Case Note & Summary
The appellant (defendant in the trial court) challenged the judgment of the Additional District Judge, Mapusa, which partly allowed the appeal of the respondent (plaintiff) against the dismissal of his suit. The plaintiff had filed a suit for mandatory injunction, recovery of possession and mesne profits against the defendant, alleging that the defendant carried out extensive illegal constructions in the suit house without consent. The defendant was a tenant under a lease deed dated 15.7.1972, renewed on 1.5.1978. The plaintiff had also filed eviction proceedings before the Rent Controller under the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968. The trial court dismissed the suit, holding that the plaintiff failed to prove illegal construction and that the suit was not maintainable due to the pending eviction proceedings. The lower appellate court partly allowed the appeal, granting a decree for mandatory injunction to remove the alleged illegal construction and for mesne profits. In the second appeal, the High Court framed a substantial question of law regarding the maintainability of the suit. The High Court held that the civil suit was not barred by the pendency of eviction proceedings, as the causes of action were different. However, on merits, the High Court found that the plaintiff failed to prove the alleged illegal construction. The architect examined by the plaintiff did not prove his report, and the plaintiff's own evidence was insufficient. Therefore, the High Court allowed the appeal, set aside the judgment of the lower appellate court, and restored the trial court's decree dismissing the suit.
Headnote
A) Civil Procedure - Maintainability of Suit - Bar under Rent Control Act - The pendency of eviction proceedings before the Rent Controller does not bar a civil suit for mandatory injunction, recovery of possession and mesne profits based on alleged illegal construction, as the causes of action are distinct. (Paras 2-5) B) Evidence - Burden of Proof - Illegal Construction - The plaintiff failed to prove that the defendant carried out illegal construction of steps, verandah, concrete ramp and extension, as the architect's report was not proved and the plaintiff's evidence was insufficient. (Paras 6-10) C) Mesne Profits - Entitlement - The plaintiff is not entitled to mesne profits as the alleged illegal construction was not proved and the defendant was a lawful tenant. (Paras 11-12)
Issue of Consideration
Whether the civil suit for mandatory injunction, recovery of possession and mesne profits is maintainable when eviction proceedings are pending before the Rent Controller under the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, and whether the plaintiff proved illegal construction by the tenant.
Final Decision
The High Court allowed the second appeal, set aside the judgment and decree of the Additional District Judge, Mapusa, dated 9.5.2003, and restored the judgment and decree of the Civil Judge, Senior Division, Bicholim, dated 14.6.2000 dismissing the suit.
Law Points
- Maintainability of civil suit despite pending eviction proceedings
- burden of proof for illegal construction
- mesne profits for unauthorized occupation
