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2012 Supreme(Bom) 1268
In the High Court of Bombay at Goa
U.V. BAKRE
Shri Vishram Jaya Shetkar alias Manohar Jaya Shetkar & Others
Versus
Shri Nanu B. Shetkar
SECOND APPEAL NO. 76 OF 2003
Decided on : 13-07-2012
For the Appellants:D.J. Pangam, Advocate.
For the Respondent:Galileo Teles, Advocate.
Headnote:Civil Procedure Code, 1908 - Section 102 - Second Appeal -Held- Suit is not for recovery of money but is for damages - Section 102 not applicable - Section 102 of the CPC provides that no second appeal shall lie from any decree, when the subject-matter of the original suit is for recovery of money not exceeding Rs. 25,000/-. In the present case, the original suit is not for recovery of money but is for damages. Therefore, Section 102 of CPC is not applicable.
GOA, DAMAN & DIU MUNDKARS (PROTECTION FROM EVICTION) ACT, 1975 - Suit for damages. Held - Trial Court nowhere held that the defendant had filed false proceeding against the plaintiff - Basis for claiming damages was filing of proceeding before the Mamlatdar, which according to the plaintiff were false and use of physical and brutal force - Foundation of the claim for damages itself not proved, question of proving the quantum of damages did not arise - Appeal dismissed.
It is seen from the records that there is no dispute that the defendant is the mundkar having his mundkarial house in the same property, in which the plaintiffs wanted to undertake the construction. The defendant had filed the proceedings under Case No. JM/Mund/1/92 under Section 6(1) of the Goa, Daman and Diu Mundkar (Protection from Eviction) Act, 1975 alleging that the plaintiffs tried to dispossess him from enjoying his easementary right over the area behind his residential house. The defendant prayed to restrain the plaintiffs from constructing any structure in survey No. 19/17. The defendant had also prayed for an ex- parte order in terms of the above prayer. It is not the case of the plaintiffs that they filed reply to the above application alleging that these are malicious or vexatious proceedings. It is pertinent to note that no ex-parte order was passed by the Joint Mamlatdar in the said proceedings and, therefore, there was no restriction upon the plaintiffs to proceed with the construction. There was no legal requirement for the plaintiffs to maintain status quo only because some proceedings were filed by the defendant. What is pertinent to note is that on 6.10.1992, both the parties appeared before the Joint Mamlatdar along with their advocates and the advocate for the defendant made an endorsement on the application that he is withdrawing the same. The plaintiffs or their advocate did not object. The proceedings were closed. The trial Court has nowhere held that the defendant had filed false, vexatious or malicious proceedings against the plaintiffs. The Trial Court has not held that the defendant had used physical and brutal force thereby restraining the plaintiffs from doing the construction. The basis for claiming damages was the filing of proceedings before the Joint Mamlatdar, which according to the plaintiffs, were vexatious, malicious and false and use of physical and brutal force, thereby restraining the plaintiffs from doing the construction. Since the above foundation of the claim for damages, itself, was not proved, the question of proving the quantum of damages did not arise. On this ground alone, this second appeal is liable to be dismissed.
This Second Appeal is filed against the Judgment and Decree dated 30/4/2003 passed by the learned First Additional District Judge, South Goa, Margao (First Appellate Court, for short) in Regular Civil Appeal No. 98/1999.
2. The said Regular Civil Appeal was filed by the defendant of Regular Civil Suit No. 83/1992/B against the Judgment and Decree dated 31/8/1999 passed by the learned Civil Judge, Junior Division, Quepem (Trial Court, for short), in the said suit.
3. The parties shall be referred to in the manner as they appear in the cause title of the said Regular Civil Suit.
4. The plaintiffs had filed the said suit, against the defendant, for damages of Rs.18,800/-and they had also prayed for interest at the rate of 18% per annum on the said sum of Rs.18,800/-, calculated at quarterly rests as from 6/10/1992 till the actual payment.
5. Case of the plaintiffs was as follows:
They are co-owners in possession and enjoyment of a landed property, bearing survey no.19/17, situated at Amona of Quepem Taluka. The name of the plaintiffs or their late father has not been included in survey records, which is an error. In the beginning of February 1992, the plaintiffs brought about 200 laterite stones, 15 bags of cement, three truck loads of sand and other construction material and deposited the same in the said property, in order to construct a house therein. Thereafter, the plaintiffs started digging the foundation. The defendant is a mundkar, having his mundkarial house in the said property. The construction of the house undertaken by the plaintiffs was well outside the mundkarial rights of the defendant. However, the defendant filed a false, frivolous and vexatious proceedings bearing Case no. JM/Mund/1/92 before the Joint Mamlatdar of Quepem and also used physical and brutal force thereby restraining the plaintiffs from doing construction, due to which the plaintiffs could not go ahead with the construction. On 6/10/1992, after a period of nearly more than six months, the defendant having realized that the said proceedings filed by him before the Joint Mamlatdar of Quepem have no force and having further realized that the same may result in dismissal, the defendant withdrew the application for injunction filed by him. The plaintiffs had advanced a sum of Rs. 2500/-to the masons, which the plaintiffs lost. Three truck loads of sand brought by the plaintiffs got washed away in rains, thereby causing loss to the tune of Rs.1800/-. The cement bags were rendered useless having become hard, thereby causing loss to the tune of Rs.1500/-. Large number of laterite stones deposited at the site were robbed and taken away by the people and some of them, due to exposure to heat and sun, got damaged, due to which the plaintiffs suffered loss of Rs. 2,000/-. The plaintiffs have spent an amount of Rs.1000/-in defending the proceedings before the Joint Mamlatdar, which include advocate's fees, transport charges and miscellaneous expenses. In the course of attending the Court of Joint Mamlatdar, the plaintiffs had to forgo their routine work. The false and vexatious proceedings filed by the defendant caused mental tension, agony and hardship, on account of which, they have suffered loss to the tune of Rs.10,000/-. The plaintiffs, therefore, claimed the total sum of Rs.18,800/-along with interest.
6. By of Written Statement, the defendant stated as under:
The plaintiffs have no locus standi to file the suit since they have no right over the said
property bearing survey no. 19/17 of village Amona. The plaintiffs are permanent residents of Sanguem having their residential house and business at Sanguem. The defendant is residing as mundkar of Shri Ratnakar Shet who is the real owner of the said property. The defendant has been duly registered as mundkar before the Mamlatdar, Quepem in Case No. JM/Mund/X-A/203/81, in the year 1981. The plaintiffs tried to dispossess the defendant due to which defendant had to file the proceedings before the Jo
