Bombay High Court
Sidharth B. Purshottam Naik Dessai @ ... vs Deejay Coconut Farm Pvt. Ltd., Rep. By ... on 13 August, 2024
2024:BHC-GOA:1301
2024:BHC-GOA:1301
AO18-2024.DOC
Vinita
IN THE HIGH COURT OF BOMBAY AT GOA
APPEAL FROM ORDER NO. 18 OF 2024
WITH
CIVIL APPLICATION NO. 55 OF 2024
IN
APPEAL FROM ORDER NO. 18 OF 2024.
1 Mr. Sidharth Babusso
Purshottam Naik Dessai Alias
Sidharth Babusso Naik Dessai
Alias Sidharth Babusso Dessai
Alias Sidharth B. Dessa1, Son
of late Shri. Babuso
Purshottam Naik Dessai, Aged
about 53 years, married,
businessman, Resident of
House No. 114/2, Zariwado,
Davorlim, Salcete, Goa.
2 Mrs. Jyoti Sidharth Naik
Dessai, Wife of Mr. Sidharth
Naik Dessai, Aged 45 years,
Both resident of House No.
114/2, Zariwado, Davorlim,
Salcete -Goa.
3 Mr. Bhupesh Naik Dessai,
Aged 45 residing Near Trik
factory, Cotta-Fatorpa,
Cuncolim, Salcete Goa. .... Appellants.
Versus
M/s Deejay Coconut Farm Pvt. Ltd.,
A company registered under the
Companies Act with registered
office at St. Patrick Complex
Brigade road, Bangalore, 560025,
Earlier known as "M/s Deejay
Consultancy Serves" and authorised
representative Shri. Rhushikesh
Bhaskar Sapre, Vide resolution of
Board of Directors of M/s Deejay
Page 1 of 16
13th August 2024.
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AO18-2024.DOC
Coconut Farm Pvt. Ltd. Xelde,
Quepem, Goa, 403705. .... Respondent.
Mr. Sandesh D. Padiyar and Mr Prayash Shirodkar, Advocate for
the appellant.
Mr A. F. Diniz, Senior Advocate with Mr Ryan Menezes, Ms Gina
Almeida and Mr Nigel Fernandes, Advocate for the respondents.
_______________________
CORAM: BHARAT P. DESHPANDE, J
Reserved On: 1st August 2024
Pronounced on: 13th August 2024
JUDGMENT
1. Heard Mr S. D. Padiyar, learned counsel along with Mr P.
Shirodkar, learned counsel for the appellants and Mr A. F. Diniz,
learned Senior counsel along with R. Menezes, learned counsel for
the respondent.
2. Admit.
3. Matter is taken up for final disposal at the admission stage
itself with consent of the parties.
4. The present appeal is filed challenging the order passed by the
learned trial Court dated 16.9.2020 thereby allowing the application
filed by the respondent under Order XXXIX Rule 2(A) r/w 10 of CPC,
by striking off defence of the appellants/defendants.
5. The dispute between the parties will have to be discussed in a
nutshell. Parties are referred to as the plaintiff and the defendants as
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they appear before the trial Court. The appellants are the original
defendants wherein the respondent is the plaintiff.
6. Plaintiff filed a suit before the Civil Judge, Senior Division
Quepem bearing Special Civil Suit no.14/2019/A somewhere in
November 2019. The said suit is filed for declaration of having an
access through the property of the defendants by way of easementary
right, permanent injunction and other reliefs under Section 34 and
38 of the Specific Relief Act. Along with the suit an application for
temporary injunction was filed. On receipt of suit summons and the
notice on injunction application, defendants appeared and filed their
reply, written statement denying the case of the plaintiff. However on
5.12.2019, the plaintiff filed another application for temporary
mandatory injunction along with amendment to the plaint.
Amendment application was allowed which resulted in filing
additional written statements to the amended plaint as well as reply
to the application for temporary mandatory injunction.
7. Learned trial Court after hearing both the sides disposed of
both applications i.e. temporary injunction application as well
temporary mandatory injunction application by common order dated
30.7.2020. By this order the learned trial Court allowed the
applications by observing that the plaintiff is permitted to use the suit
access. Defendants have been directed to allow the plaintiff to use the
suit access by removing the obstacles/obstruction, if any, from the
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suit access. The plaintiff was directed to give a bank guarantee of
Rs.3,00,000/- as condition precedent so as to compensate the
defendants for any loss or damage, in the event plaintiff fails to prove
the claim.
8. Plaintiff then furnished bank guarantee on 6.8.2020 which
defendants disputed. An application for suspension of such order was
rejected by the trial Court on 18.8.2020. However, on the same day
the plaintiff filed an application under Order XXXIX Rule 2(A) r/w 10
of CPC alleging violation of the order dated 30.7.2020. Defendants
filed a reply denying all the allegations and also claiming that bank
guarantee is not properly furnished. However, the trial Court passed
the impugned order thereby striking off the defence of the defendants
which is challenged in the present appeal.
9. Mr Padiyar would first of all submit that though application for
disobedient of the injunction order is filed all the allegations made
therein were denied by the defendants and thus it was incumbent
upon the learned trial Court to conduct an inquiry so as to establish
whether there was any disobedient of its order.
10. Mr Padiyar would submit that the learned trial Court failed to
consider the pleadings and orders passed by it and without
conducting any inquiry passed the impugned order.
11. Mr Padiyar submits that observations of the learned trial Court
that there is no need to conduct inquiry is clearly against the settled
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proposition of law and without considering the material on record.
Mr Padiyar would further submits that an order of striking off
defence is therefore harsh order and ultimately prevents the
defendants from pleading its case. Before passing such harsh order,
concerned Court must satisfy itself that in fact there is disobedience,
which is wilful and deliberate. He would submit that opinion could be
reached only after conducting inquiry into the allegations but not
otherwise.
12. Mr Padiyar would submit that such orders were passed during
the Covid period and defendants also preferred an appeal against
such injunction order, however, in between the impugned order was
passed.
13. Mr Padiyar placed reliance on the following decisions:-
1. M/s V. G. Quenim Vs Bandekar Brothers
Pvt. Ltd. Goa1.
2. Sachin Y Mense Vs Shri Sunil Noronha and
ors.2
14. Per contra Mr Diniz would submit that there was no need to
conduct any inquiry as reply filed by the defendants would clearly go
to show that there was defiance of the order passed by the trial Court
which was clearly wilful in nature. He would submit that the plaintiff
was prevented from using the suit access inspite of clear orders as
defendants failed to clear the suit access by closing trenches. He
1 2018(2) ABR 67
2 2016(5) ALL MR 146
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would submit that bank guarantee was furnished as directed by Court
and an application filed by the plaintiff for clarification of such order
on bank guarantee was rejected. He would submit that once an order
is passed and there is no stay or otherwise of the order, defendants
were supposed to obey it. Such disobedience is clearly wilful and in
breach of the directions given and therefore, no interference is
required.
15. Mr Diniz placed reliance in the case of Pralhad Nagorao
Bodkhe Vs Sau. Sulochana Ramchandra Kawarkhe3.
16. Rival contentions fall for consideration.
17. Before considering the submissions, it is necessary to look into
the pleadings and more particularly the plaint. Plaintiff claimed to be
lessee of Vithaldas Y. Poi Kakode in respect of the properties as
described in paragraphs 2 and 3 of the plaint. Plaintiff claimed that
such properties were taken on lease for a period of 33 years from
1.8.2011 by registering a Lease Deed from its owner for setting up a
farm. Plaintiff runs hybrid coconut seedlings farm along with
research activities for coconut seedlings project. Said farm along with
a nursery is located in a portion of around 28,100 sq.mts and is
fenced. Mother palms are located in the property identified at
paragraph no.3 and paragraph no. 2. Due to such research activities
coconut palms of the plaintiff's company are having the highest
3 2021 (3) Bom.C.R. 57
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coconut production. They are having tie-ups with foreign countries
and farms existing in other states. Such a farm at Balli started
somewhere in the year 2012 i.e subsequent to taking over the lease of
the properties mentioned in paragraph 2 and 3 in the plaint.
18. For operating such a farm, the plaintiff is using four wheeler
and six wheeler vehicles for carrying saplings from the said farm to
different places. Similarly the plaintiff is required to carry manure,
fertilizers from various suppliers. Plaintiff employed many labourers
who are coming to the farm on a daily basis on their two wheeler
vehicle or even on foot. In order to approach the said farm, the
plaintiff is using a road which is shown in the report of Mr Amarnath
B. Dessai in red colour which is kaccha road, and it reflects in the
regional plan as 10 mts wide panchayat road, which is referred in the
plaint as a suit access.
19. Plaintiff further disclosed that the suit access starts from
Fatorpa-Morpila road and leads to the farm located in survey no.17. It
is the contention of the plaintiff that such suit access passes through
the property bearing survey no.38 which is claimed to be the property
of the defendants. It is further claimed by the plaintiff that such
kaccha road/suit access is even used by the predecessor in title of the
plaintiff for more than 50 years and thus, it is crystallised into a
prescriptive access. There is no other alternate access available to the
plaintiff to reach said farm.
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20. Plaintiff in paragraph 22 shows that during the first week of
December the defendants blocked the suit access at the main Fatorpa
Morpila road by dumping huge boulders. A complaint was lodged to
the police. Upon which defendants were directed to clear the
blockade but they refused to take such directions into consideration
and since there was possibility of breach of peace, proceedings under
Section 147 of Cr.P.C. were initiated. Sub Divisional Magistrate(SDM)
accordingly, passed an order to open the suit access with further
direction to take police protection. Accordingly, in pursuant to the
order of SDM blockade was cleared. These averments are found in
paragraph 23 of the plaint. Plaint further shows that defendants filed
Criminal Writ Petition No.166/2019 seeking quashing of the order
passed by the SDM. Said petition was allowed and order of SDM was
quashed and set aside with direction to the SDM to dispose of the
proceedings within six weeks.
21. Plaint in paragraph 24 would then show that in view of the
orders passed by the High Court setting aside the order of the Deputy
Collector, plaintiff apprehends that the defendants again would close
the suit access by dumping rubble, mud etc. or by digging trenches
and or in any other manner. Accordingly, suit is filed by making
averments in paragraph 31 that on 30.11.2019 defendants closed the
access between 5 p.m to 6 p.m in an attempt to make the plaintiff's
application for temporary injunction infructuous, after seeking time
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to file written statement and upon noting that the Court had not
given any ad-interim relief to the plaintiff. Paragraph 31 also shows
the cause of action which arose in the first week of December when
the suit access was blocked and again on 18.11.2019 when the High
Court vacated the interim relief granted by SDM.
22. Suit is for grant of declaration that the plaintiff is having
easementary right over the suit access with an amended prayer that
defendants be ordered to clear the blockade created in a suit access of
survey no. 38/1 of village Fatorpa.
23. Detailed discussions with regard to the pleadings including the
amendment, plaint is required so as to consider the obstruction of the
learned trial Court regarding inquiry.
24. Defendants in their detailed written statement denied the
allegations of having any suit access and claimed that there is an
alternate access available to the plaintiff. However, the first
application for temporary injunction is only for grant of temporary
injunction whereas second application at Exh.15 is filed for
temporary mandatory injunction.
25. Admittedly the plaint was amended. However as discussed
above it is admitted in the plaint itself that after the order of SDM
was passed, so called blockade was cleared. This statement is found in
paragraph no.23 of the plaint. Paragraph 24 of the plaint shows that
there was apprehension of further blocking the suit access. Amended
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plaint 31A would show that the defendants closed the suit access
between 5 p.m to 6 p.m on 30.11.2019. There is no specific averments
as to how suit access was closed. Similarly it is disclosed in paragraph
31A that such access was closed between 5 p.m to 6 p.m on
30.11.2019, which means that after 6 p.m on that date there was no
closure of the suit access.
26. Learned trial Court while disposing of both the applications
filed at Exh.4 and 15 observed in its order dated 30.7.2020 that
plaintiff succeeded in proving the prima facie case that there is suit
access and that earlier it was blocked. Learned trial Court observed
that there is averment made in the written statement that there was
earlier blocking which was removed pursuant to the order passed by
the Deputy Collector. Final order passed by the trial Court reads
thus:-
"Pending the hearing and final disposal of the
present suit, Defendants shall permit the plaintiff to
use the suit access by removing obstacles/
obstructions if any from the suit access"
27. The words "if any" used in the above order reflecting to the
aspect of removal of obstacles/obstructions. In the entire order dated
30.7.2020, learned trial Court failed to observe that there was any
obstacles/obstructions existing on the suit road after the so called
blockade was cleared as per order of Deputy Collector.
28. Plaintiff itself admits in paragraph 23 that so called
obstructions/blockade was cleared as per order of the Deputy
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Collector. Thereafter plaintiff had only apprehension that the
defendants may close the suit access, amended the plaint and more
particularly paragraph 31A shows that defendants closed the suit
access only between 5 p.m to 6 p.m. Thus closing the access for one
hour, even if it is accepted, would not in any manner required to be
considered as an attempt to close the suit access. Besides such
averments were denied by the defendants in their written statement
and also in the reply to the injunction application.
29. Even otherwise averments in paragraph 31A did not elaborate
as to how suit access was closed and by what means that too between
5 p.m to 6 p.m on 30.11.2019.
30. The order dated 30.7.2020 by which learned trial Court
granted temporary injunction, nowhere records a finding that after
filing of the suit and before deciding the injunction application, suit
access was closed by defendants and more particularly by creating
any obstacle/obstruction.
31. Even otherwise, the operative part of the order which is quoted
above would go to show that the plaintiff's were permitted to use the
suit access and the defendants were directed to remove
obstacles/obstructions, if any, from the suit access. The above words
would clearly go to show that such obstacles/obstructions will have to
be established by the plaintiff existing on the suit access and that too
after passing of the temporary injunction order.
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32. An application under Order XXXIX Rule 2(A) of CPC filed by
the plaintiff shows only averments in paragraph 5 that the defendants
did not clear the blockade over the suit access so as to use it by the
plaintiff. First of all there is no averment in the application filed by
the plaintiff under Order XXXIX Rule 2(A) of CPC as to how and by
what means suit access is blocked by the defendants. Words "if any"
used by the trial Court clearly shows that even the trial Court was not
confirmed that the suit access was in fact blocked by creating any
obstacle or obstruction.
33. Plaintiff was supposed to disclose in his application filed under
Order XXXIX Rule 2(A) of CPC as to when such blockade was
created and/or by what means. The allegations in the application are
casual and vague. It is for the plaintiff to satisfy the Court that inspite
of order, there is a blockade of the suit access, for the simple reason
that proceedings under Order XXXIX Rule 2(A) of CPC are drastic if
established for the disobedience of such orders. Power of the Court
could go to the extent of sending a defaulter in civil prison. In this
case defence is struck off which is also a drastic step.
34. Defendants filed a reply to the application under Order XXXIX
Rule 2(A) of CPC by denying all the allegations and more particularly
about the breach of such injunction order.
35. Learned trial Court while passing the impugned order
presumed that there was blockade, on the basis of some portion
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disclosed in the written statement and copied in the reply filed to the
application for disobedience. First of all, a written statement to the
amended plaint was filed much prior to disposing of the injunction
application. Even the plaintiff in the amended plaint admitted that
earlier blockade near the road was cleared after the order of SDM was
passed. Thereafter there is no clear averment as to when there was
any blockade of the suit road, except some vague averments found in
paragraph no. 31A of the amended plaint, which is already considered
as averments vague as vagueness could be. Even otherwise such
averments disclosed that the alleged blockade was only during 5 p.m
to 6 p.m on 30.11.2019. Thus plaintiff himself failed to disclose as to
what method was used to block the suit access.
36. Averments/pleadings of the written statements by the
defendants would go to show that some trenches were dug by other
co-owners and not by present defendants. However, such pleadings
cannot be imported into the application for disobedience so as to take
away the right of the defendants from the pleading in the written
statement.
37. Learned trial Court observed in paragraph no. 7 that there is no
need to conduct any inquiry on the ground that defendants failed to
file further replies stating that they have complied with the order.
Such observations are clearly against the settled proposition of law.
Plaintiff who approached the Court claiming disobedience of the
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order is required to prove such disobedience and more particularly
obstructions as alleged on the suit access. It is not for the defendants
to come forward and say that they have removed obstructions, if any.
Learned trial Court by observing that the defendants failed to justify
their conduct are clearly against the settled proposition of law and
more particularly while dealing with an application for disobedience
of the injunction order.
38. Learned trial Court then observed that it could be safely
inferred that defendants have wilfully failed to comply with the order
and thus no inquiry is necessary, is again a finding which is clearly
against settled proposition of law. By doing this, the learned trial
Court has in fact violated the principles of natural justice by refusing
to give an opportunity to the defendants to put up their case.
39. Learned trial Court also failed to consider its own order of
grant of injunction wherein Court clearly observed that the
defendants shall remove the obstructions/obstacles, if any, from the
suit access. This itself shows that the matter was required to be
inquired into as to whether actually there was any obstruction and
that too wilfully created by the defendants in defiance of the order of
injunction.
40. It is now well settled that any order of strike off defence is
clearly a harsh order and practically refusing the pleadings of a party
on the alleged disobedience of an order. Thus for that purpose, there
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must be cogent and convincing evidence and that too after
conducting specific inquiry in that regard. Such inquiry is necessary
when the defendants in their reply affidavit have clearly denied
disobedience of the order passed by the Court.
41. In the case of M/s V.G. Quenim (supra), a learned Single
Judge of this Court has observed that purpose of introduction of Rule
11 of Order XXXIX (Bombay amendment). Such observations are
found in paragraph 17 onwards.
42. In the case of Sachin Y Mense (supra), learned Single Judge
of this Court again considered the provisions of Order XXXIX Rule
2(A) and Rule 11 of CPC and observed that even strike off defence is
very harsh order and should be resorted to only if default is wilful and
in disobedient of the orders passed by the Courts.
43. In the case of Pralhad Nagorao Bodkhe (supra), learned
Single Judge of this Court after discussing various decisions,
observed that in that matter, there was clear breach of orders passed
by the Court and that too wilful on the part of the respondents. In
that matter a suit for partition and separate possession was filed
wherein an application for temporary injunction was granted
restraining defendants from alienating or creating third party
interest. However, defendants in defiance of such order executed and
registered two sale deeds thereby alienating the suit property in
favour of third party. Thus, the said case is distinguishable as the sale
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deeds were produced on record which clearly show that such property
was alienated inspite of the knowledge of injunction order.
44. Matter in hand is squarely distinct wherein allegations
regarding obstructions of the suit access after passing of the
injunction order is clearly vague and not giving specific details. After
the injunction order was passed by the trial Court would go to show
that obstruction, if any, will have to be removed. It therefore shows
that even the trial Court was not certain as to whether there was any
obstruction at the time of passing of such order. Otherwise the words
"if any" would not have appeared in the order.
45. For all the above reasons, the impugned order suffers from
perversity and also for failing to consider the settled proposition of
law regarding conducting inquiry into the matter when the
allegations are not certain about obstruction.
46. The impugned order is therefore quashed and set aside.
Application filed under Order XXXIX Rule 2(A) r/w Rule 10 of CPC is
accordingly dismissed.
47. Parties shall bear their own costs.
48. Appeal stands disposed of accordingly and pending
applications, if any, stand disposed of.
BHARAT P. DESHPANDE, J.
13th August 2024.
