Canacona, Goa. … Petitioner Versus Mrs. Monica Barreto, W/o Mr. John Rebello, Aged 61 years, housewife, R/o H. No. 329, Madya, Sedolxem, Painguinim, Canacona, Goa. …Respondent Mr. R. G. Ramani, Senior Advocate with Mr. Pranav Shenvi Kakodkar, Advocate for the Petitioner Mr. Varun Bhandankar, Advocate for the Respondent under Free Legal Aid Scheme. CORAM : VALMIKI MENEZES, J. DATED : 5TH AUGUST, 2025. ORAL JUDGMENT: 1. Heard learned Advocate for the parties. 2025:BHC-GOA:1487 2. Rule. Rule is made returnable forthwith; at the request of and with the consent of the learned Advocates for the parties, the matter is finally heard and disposed of. Learned Advocate Mr. Pranav Shenvi Kakodkar waives service for the Petitioner and learned Advocate Mr. Varun Bhandankar, under Free Legal Aid waives service for the Respondent. 3. This is a petition which impugns Judgment and order dated 09.03.2022 passed by the District Judge-2, Fast Track Court-II South Goa, Margao in Miscellaneous Civil Application setting aside the order dated 16.11.2021, passed by Civil Judge Senior Division, Canacona in Regular Civil Suit No. 44/2019 by which an application for the temporary injunction was granted to the Plaintiff and the Defendant was, by way of temporary injunction restrained from entering or occupying the suit house and changing the nature thereof; the trial court had further directed that Defendant should remove herself and her belongings from the suit house and suit property within 30 days of the order and deposit the keys of the suit house to the Head Clerk of the Court until disposal of the suit. The Petitioner is the original Plaintiff in the suit and Respondent, whilst the Defendant. Submissions: 4. The learned Senior Advocate Mr. R. G. Ramani has advanced the following submissions: (a) The Appellate Court, exercising jurisdiction under Order 43 of CPC in an Appeal from Order which has granted the discretionary interim relief of injunction, could not have re-appreciated the material on record and come to its own conclusion; it was submitted that the conclusions and findings arrived at by the Trial Court were reasonably possible and the discretion exercised by the Trial Court was after considering the documents on record. Such findings were not open to reversal, merely because a different view was possible. It was further the arguments of learned Senior Advocate for the Petitioner that the Appellate Court has ignored the settled principle of law whilst exercising Appellate Jurisdiction against an interlocutory injunction order as laid down in Wander Ltd. V/s Antox India P. Ltd., reported in 1990 (Supp) Supreme Court Cases 727, and has instead reappraised the entire material on record to arrive at its own conclusion in substitution of the findings rendered by the Trial Court. It was submitted that unless findings of the Trial Court, after analysing the records, are perverse, arbitrary or capriciously rendered or the Trial Court has ignored the settled principles of law on grant of injunction, the Appellate Court ought not to have interfered with the discretion exercised by the Trial Court. (b) Learned Senior Advocate, after making reference to specific documents on record submits that the Trial Court had considered these documents, and rendered a finding that the possession of the suit property and the suit house just prior to the suit being filed, was with the Plaintiff; the Trial Court held that, the Plaintiff having been forcibly dispossessed, grant of the injunction in the manner done by the Trial Court was justified. Specific reference was made to the fact that the Mamlatdar in a proceeding for declaration of title of Mundkar of the suit house, at the behest of the Defendant, had dismissed an application vide order dated 23.07.2018,