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2014 DIGILAW 211 (BOM)

Jose Fernandes v. Marcelina De Gama

2014-01-28

U.V.BAKRE

body2014
JUDGMENT Heard Mr. Menezes, learned Counsel appearing on behalf of the appellants and Mr. Diniz, learned Counsel appearing on behalf of the Respondents. 2. This Second Appeal is directed against the judgment and decree dated 28/01/2013 passed by the District Judge-I, FTC-I, South Goa at Margao (First Appellate Court) in Regular Civil Appeal No.193 of 2011, and the judgment and decree dated 15/10/2011, passed by the Additional Civil Judge-II Senior Division, Margao (trial Court), in Regular Civil Suit No. 320/2000/II(New) : Special Civil Suit No.113/1980(Old). 3. The appellants are the defendants and respondents are the plaintiffs in the said suit. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the said suit. 4. The plaintiffs had filed the said Suit for recovery of possession of the suit premises and of the land where the defendants have erected a cow shed and a hut, by removing the said structures; for permanent injunction to restrain them from interfering with any portion of the property; and for mesne profit assessed at Rs.100/- per month being the monthly rentable value of the suit premises and the portion of land, from the date of forcible occupation to the date of effective possession. 5. Case of the plaintiffs, in short, is as follows: They are the owners of the property known as “Dulape” or “5/24 of Dulape”, situated at Dulape, Verna which is the suit property bearing land registration no.22494 and survey no. 247/2, consisting of coconut trees, mango trees, jack fruit trees and other trees. Originally, there was a store room in the suit property for storage of coconuts and paddy. About 25 years back, the said room had been converted into a residential house with construction of a new room done by the family of the plaintiffs and since then the same was occupied by the plaintiffs and their sister Luciana and brother Hermegildo for residence and this is the suit house. The defendant no.1, when he was 8 years old, was brought from Canacona to Verna and was employed as shepherd in the house of the parents of the plaintiffs no.1 and 2 to look after the goats of the sister Luciana. The defendant no.1, when he was 8 years old, was brought from Canacona to Verna and was employed as shepherd in the house of the parents of the plaintiffs no.1 and 2 to look after the goats of the sister Luciana. The defendant no.1 did the said work for about seven years and left the house when he was about 19 years old and joined Portuguese army at Panaji and started residing at Panaji. After about five years of service in army the defendant no.1 was sent as a petrol, to the southern frontier of Goa at Polem. The defendant no.1 got married to the defendant no.2 on 28/10/1962 and stayed at Vasco-da-Gama and in 1973, the defendants along with the children suddenly came to Verna and forcibly started staying in the suit house with separate kitchen and at that time in the suit house were residing the plaintiff Marcelina and her sister Luciana and brother Hermegildo. The defendants noticing that the family of the plaintiff was physically unable to react against the forcible trespass and stay of the defendants in the suit house, on 12/04/1975, expelled the plaintiff no.1 and his brother from the suit house but since sister Luciana was physically paralyzed, she remained in the suit house as the defendants could not expel her. Thus, the defendants took the possession of the suit house against the wishes of the plaintiffs and subsequently on 01/04/1979 built a cow shed and a hut. The said sister of the plaintiffs no.1 and 2 expired in October, 1977 and her funeral took place in the suit house. The said Luciana had transferred her rights to the suit house and property in favour of Ana Felicidade Gama by sale deed dated 23/06/1954 and accordingly in the survey records of rights of the suit property, the house is shown as belonging 2/3rd to the plaintiff no.2 and 1/3rd to the plaintiff no.1. The plaintiff no. 2 is widow and plaintiffs no. 3 and 4 who are her children have inherited their rights from late father. The plaintiffs are having their movables in the suit house and the entire suit property is in their possession except the suit house, cow shed and the hut. The defendants are mere tress passers having no right to continue in occupation of the suit house. 6. 3 and 4 who are her children have inherited their rights from late father. The plaintiffs are having their movables in the suit house and the entire suit property is in their possession except the suit house, cow shed and the hut. The defendants are mere tress passers having no right to continue in occupation of the suit house. 6. By way of written statement, the defendants admitted that the plaintiffs are the owners of the suit property. The only defence taken by the defendants was that the suit house is a mundkarial house and was erected on behalf of the defendant no.1 for his permanent residence therein as a mundkar of the family of the plaintiffs. They stated that they are in possession and occupation of the suit premises for last over 30 years and it is they who had accommodated late Luciana for a short period before her death. According to them, the plaintiffs tried to forcibly evict the defendants from the suit premises and in that attempt even caused injuries to the defendant no.1. 7. Following issues were framed by the trail Court: 1. Whether the plaintiffs prove that the defendants in or about 12/4/1975 forcibly trespassed and stayed in the suit house? 2. Whether the plaintiffs prove that the defendants are trespassers and have no right of whatsoever to continue in occupation of the suit house? 3. Whether the plaintiffs are entitled for mesne profit at the rate of Rs.100/- from the defendants from date of their trespass? 4. Whether the defendants prove that the suit house is a mundkarial house and was erected for and on behalf of the defendant no.1 for his permanent residence as mundkar of the plaintiffs' property? 5. Whether the defendants prove that they are residing in the suit house on permanent basis as mundkars for the last over 30 years? 6. Whether the defendants prove that this Court has no Jurisdiction to entertain and try this suit? ADDITIONAL ISSUES 5-A. Whether the defendants prove that they have acquired a prescriptive title to the suit property, in the alternative? 5-B. Whether the defendants prove that the plaintiffs played fraud on the Mamlatdar and obtained a negative order on the claim of the defendants for Mundcarship? 8. On 07/10/2011, the plaintiffs had filed the affidavit-in-evidence of plaintiff no.1 (PW-1) and had produced the documents on record. 5-B. Whether the defendants prove that the plaintiffs played fraud on the Mamlatdar and obtained a negative order on the claim of the defendants for Mundcarship? 8. On 07/10/2011, the plaintiffs had filed the affidavit-in-evidence of plaintiff no.1 (PW-1) and had produced the documents on record. The cross-examination of the PW-1 was closed since the defendants as well their advocate was absent. The matter was posted for defence evidence and final arguments on 12/10/2011 but the defence evidence was closed on that day and final arguments were heard. 9. By Judgment and Order dated 15/10/2011, the trial Court held that in spite of having given opportunity to the defendants to lead evidence to show contrary to the case of the plaintiffs, the defendants did not produce any evidence inspite of knowing that the matter was fixed for the defence evidence. The trial court held that the claim of mundkarship of the defendants has been decided by the Competent Forum against the defendants and therefore affidavit as well as documentary evidence produced by the plaintiffs is sufficient and satisfactory to prove the issue nos.1, 2 and 3. The said issues were answered in the affirmative. Since the defendants did not produce any evidence on record to prove the issue nos. 4, 5, 6, 5A and 5B, they were answered in the negative. Consequently, the suit was decreed with costs. 10. Against the said Judgment, Order and Decree dated 15/10/2011, the defendants filed Regular Civil Appeal No. 193 of 2011. In the memo of appeal, before the First appellate Court, the defendants specifically alleged that impugned judgment was in total violation of the principles of natural justice in as much as the same was passed without giving opportunity to the defendants to put up their case. It was alleged that the trial Court displayed total lack of elementary knowledge of law whilst dismissing the application for setting aside ex-parte order and recalling PW-1 for cross-examination and the defendants were denied opportunity to lead their evidence. It was alleged that rejection of the application of the defendants caused serious miscarriage of justice as the defendants suffered the order unheard. 11. The learned First Appellate Court formulated only one point for determination as to whether the impugned Judgment suffers from illegality or impropriety. It was alleged that rejection of the application of the defendants caused serious miscarriage of justice as the defendants suffered the order unheard. 11. The learned First Appellate Court formulated only one point for determination as to whether the impugned Judgment suffers from illegality or impropriety. The First Appellate Court observed that the material details of mundkarship have not been stated in the written statement and that the plea of mundkarship was vague. It was further held that the said defence of mundkarship had lost its foundation since issue of mundkarship was decided by the competent authorities against the defendants. It has been held that the ownership of the plaintiffs over the suit property was admitted by the defendants and since it was never the claim of the defendants that the suit house was constructed by them and since the only defence taken by the defendants was that they are the mundkars of the suit house which defence has been negated by the Judgment and Order dated 13/04/1995 passed by the Additional Collector and the Judgment and Order dated 19/07/2010 passed by the Administrative Tribunal, the trial Court has rightly held that the defendants have no right or interest over the suit house and suit property. The contention of the defendants that the prayer of mesne profit has been granted to the plaintiffs though the plaintiffs did not lead any evidence to that effect, was held to be without any substance since there was no cross-examination of PW-1 by the learned advocate for the defendants. The learned First Appellate Court observed that various applications were moved by the learned advocate for the defendants and the orders passed thereon by the trial Court reveal that the proceedings were carried on without any illegality or irregularity and that there is nothing on record to show that the trial Court had not followed proper procedure in conducting the matter or had shown undue haste or that there was denial of justice to the defendants. The point for determination has been answered in the negative. Consequently, the appeal came to be dismissed. 12. The point for determination has been answered in the negative. Consequently, the appeal came to be dismissed. 12. After hearing the learned Counsel for both the parties, I find that the main and relevant substantial question of law which arises for determination is as follows : “Whether the trial Court acted in contravention of the provisions of Order IX Rule 7 of C.P.C. and the First Appellate Court in contravention of the provisions of Order 41 of C.P.C., thereby refusing to exercise powers vested in them to set aside the order dated 07/10/2010 closing the evidence of the plaintiffs; cross-examination of PW-1 and the Order dated 12/10/2011 closing defence evidence and ultimately causing gross injustice to the defendants/ appellants.” 13. It is seen from the Roznama of the Regular Civil Suit no. 320/2000/II that on 07/10/2011 the affidavit-in-evidence of PW-1 Sebastiao D'Gama was taken on record and his deposition in examination-in-chief was recorded by the trial Court and the documents produced by him were taken on record. The defendants and their advocate were absent on that day. Without giving an opportunity to the defendants or their Advocate to appear on the next date and cross-examine PW-1, and without stating any reason, the cross-examination of PW-1 was closed on 07/10/2011 itself. The roznama dated 07/10/2011 does not mention that the plaintiffs closed their case. But the matter was adjourned for defendants' evidence and final arguments on 12/10/2011 i.e. within four days. On 12/10/2011, the learned advocate for the defendants was present. It is stated in the roznama that Advocate S. Caeiro was present for first round and absent for second round. However, it is further stated in the Roznama dated 12/10/2011 that since the matter is old and a High Court direction matter and since the defendants failed to go ahead with the evidence, the defence evidence is closed. Immediately, thereafter, final arguments were heard on behalf of the plaintiffs and defendants were directed to file written arguments, if desired, before the next date of hearing. The matter was fixed for judgment immediately on 14/10/2011. After completion of the first roznama dated 12/10/2011, there is further Roznama dated 12/10/2011, wherein it is mentioned that after the next date was given, Advocate S. Caeiro for the defendants appeared and filed application for setting aside the order closing the cross and for recalling PW 1 for cross-examination. 14. The matter was fixed for judgment immediately on 14/10/2011. After completion of the first roznama dated 12/10/2011, there is further Roznama dated 12/10/2011, wherein it is mentioned that after the next date was given, Advocate S. Caeiro for the defendants appeared and filed application for setting aside the order closing the cross and for recalling PW 1 for cross-examination. 14. In the said application dated 12/10/2011 for setting aside the order closing the cross-examination and for recalling PW-1 for cross-examination, the defendants stated that their advocate was present in the Court but since he had some urgent matter in the District Court, he told the defendant no. 2 that he will soon come back. It is further stated that unfortunately since the son of the advocate for the defendants was not well he had to be taken to the doctor and as such the advocate for the defendants could attend the Court to cross-examine PW-1 and by the time he reached the Court, the defendant no.2 informed him that the matter was already taken up. In the said application, the defendants specifically stated that the absence of their advocate was caused solely due to the above circumstances and that the absence was not deliberate nor there was any negligence. It was further stated that grave and irreparable prejudice would be caused to the defendants if the order closing the cross is not set aside. 15. The learned advocate for the plaintiffs endorsed his say on the said application thereby resisting the same. It was alleged on behalf of the plaintiffs that no application was moved in between 07/10/2011 and 12/10/2011 and as no evidence was produced on behalf of the defendants, the Court was pleased to hear arguments and fix the date for judgment and decree taking into consideration that the same was direction matter. It was further stated in the say that the application for setting aside order of closing the evidence of the plaintiffs filed on 12/10/2011 was uncalled for as there was clearly an order for closing the evidence of defendants and final arguments were heard. Therefore the plaintiffs prayed that the application for setting aside the order dated 07/10/2011 be dismissed with costs. 16. By Order dated 15/10/2011, the learned trial Court dismissed the said application. Therefore the plaintiffs prayed that the application for setting aside the order dated 07/10/2011 be dismissed with costs. 16. By Order dated 15/10/2011, the learned trial Court dismissed the said application. In the said order the trial Court observed that after closing the cross-examination of PW-1 on account of absence of the defendants as well as their advocate, the matter was fixed for defendants evidence. It is further held that since the defendants have failed to cross-examine PW-1 in the High Court direction matter, the defence was also closed and after hearing final arguments the present matter was decided. The trial Court further held that the present application was filed by the defendants only to set aside the order closing the cross of PW-1 and for recalling him. It is further observed that if at all the defendants were aware about closing of the plaintiff's cross on 07/10/2011, it is not explained as to why the application was filed belatedly on 12/10/2011 when the advocate for defendants was well aware about the strict directions of the High Court for not delaying such old matter. The trial Court observed that the defendants are prolonging the matter though their claim of mundkarship has been already dismissed by the Mamlatdar. It was held that the application was not maintainable. 17. Order IX Rule 7 of C.P.C. provides as under: “7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non appearance.- Where the court has adjourned the hearing of the Suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.” 18. In the present case, ex-parte proceedings took place on 07/10/2011 and the deposition of PW-1 in examination-in-chief was recorded in the absence of the defendants and their Advocate and further ex-parte order of closing the cross-examination of PW-1 was also made on 07/10/2011. The next date was fixed on 12/10/2012. In terms of the said provision of order IX Rule-7, the defendants had to file the application for setting aside the ex-parte proceedings and ex-parte order on or before the next date of hearing. The next date was fixed on 12/10/2012. In terms of the said provision of order IX Rule-7, the defendants had to file the application for setting aside the ex-parte proceedings and ex-parte order on or before the next date of hearing. The defendants had filed the said application on the next date of hearing i.e. on 12/10/2011. Though the defendants, in their application stated that on 07/10/2012, the defendant no. 2 was present in the Court in person, however, the roznama dated 07/10/2012 is clear to show that neither the defendants no.1 and 2 nor their Advocate was present on 07/10/2012, which means that the proceedings which took place on that day and the order passed were ex-parte. A perusal of the order dated 15/10/2011 passed by the trial Court reveals that though the defendants had specifically stated as to why their advocate could not attend the Court, the trial Court did not at all consider the said ground. The trial Court has Not at all held that the reason assigned for previous absence was not believable or false. A perusal of the issues framed in the suit reveals that the onus of proving issues no.4,5,6,5-A and 5-B was on the defendants and the issue no.5-A was whether the defendants prove that they have acquired a prescriptive title to the suit property, in the alternative. 19. In Regular Civil Appeal No.193/2011, the defendants had specifically taken the ground regarding their application for setting aside the ex-parte order and for recalling PW-1 for cross-examination, in their memo of appeal. One of the grounds was that the impugned order was passed by the trial Court in total violation of principles of natural justice without giving opportunity to the defendants to put up their case. Another ground was taken to the effect that the trial Court displayed total lack of elementary knowledge of law while dismissing the application for setting aside the application and recalling PW-1 for cross-examination and was guided solely by consideration other than legal. Another ground that was taken was that the trail Court has denied an opportunity to the defendants to lead their evidence and, therefore, there was complete denial of fair justice to the defendants. It was alleged that the rejection of the application for setting aside the ex-parte order had caused serious miscarriage of justice since the defendants had suffered the order unheard. It was alleged that the rejection of the application for setting aside the ex-parte order had caused serious miscarriage of justice since the defendants had suffered the order unheard. In spite of all said and done as above, the learned First Appellate Court has not at all considered the said aspects regarding the violations of principles of natural justice. 20. I am of the view that the trial Court had acted in contravention of the provisions of Order IX Rule 7 of C.P.C. without at all going into the reasons stated for non-appearance of the advocate on 07/10/2011. I am also of the view that the learned First Appellate Court also acted in contravention in provisions of order 41 of C.P.C. by not considering the said aspects at all. The Courts below have not at all considered the facts of awarding costs in favour of the plaintiffs, if any inconvenience was caused to them on account of the acts of the defendants. In my considered opinion, the judgments and decrees of both the Courts below are unsustainable on account of violation of principles of natural justice. The substantial question as framed above is therefore answered in the affirmative. 21. Without going into the merits of the matter, I am of the view that the impugned Judgments and Orders of both the Courts below are liable to be quashed and set aside and the matter remanded to the trial Court with appropriate directions. 22. In the result, the appeal is partly allowed. (i) The judgment and decree dated 28/01/2013 passed by the First Appellate Court in Regular Civil Appeal No. 193 of 2011, and the judgment and decree dated 15/10/2011 passed by the trial Court in Regular Civil Suit No. 320/2000/II(New) : Special Civil Suit No.113/1980(Old) and quashed and set aside. (ii) The Order dated 15/10/2011 passed by the trial Court dismissing the application dated 12/10/2011 of the defendants is also quashed and set aside. (iii) The application for setting aside the Order closing the cross-examination of PW-1 and for re-calling PW-1 for cross-examination by the defendants and for opening the evidence of the plaintiffs is allowed. (iv) The defendants shall be given opportunity to cross-examine PW-1. The plaintiff shall be given liberty to examine further witnesses, if any. (iii) The application for setting aside the Order closing the cross-examination of PW-1 and for re-calling PW-1 for cross-examination by the defendants and for opening the evidence of the plaintiffs is allowed. (iv) The defendants shall be given opportunity to cross-examine PW-1. The plaintiff shall be given liberty to examine further witnesses, if any. Thereafter, the defendants shall be given opportunity to lead defence evidence, if any, and thereafter the matter shall be disposed of in accordance with law after hearing both the parties. (v) Since, the matter is quite old the learned trial Court shall dispose of the said suit as expeditiously as possible and in any case within a period of six months from the date of appearance of the parties before it. (vi) Parties to appear before the trial Court on 12/02/2014 at 10.00 a.m.