Case Note & Summary
The petitioner, original defendant in a civil suit, raised a claim of mundkarial rights over the suit property. The Civil Judge framed issue no.7 regarding whether the defendant's late father was a mundkar. This issue was referred to the Mamlatdar on 20/1/2009. However, due to the petitioner's absence, the reference was dismissed in default on 6/8/2013. The petitioner filed an application for restoration before the Mamlatdar, which was dismissed on 29/6/2015 for want of jurisdiction. Meanwhile, the petitioner also applied to the Civil Court for re-referring the issue to the Mamlatdar, which was dismissed on 23/4/2015 on the ground that re-referring would amount to undue interference. The petitioner challenged both orders before the High Court. The High Court held that the Civil Court has the power to re-refer an issue to the Mamlatdar when the earlier reference was dismissed in default without adjudication on merits. The court relied on the decision in Bhaskar Pandurang Prabhu Dessai v. Shri Gajanan Arjun Salgaonkar, 1996 (2) Goa L.T. 229, which held that the Civil Court can re-refer the issue if the Mamlatdar fails to decide it. The High Court set aside the order of the Civil Judge and directed re-reference of issue no.7 to the Mamlatdar. The court also set aside the Mamlatdar's order and directed restoration of the reference. The petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Reference to Mamlatdar - Re-Reference - When an issue referred to Mamlatdar is dismissed in default without adjudication on merits, the Civil Court has the power to re-refer the same issue to the Mamlatdar for decision, as the earlier dismissal does not operate as a bar. (Paras 7-9) B) Goa Mundkar Act - Jurisdiction of Mamlatdar - Restoration - The Mamlatdar has jurisdiction to restore a reference dismissed in default, and the Civil Court can also re-refer the issue if the Mamlatdar fails to restore. (Paras 7-9) C) Civil Procedure - Reference to Mamlatdar - Dismissal in Default - The dismissal of a reference in default does not amount to a decision on merits, and therefore, the Civil Court is not precluded from making a fresh reference. (Paras 7-9)
Issue of Consideration
Whether the Civil Court can re-refer an issue to the Mamlatdar for a second time when the earlier reference was dismissed in default without adjudication on merits, and whether the Mamlatdar has jurisdiction to restore such reference.
Final Decision
The High Court allowed the writ petition, set aside the order dated 23/4/2015 passed by the Civil Judge Junior Division, Bicholim, and directed that issue no.7 be re-referred to the Mamlatdar for decision. The order dated 29/6/2015 passed by the Mamlatdar was also set aside, and the Mamlatdar was directed to restore the reference to file and decide it in accordance with law. No order as to costs.
Law Points
- Civil Court has power to re-refer an issue to Mamlatdar when earlier reference was dismissed in default without adjudication on merits
- Mamlatdar has jurisdiction to restore reference dismissed in default
