9911796707
TMI Blog2010 (2) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Court of District Judge- III at Panaji. According to the petitioner, the said property was duly purchased by it from the respondent Nos. 5- Jose Fonseca, 6- Araci Fonseca, 7- Edgar Fonseca. The said property, the petitioner further reveals, was the subject matter of Inventory Proceedings bearing No. 42/73/B filed in the Court of CJSD, Panaji by one Luis Bonaparte Fonseca - father of the respondent No. 5 Jose and 7 Edgar and father-in-law of respondent No. 6 Araci w/o Jose in relation to the assets of his deceased wife Odela Da Fonseca; and the said property was allotted to the respondent No. 5; Jose and the said Luis had by a registered will bequeathed all his assets in favour of his son respondent No. 7 Edgar. The petitioner further reveals that one Basilio Castelino posing as the trustee on behalf of the respondent No. 1 Church of Saint Matias addressed a notice dated 12.12.2007 threatening it with legal action to set aside the sale deed and making some false allegations; and without initiating any proceedings in respect of the said sale deed, the said Basilio - Caveator herein filed an application for mutation in revenue records based on the impugned judgment dated 22.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the caveator in person. In contrast with the submissions made on behalf of the caveator in person the learned Senior Advocate Nitin Thakkar with professional cool in his submissions took this Court through the provisions of law governing a 'special case' and pointed out therefrom how the learned District Judge overstepped its jurisdiction while acting in flagrant disregard of law or the rules of procedure and proceeded to pass the impugned judgment and decree making inroads into the rights of the petitioner without being heard and thereby occasioning grave injustice to the petitioner. Relying on the judgment reported in 2003 (6) SCC 675 Surya Dev Rai v. Ramchander Rai and Ors., learned Advocate Thakkar submitted that the facts and circumstances in the present case warranted exercise of the jurisdiction of this Court both under Articles 226 and 227 for doing away with such grave injustice caused to the petitioner. 6. Submissions made on behalf of and by the rival parties call for critical examination of the impugned judgment and decree as well as application or the plaint with which the said suit was instituted in light of the relevant provisions of law. Admittedly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; , resorting to which the Court has to try and determine such 'Special Case' is found expressed in Order XXXVI of the Code. 9. Who could be parties to such 'Special Case' is the question which is answered in Order XXXVI of the Code. Order XXXVI Rule 1 of the Code requires the parties claiming to be interested in the decision of any question of fact or law have to first enter into an agreement in writing stating such question in form of a case for the opinion of the Court and every such case should be a concise statement of such facts with reference to specific documents as may be necessary to enable the Court to decide the question raised thereby. It also delineates the scope of the questions which the Court is obliged to answer in respect of such 'Special Case' in the following terms: Order XXXVI, Rule 1 - Power to state case for Court's opinion - (1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court, and providing that, upon the finding of the Court with respect to such question, - (a) a sum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for getting answer to their questions or problem, and only then they are expected to remain bound by their statements contained in such agreement. From this, it is not difficult to gather that the parties to such suit must be parties to the agreement necessary for initiating a 'Special Case' . 12. If one compares relevant agreement in writing with the application/ plaint, one can easily discover that one Roque Puligere Crasto referred to as the tenant in the said agreement was not joined as party to the said application/ suit and the parties (i) State of Goa (ii) North Goa District Collector (iii) Mamlatdar of Tiswadi Taluka (iv) Jose Rajendra Derek Da Fonseca (v) Smt. Araci De Fonseca (vi) Edgar Bonaparte Fonseca (vii) Catherina Crasto (viii) The Archbishop of Goa, Daman, who were not parties to the said agreement were shown as party defendants in the said application/ suit. It can also be seen that one Fr. Martinho Filipe Antonio Dourado - a Parish Priest shown to be the representative of the Church of Saint Matias in the said agreement was also not impleaded to the said application or suit in any manner whatsoever. Consequently, it can be seen that no notice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eca family in the said property (xiii) Acquisition of questionable title to the said property by Inventorist Jose Rajendra Derek Fonseca, his wife Smt. Araci and Shri Edgar Fonseca and his wife(xiv) Invalidity of the said Inventory proceedings, (xv) Lawful surrender of the tenancy by Roque Puligere Crasto and the tenant in favour of the Church for a compensation valued in divine principle of his faith and belief (xvi) Legal right of the Church to initiate criminal proceedings for recovery of damages and compensation payable to the tenant and lastly (xvii) Valuation of the said case at ₹ 1 Crore 18 Lacs. Significantly, a vast canvass of facts and legal issues involving the parties other than those to the said agreement as well as legal forums other than civil court was unfolded through the recitals of the said agreement. 14. The agreement further reveals that the Church of Saint Matias acting through its Parish Priest, father Martinho Filipe Antonio Dourado and the tenant - Roque Puligere Crasto have admitted whatever the receiver the Caveator herein expressed in the forgoing recitals and further joined the receiver 'to state a case for the said opinion' and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submitted that only the parties against whom the decree has been passed could have challenged the impugned judgment and decree and none else. Countering these submissions, learned Advocate Nitin Thakkar for the petitioner pointed out from the finding of the District Judge on issue No. 3 in the said suit how dangerous it is if used by the Caveator Basilio Castelino before the Revenue Authorities in the proceedings for carrying out mutation. He further submitted, that left with no remedy in the civil law against the dangerous findings of the District Judge given behind their back in the said suit, the petitioner had to knock the doors of this Court. 17. It is correct that the petitioner or its predecessor? in-title were deliberately kept away from the said suit by the Caveator and this disabled the petitioner or its predecessorin-title from throwing challenge to the said suit before the Trial Court. Even if the petitioner or its predecessor-in-title would have met this fate after being made party to the said suit, the law - Order XXXVI, Rule 6 of the Code - would not have permitted them to prefer an appeal from the decree passed under Rule 5, Order XXXVI. 18. Reading o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as all the parties to the agreement in writing envisaged under Section 90 of the C.P.C. were not joined to the said suit nor was the notice of the said suit given to all the parties to the agreement as required under Rule 3 of Order XXXVI of the Code. Secondly, the learned District Judge completely overlooked a fact that it was a 'Special Case' between the parties to the said agreement in writing under Section 90 of the Code and not a regular adversarial type of civil suit. This can be seen from the fact that he could entertain the said suit against the parties, who were not parties to the agreement in writing under Section 90 of the C.P.C. and ventured to give findings only for the reason of lack of resistance from such parties to the said suit. His faulty approach in deciding the issues can be seen from his own words in the impugned judgment, which are reproduced herein below for the purposes of reference: 10. Issue No. 3, : At exhibit 65 is form No. I and XIV wherein the names of Defendant No. 4 Derek de Fonseca, Defendant No. 5 Catherina Crasto and Defendant No. 7 Catherina Crasto is found recorded. Though the Defendants No. 4 and 5 are not served, but defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as aforesaid and, therefore, warrants adequate intervention of this Court. A declaration, that no finding, observation or order passed in the impugned judgment and decree shall bind or affect anyone, much less the petitioner, who is not party to the agreement dated 26.3.2007 Exh.5 in Civil Suit No. 48/2008 decreed by the District Judge-III, Panaji on 22.5.2009, will serve the ends of justice. Accordingly, it is so declared and the revenue authorities shall take note of this declaration and shall deal with representation of the Caveator Basilio Castelino in the matter of carrying out mutation in respect of the properties referred to in the said suit in accordance with law. Anyone feeling threatened regarding the title to the said property may resort to appropriate legal remedy. 23. Rule is made absolute in terms of the aforesaid directions with costs. 24. The caveator Basilio Santana Castelino moved an application for contempt under Section 15(1) of Contempt of Courts Act, 1971 to catch the attention of this Court for suo motu action of contempt against the petitioners for having initiated this writ petition and pursuing it with the affidavitin-rejoinder. The Caveator als ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
