Case Note & Summary
The petitioners, original plaintiffs, filed a Regular Civil Suit No.67/2003/A before the Civil Judge, Senior Division, Quepem, seeking relief in respect of a suit house. During the proceedings, the trial court passed an order dated 19th September 2004 impleading respondent No.3, Natalina Fernandes, as a party defendant. The petitioners challenged this order by way of a writ petition before the Bombay High Court at Goa. The petitioners contended that the trial court exceeded its jurisdiction by ordering impleadment without ascertaining whether respondent No.3 had a mundkarial right declared by the competent authority under the Goa Mundkars (Protection from Eviction) Act, 1975. They argued that the court wrongly assumed that she had a mundkarial right without any finding as to the absolute necessity of her presence for the effective adjudication of the suit. The respondents did not appear despite service. The High Court, after hearing the petitioners' counsel and perusing the records, held that the trial court's order was unsustainable. The court observed that the trial court had not determined whether respondent No.3 was a necessary or proper party to the suit. The court noted that the trial court had proceeded on the assumption that respondent No.3 had a mundkarial right, but there was no declaration from the competent authority in her favour. The High Court set aside the impugned order and remanded the matter to the trial court for fresh consideration in accordance with law, directing the trial court to decide the impleadment application afresh after hearing all parties.
Headnote
A) Civil Procedure Code, 1908 - Order 1 Rule 10 - Impleadment - Necessary Party - The trial court cannot implead a person as a party defendant without determining whether such person is a necessary or proper party to the suit. The court must ascertain the existence of a legal right before ordering impleadment. (Paras 3-5)
B) Goa Mundkars (Protection from Eviction) Act, 1975 - Mundkarial Right - Declaration - A person claiming mundkarial right must have a declaration from the competent authority under the Act. Without such declaration, the court cannot assume the existence of a mundkarial right for the purpose of impleadment. (Paras 3-5)
C) Civil Procedure Code, 1908 - Order 1 Rule 10 - Jurisdiction - The trial court exceeded its jurisdiction by ordering impleadment of respondent No.3 based on a wrong assumption that she had a mundkarial right, without any finding as to the absolute necessity of her presence for the effective adjudication of the suit. (Paras 3-5)
Issue of Consideration
Whether the trial court exceeded its jurisdiction in ordering impleadment of respondent No.3 as a party defendant without ascertaining whether she had a mundkarial right declared by the competent authority under the Goa Mundkars (Protection from Eviction) Act, 1975.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 19th September 2004, and remanded the matter to the trial court for fresh consideration of the impleadment application in accordance with law, after hearing all parties.
Law Points
- Order 1 Rule 10 CPC
- impleadment
- necessary party
- proper party
- mundkarial right
- Goa Mundkars (Protection from Eviction) Act 1975
Case Details
2006 LawText (BOM) (01) 36
Writ Petition No.567 of 2004
Shri M.S. Usgaonkar, Senior Advocate with Shri Iftekar Agha, Advocate for the petitioners
Smt. Maria Emilia Barreto Mascarenhas, Shri Bernardo Jose Mascarenhas, Smt. Frieda Mascarenhas, Smt. Ascilia Mascarenhas Barreto, Shri Carmo Cruz Barreto
Smt. Sushma Ruzar Fernandes, Shri Ruzar Fernandes, Mrs. Natalina Fernandes
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Nature of Litigation
Civil writ petition challenging an order of impleadment passed by the trial court in a regular civil suit.
Remedy Sought
The petitioners sought to quash the order dated 19th September 2004 passed by the Civil Judge, Senior Division, Quepem, impleading respondent No.3 as a party defendant in Regular Civil Suit No.67/2003/A.
Filing Reason
The petitioners contended that the trial court exceeded its jurisdiction by ordering impleadment without ascertaining whether respondent No.3 had a mundkarial right declared by the competent authority under the Goa Mundkars (Protection from Eviction) Act, 1975, and without any finding as to the absolute necessity of her presence.
Previous Decisions
The trial court passed the impugned order on 19th September 2004 impleading respondent No.3 as a party defendant.
Issues
Whether the trial court exceeded its jurisdiction in ordering impleadment of respondent No.3 without ascertaining her mundkarial right?
Whether the trial court erred in assuming the existence of a mundkarial right without a declaration from the competent authority?
Submissions/Arguments
The petitioners argued that the trial court wrongly assumed that respondent No.3 had a mundkarial right without any declaration from the competent authority under the Goa Mundkars (Protection from Eviction) Act, 1975.
The petitioners argued that the trial court did not arrive at any finding as to the absolute necessity of the presence of respondent No.3 for the effective adjudication of the suit.
Ratio Decidendi
The trial court cannot order impleadment of a person as a party defendant without first determining whether such person is a necessary or proper party to the suit. A claim of mundkarial right must be supported by a declaration from the competent authority under the Goa Mundkars (Protection from Eviction) Act, 1975; the court cannot assume such a right without evidence.
Judgment Excerpts
The grievance of the petitioners is against the order dated 19th September, 2004 passed by the learned Civil Judge, Senior Division, Quepem, in Regular Civil Suit No.67/2003/A.
It is the contention of the petitioners that the trial court not only exceeded its jurisdiction while ordering impleadment of the respondent No.3 as party defendant to the suit but allowed the impleadment on wrong assumption that she had a mundkarial right to the suit house without ascertaining whether she has any declaration in her favour in that regard from the competent authority under the Goa Mundkars (Protection from Eviction) Act, 1975 and without arriving at any finding as regards the absolute necessity of presence of the said respondent.
Procedural History
The petitioners filed Regular Civil Suit No.67/2003/A before the Civil Judge, Senior Division, Quepem. On 19th September 2004, the trial court passed an order impleading respondent No.3 as a party defendant. The petitioners challenged this order by filing Writ Petition No.567 of 2004 before the High Court of Bombay at Goa. The High Court heard the matter on 13th January 2006 and allowed the petition, setting aside the impugned order and remanding the matter for fresh consideration.
Acts & Sections
- Code of Civil Procedure, 1908: Order 1 Rule 10
- Goa Mundkars (Protection from Eviction) Act, 1975:
