Case Note & Summary
The petitioners, legal heirs of the original defendant Anand Visvambora Bandodkar, challenged the order of the First Appellate Authority dated 31.3.2022 which allowed the respondents' appeals, condoned the delay, set aside the abatement, and brought the legal heirs of the parties on record in Regular Civil Suit Nos. 317/2000/III(new) and 318/2000/III(new). The original plaintiff Fr. Antonio Barbosa died on 23.8.1995, and the original defendant died on 15.5.2005. The civil suit had been kept sine die after framing a tenancy issue and referring it to the Mamlatdar under Section 58(2) of the Goa Tenancy Act, 1964. Legal heirs of both parties were brought on record in the tenancy proceedings before the Mamlatdar, but no application was filed in the civil suit until October 2016. The Trial Court dismissed the applications for condonation of delay and setting aside abatement, but the First Appellate Court reversed that decision. The High Court upheld the First Appellate Court's order, holding that the tenancy proceedings are connected to the suit, and bringing legal heirs on record in those proceedings is sufficient to keep the suit alive. The delay was condonable as the suit was sine die and parties were not required to appear. The writ petitions were dismissed.
Headnote
A) Civil Procedure - Condonation of Delay - Setting Aside Abatement - Suit kept sine die - Legal heirs brought on record in connected tenancy proceedings - Held that when a civil suit is kept sine die pending decision of tenancy issue by Mamlatdar under Section 58(2) of the Goa Tenancy Act, 1964, the tenancy proceedings are not independent but connected to the suit. Bringing legal heirs on record in the tenancy proceedings is sufficient to keep the suit alive, and delay in filing application in the suit is condonable as parties were not required to appear in the suit. (Paras 20-30)
B) Tenancy Law - Reference to Mamlatdar - Section 58(2) Goa Tenancy Act, 1964 - Jurisdiction - Held that the issue of tenancy is a jurisdictional issue; the Civil Court must refer it to the Mamlatdar and keep the suit sine die. The decision of the Mamlatdar is a factor to be considered in the suit, showing the connected nature of proceedings. (Paras 21-22)
C) Civil Procedure - Order 22 Rule 10-A CPC - Intimation of death - Suit sine die - Held that when a suit is kept sine die, parties and advocates are not required to attend, and no notice of intimation of death under Order 22 Rule 10-A is required to be issued. (Paras 27-28)
Issue of Consideration
Whether the First Appellate Court was justified in condoning the delay and setting aside the abatement of the suit to bring legal heirs on record when the suit was kept sine die pending reference of tenancy issue to the Mamlatdar and legal heirs were already brought on record in the tenancy proceedings.
Final Decision
Both writ petitions are dismissed. The order of the First Appellate Authority dated 31.3.2022 is upheld. Rule is discharged with no order as to costs.
Law Points
- Condonation of delay
- Setting aside abatement
- Order 22 Rule 10-A CPC
- Section 58(2) of the Goa Tenancy Act
- 1964
- Suit kept sine die
- Connected proceedings
- Sufficient cause
Case Details
2024 LawText (BOM) (9) 103
Writ Petition No. 45 of 2023 and Writ Petition No. 56 of 2023
Mr S. D. Lotlikar, Senior Advocate with Ms Sayli Kenny, Advocate for the petitioner; Mr S. G. Desai, Senior Advocate along with Mr Tejas Rane and Ms Shalka Shelke, Advocates for the respondent
Mr. Anand Visvambora Bandodkar (deceased) through his legal heirs: Mrs. Sunita Bandodkar, Damodar Anand Bandodkar, Dipiya Damodar Bandodkar, Mr. Prashant Anand Bandodkar, Vidyha Prashant Bandodkar
Fr. Antonio Ornelas Piedade Barbosa (deceased) through his sole testamentary heiress Mrs. Tereza Paula Barbosa represented by her constituted attorney Mrs. Leopoldina Maria Piedade Dias e Barbosa
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Nature of Litigation
Writ petitions challenging the order of the First Appellate Authority condoning delay and setting aside abatement to bring legal heirs on record in a civil suit kept sine die pending tenancy issue.
Remedy Sought
Petitioners sought to quash the order of the First Appellate Authority dated 31.3.2022 which allowed the respondents' appeals, condoned the delay, set aside abatement, and brought legal heirs on record.
Filing Reason
Petitioners contended that the suit abated due to failure to bring legal heirs within time, and the reference to Mamlatdar was without jurisdiction as the suit had abated.
Previous Decisions
The Trial Court dismissed applications for bringing legal heirs (Exhs. 22 and 27) on 26.8.2016. The First Appellate Authority allowed appeals (Misc. Civil Appeal No.91 of 2016 and 36 of 2019) on 31.3.2022, condoning delay and setting aside abatement.
Issues
Whether the First Appellate Court erred in condoning the delay and setting aside the abatement when the suit was kept sine die and legal heirs were already brought on record in the connected tenancy proceedings.
Whether the reference of tenancy issue to the Mamlatdar after the death of the plaintiff was null and void due to abatement of the suit.
Submissions/Arguments
Petitioners argued that the suit abated automatically on death of plaintiff in 1995 as no application for bringing legal heirs was filed within time; reference to Mamlatdar in 1997 was without jurisdiction; delay of 20 years cannot be condoned; respondents cannot approbate and reprobate as they opposed bringing heirs before Mamlatdar.
Respondents argued that the suit was kept sine die; tenancy proceedings are connected; legal heirs were brought on record in tenancy proceedings; sufficient cause for delay was shown; First Appellate Court's order was justified and needs no interference.
Ratio Decidendi
When a civil suit is kept sine die pending decision of a tenancy issue referred to the Mamlatdar under Section 58(2) of the Goa Tenancy Act, 1964, the tenancy proceedings are not independent but connected to the suit. Bringing legal heirs on record in the tenancy proceedings is sufficient to keep the suit alive. The delay in filing an application for bringing legal heirs in the suit is condonable as parties were not required to appear in the suit while it was sine die.
Judgment Excerpts
Purpose of Section 58(2) of the Tenancy Act clearly revealed that when an issue is raised regarding claim of tenancy in any civil proceedings, the same is required to be referred to the competent authority i.e Mamlatdar to decide as to whether party claiming is a tenant of the suit proceedings.
Even if such an issue is referred to the Mamlatdar and registered as a separate case between the so called tenant and the landlord, it cannot be considered as a separate proceedings and independent to the civil suit.
Thus, when the suit itself was kept sine die, parties and their advocate were not supposed to attend the proceedings and thus there was no opportunity for them to find out whether the suit is abated or not.
Procedural History
Original plaintiff Fr. Antonio Barbosa filed Regular Civil Suit Nos. 317/2000/III(new) and 318/2000/III(new). Tenancy issue was framed and suit kept sine die. Plaintiff died on 23.8.1995. Reference to Mamlatdar made in 1997. Defendant died on 15.5.2005. Legal heirs brought on record in tenancy proceedings. Application under Order 22 Rule 10-A filed in suit on 31.1.2009. Applications for bringing legal heirs filed in suit in October 2016 (Exhs. 22 and 27). Trial Court dismissed applications on 26.8.2016. Appeals filed (Misc. Civil Appeal No.91 of 2016 and 36 of 2019). First Appellate Authority allowed appeals on 31.3.2022. Present writ petitions filed challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 22 Rule 10-A
- Goa Tenancy Act, 1964: Section 58(2)
