2010 (2) TMI 1301 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the impugned judgment and decree dated 22.5.2009.
2. Competency of the Caveator to represent the Church.
3. Application of Section 90 r/w Order XXXVI of the Code of Civil Procedure, 1908.
4. Maintainability of the writ petition.
5. Contempt petition filed by the Caveator.

Summary:

1. Legality of the Impugned Judgment and Decree:
The petitioner, M/s. Balaji Property and Developers, challenged the judgment and decree dated 22.5.2009 passed in Civil Suit No. 48/2008 by the District Judge-III at Panaji. The petitioner argued that the impugned judgment was obtained by Basilio Castelino, posing as the attorney of the respondent No. 1 Church of Saint Matias, under Section 90 r/w Order XXXVI, Rule 1 of the Code of Civil Procedure, 1908. The petitioner contended that neither it nor its predecessor-in-title (respondent Nos. 5, 6, and 7) were made parties to the suit, violating the provisions of Order XXXVI of C.P.C. The Court found that the suit was not instituted in the manner required by Order XXXVI, Rule 3 of the Code, and the District Judge overstepped his jurisdiction by entertaining the suit against parties who were not part of the agreement in writing under Section 90 of the C.P.C.

2. Competency of the Caveator to Represent the Church:
The Caveator, Basilio Castelino, contested the petition, claiming to represent the Church of Saint Matias. The Court noted that the petitioner chose to proceed with the final hearing without questioning the competency of the Caveator to represent the Church. The Caveator's submissions were found to be emotive and lacking legal substance, while the petitioner's counsel provided a professional and legally sound argument.

3. Application of Section 90 r/w Order XXXVI of the Code of Civil Procedure, 1908:
The Court examined the application of Section 90 and Order XXXVI of the Code of Civil Procedure, 1908. It was found that the suit was not framed in accordance with the rules stipulated in Order XXXVI, Rule 3. The agreement in writing, necessary for initiating a 'Special Case,' was not properly executed, and not all parties to the agreement were joined in the suit. The District Judge failed to satisfy the requirements of Order XXXVI, Rule 5, which mandates the Court to ensure that the agreement was duly executed and that the parties have a bona fide interest in the questions stated therein.

4. Maintainability of the Writ Petition:
The Caveator questioned the maintainability of the writ petition, suggesting that the petitioner had other remedies, such as initiating contempt proceedings or taking steps under Section 34 of the Indian Trust Act. The Court, however, found that the petitioner was deliberately kept away from the suit, disabling it from challenging the suit before the Trial Court. The Court referred to the Apex Court judgment in Surya Dev Rai v. Ramchander Rai and Ors., which outlines the parameters for exercising writ jurisdiction under Articles 226 and 227 of the Constitution. The Court concluded that the District Judge acted in flagrant disregard of law and rules of procedure, warranting the exercise of writ jurisdiction.

5. Contempt Petition Filed by the Caveator:
The Caveator filed a contempt petition under Section 15(1) of the Contempt of Courts Act, 1971, alleging that the petitioner committed contempt by initiating and pursuing the writ petition. The Court dismissed the contempt petition for want of prosecution, stating that recourse to legal means in pursuit of justice cannot be considered criminal contempt.

Conclusion:
The Court declared that no finding, observation, or order passed in the impugned judgment and decree shall bind or affect anyone, including the petitioner, who was not a party to the agreement dated 26.3.2007. The revenue authorities were directed to take note of this declaration and deal with the Caveator's representation for mutation in accordance with law. The rule was made absolute with costs, and the contempt petition was dismissed for want of prosecution.