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Goa High Court
TITO MENEZES
Jairam Ramchandra Sirsat - Appellant
Versus
Baburao Manguesh Karekar - Respondent
Decided On : 10/10/1972
CIVIL PROCEDURE CODE - Order 39, Rule 2 (1) - Section 151 - Injunction - Grant of - Conditions - Suit for declaration - Maintainability - Notice under Section 80, Civil P.C. - Necessity - Goa, Daman and Diu Municipalities Act, 1968 (Goa Act 9 of 1968), Sec. 83 (3).
Fact of the Case:
The respondent, President of the Mapuca Municipal Council, filed a suit for a declaration that a meeting of the Council held on 15-09-1972 and the resolution passed thereat were null and void and that he continued to be the President of the Council. He also filed an application for an injunction restraining the appellants from doing any act in furtherance of the resolution. The appellants contended that the suit was bad for want of notice under Section 80, Civil P.C., that the resolution was passed by the Municipal Council and not by some members of the Council, and that the respondent could have raised the point of improper service by way of a point of order under Section 78 (7) of the Goa, Daman and Diu Municipalities Act, 1968.
Finding of the Court:
The court held that the suit was not bad for want of notice under Section 80, Civil P.C., as the appellants had not waived the notice and the respondent had made out a prima facie case. The court also held that the resolution was not passed by the Municipal Council but by some members of the Council, and that the respondent was not required to file a suit against the Council. The court further held that the respondent could not have raised the point of improper service by way of a point of order under Section 78 (7) of the Goa, Daman and Diu Municipalities Act, 1968, as that would not bar his right to approach a Civil Court for a declaration.
Issues: 1. Whether the suit was bad for want of notice under Section 80, Civil P.C.? 2. Whether the resolution was passed by the Municipal Council or by some members of the Council? 3. Whether the respondent could have raised the point of improper service by way of a point of order under Section 78 (7) of the Goa, Daman and Diu Municipalities Act, 1968?
Ratio Decidendi: 1. The court held that the suit was not bad for want of notice under Section 80, Civil P.C., as the appellants had not waived the notice and the respondent had made out a prima facie case. 2. The court held that the resolution was not passed by the Municipal Council but by some members of the Council, and that the respondent was not required to file a suit against the Council. 3. The court held that the respondent could not have raised the point of improper service by way of a point of order under Section 78 (7) of the Goa, Daman and Diu Municipalities Act, 1968, as that would not bar his right to approach a Civil Court for a declaration.
Final Decision: The court allowed the appeal and set aside the order of the District and Sessions Judge dated 26-09-1972. The Government and its Officers concerned with Municipal Administration were directed to implement the resolution passed by the Municipal Council on 15-09-1972 removing the respondent from the Presidentship of the Mapuca Municipal Council, forthwith.
2. The respondent was the President of the Mapuca Municipal Council. The Director of the Municipal Administration (respondent No. 2) called a meeting of the Council to consider a motion of no-confidence against the respondent No. 1. The respondent No. 1 filed a Writ Petition before this Court. The petition was filed about 12.30 p. m. on 05-09-1972 and it was prayed therein that a writ of mandamus be issued prohibiting the Director of Municipal Administration, the Deputy Collector and the Union of India (the respondents Nos. 2, 3 and 5) from holding the meeting. An application for interim injunction in terms of the said prayer was also made. The petition was registered almost simultaneously with its filing. Notice of the hearing of admission of the petition as well as of the application for interim injunction was, according to Shri Rao, learned advocate for respondent No. 1, given to the Government Pleader. It is not known whether the notice was given before the registration of the petition or thereafter. Shri Joaquim Dias learned Government Pleader appeared in the Court as Shri Rao was arguing the admissibility of the petition. After the arguments by Shri Rao regarding the admission got over, no reply was made by Shri Dias. It appears that Shri Dias did not answer the arguments of Shri Rao regarding the admissibility of the petition, on the assumption that as the notice that the petition was going to be filed was not given to him by this Court but by the respondent No. 1. he was not at all concerned with the admission or rejection of the petition. Be that as it may. considering the fact that there was some arguable point which had not been, according to me, challenged by Shri Dias on behalf of the respondents Nos. 2, 3 and 5, I admitted the petition. Immediately upon the admission being ordered, the respondent made an application for restraining the respondents Nos. 2, 3 and 5 from holding the meeting. The question of the passing of the ad interim stay of the order of the respondents in that writ petition was neither argued nor was it considered by me because Shri Dias spontaneously agreed that, the respondents Nos. 2, 3 and 5 who were the only three respondents in that writ petition, be restrained from holding the meeting.
3. On 12-09-1972 another meeting was convened by respondent No. 2 which took place on 15-09-1972. On 14-09-1972 after the Court hours were over, the respondent No. 1 presented to this Court an unregistered writ petition against the appellants and respondents Nos. 2, 3 and 5. The petition was thereafter registered a little before 5.30 p. m. Shri Rao saw me in my chamber to have the writ petition admitted and an order staving the holding of the meeting, passed. Shri Dias came along with Shri Rao. It was stated by Shri Rao that notice that the petition was going to be filed and a copy of the petition was given to Shri Dias. It appears that no such notice was given to the remaining respondents in that petition. As a Caviat had already been filed by the appellants their advocate, Shri Gopal Apa Kamat who by chance happened to be in the Court premises was called to the chamber. Shri Dias stated on behalf of the respondents Nos. 2, 3 and 5 that he had no objection that an ad interim stay be passed against them in case the writ petition was admitted. He showed no concern with the admission or rejection of the petition. Shri Gopal Apa Kamat objected to the petition being argued in the chamber after 5.30 p. m. particularly because it was not filed earlier and no justification was given for the delay in filing it. I found no reason why the petition should be heard at that hour of the day when no plausible explanation was given, w
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