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Bombay High Court

ALLEN GERALD DSILVA S/O MR. JOHN BAPTIST DSILVAversusGRACE AUGUSTINE PINTO W/O MR. AUGUSTINE PINTO AND ORS.

Decided
Disposal
Disposed Off

Holding

The court disposed of the interim application but granted leave to move a proper application to recall the order.

Summary

Allen Gerald D’Silva appealed an order dated 30 June 2021 that temporarily restrained him from disturbing the possession of premises claimed by Grace A. Pinto. The appellant filed Interim Application No.3036 of 2022, contending that the respondents' Notice of Motion No.1200 of 2021 was not supported by an affidavit and therefore was not maintainable. He sought a recall of the restraining order on that ground. The High Court granted leave to move a proper application to recall the order but held that the interim application itself could not survive. Consequently, the interim application was disposed of while the parties' substantive contentions were left open for further determination.

Issues considered

  • Whether a notice of motion filed without an affidavit is maintainable.
  • Whether the order dated 30 June 2021 restraining the appellant can be recalled pending appeal.
  • Whether the interim application seeking recall of the order is itself maintainable.

Subjects

  • interim application
  • recall of order
  • affidavit requirement
  • maintainability of notice of motion
  • possession
  • civil appellate jurisdiction

Judgment

                                            21-IA-3036-2022.odt



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

              INTERIM APPLICATION NO.3036 OF 2022
                               IN
               APPEAL FROM ORDER NO.187 OF 2021

Allen Gerald D’Silva                                 ...Applicant
      Vs
Grace A. Pinto & Ors.                                ...Respondents
                                …

Mr. Sanjeev Sawant i/by Mr. Prashant D. Jadhav for the
Applicant/Appellant.
Mr. Ashok M. Saraogi for Respondents.

                        CORAM : SANDEEP K. SHINDE J.
                        DATE : MAY 4, 2022.

P.C. :

              Heard Mr. Sawant, learned counsel for the applicant and

Mr. Saraogi, learned counsel for the respondents.




2             In Notice of Motion No.1200 of 2021 taken out by the

respondent/defendant no.1, in Short Cause Suit No.968 of 2021, the

learned trial Court vide order dated 30 th June, 2021, restrained the

appellant/plaintiff, temporarily from disturbing the possession of the

respondent no.1 in premises described in Clause 7 of the operative


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part of the order.




3           Feeling aggrieved by that order, Original Plaintiff has

preferred the Appeal From Order No.187 of 2021. Pending Appeal,

appellant has moved Interim Application No.3036 of 2022.




4           Mr. Sawant, learned counsel for the applicant/appellant,

on instructions, submits that the Notice of Motion No.1200 of 2021

moved by the defendants in the suit, was not supported by affidavit.

Submission is that the motion itself was not maintainable for want of

affidavit and thus could not have been entertained by the trial Court.

Mr. Sawant submitted that the Court was misdirected by the

defendants, by relying on unaffirmed statement in support of Notice

of Motion. On this count, he seeks, to ‘recall’ the order dated 30 th

January, 2021 passed in Notice of Motion No.1200 of 2021.




5           In consideration of the facts of the case and the

submissions advanced, leave granted to appellant-plaintiff, to move

appropriate application, seeking ‘recall’ of the order dated 30 th June,


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2021 passed in Notice of Motion No.1200 of 2021 on the grounds, as

permissible in law. If such an application is moved, trial Court shall

decide the same after hearing the parties and     shall dispose of the

same expeditiously.




6          That for the reasons stated above, Interim Application

does not survive and it is disposed of.




7          All contentions of the respective parties are expressly kept

open.




8          Reply filed by the respondents is taken on record.




                                          (SANDEEP K. SHINDE, J.)




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