Case Note & Summary
The dispute arose from a registered sale deed dated 10.07.2007, by which the petitioner, M/s. Balaji Property and Developers, purchased property bearing Survey Nos. 224/1, 224/2 and 224/3 at village Jua, Goa, from respondent Nos. 5, 6 and 7 (members of the Fonseca family). The property had been subject of Inventory Proceedings No. 42/73/B. One Basilio Santana Castelino, claiming to represent respondent No.1 Church of St. Matias, addressed a notice dated 12.12.2007 threatening to set aside the sale deed. Thereafter, the Church, through Castelino, filed a writ petition (W.P. No.131/2008) and later instituted Civil Suit No.48/2008 before the District Judge-III, Panaji, under Section 90 read with Order XXXVI of the Code of Civil Procedure, 1908, seeking appointment of a receiver for mutation of revenue records. The suit was styled as a ‘special case’ but was filed without an agreement in writing among all persons interested. The defendants included the State, its officials, the Fonsecas, Catherina Crasto, and the Archbishop of Goa. The petitioner was not made a party. Notices to the Fonsecas were returned unserved, and their names were deleted; the other defendants were served and proceeded ex-parte. On 22.05.2009, the District Judge passed a decree without hearing the petitioner or its predecessors. The petitioner challenged this decree before the Bombay High Court under Articles 226 and 227 of the Constitution, contending that the suit was not maintainable as no written agreement existed, necessary parties were not joined, and the decree violated natural justice. The caveator, Castelino, defended the decree, asserting he was the true representative of the Church and was protecting church properties from fraudulent usurpers. The High Court examined the provisions of Section 90 and Order XXXVI CPC, observing that a ‘special case’ can only be stated by parties interested in a question of fact or law upon a written agreement. The suit lacked such agreement, and persons vitally interested—including the petitioner and its predecessors—were not parties to the agreement or the suit. The decree was passed without notice to them, in flagrant violation of natural justice. Relying on Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675, the Court held that even if an appeal lay, the High Court could exercise its supervisory jurisdiction to set aside a decree obtained in clear breach of law and procedure. Consequently, the writ petition was allowed; the impugned judgment and decree dated 22.05.2009 in Civil Suit No.48/2008 were set aside, and rule was made absolute in terms of prayer clauses (a) and (b) with no order as to costs.
Headnote
A) Civil Procedure - Special Case - Section 90, Order XXXVI Rule 1 Code of Civil Procedure, 1908 - Requirement of written agreement - A suit under Section 90 CPC requires an agreement in writing between all persons interested in the decision of the question of fact or law. Without such agreement, the suit is not maintainable and any decree passed is without jurisdiction. Held that the suit as framed lacked the written agreement of all interested parties and thus the decree was vitiated. (Paras 7-10) B) Civil Procedure - Necessary Parties - Non-joinder - Violation of natural justice - Order XXXVI Rule 1 Code of Civil Procedure, 1908 - In a suit under Section 90 CPC, all parties claiming to be interested must be joined. Failure to serve notice on the petitioner and its predecessors-in-title, who were directly affected, violated principles of natural justice. Held that the decree was passed without hearing necessary parties and is thus a nullity. (Paras 10-13) C) Constitutional Law - Writ Jurisdiction - Supervisory jurisdiction under Articles 226, 227 Constitution of India, 1950 - High Court can set aside decree passed in violation of natural justice - Even if an appeal lies, the High Court can interfere under Articles 226 and 227 when the decree is passed in flagrant disregard of law and procedure, causing grave injustice. Held that the impugned decree obtained without notice and in violation of natural justice warranted interference. (Paras 5, 14)
Issue of Consideration
Whether the impugned judgment and decree passed in a suit under Section 90 read with Order XXXVI of the Code of Civil Procedure, 1908, without an agreement in writing between the parties and without impleading the petitioner and other necessary parties, is valid and whether the High Court can interfere under Articles 226 and 227 of the Constitution.
Final Decision
The writ petition was allowed. The impugned judgment and decree dated 22.05.2009 passed in Civil Suit No.48/2008 by the District Judge-III, Panaji, was set aside. Rule was made absolute in terms of prayer clauses (a) and (b) of the petition. No order as to costs.
Law Points
- Section 90 CPC requires written agreement of all persons interested in the question of fact or law
- a suit under Section 90 CPC cannot be maintained without such agreement
- non-joinder of necessary parties and lack of notice to affected parties vitiates the decree
- an order passed in violation of natural justice is a nullity
- High Court can exercise powers under Articles 226 and 227 to set aside such decree
