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2023 Supreme(Online)(Bom) 17481
IN THE HIGH COURT OF BOMBAY
P.D. NAIK, J.
Roza v. Raymond Felix D'souza
Civil Suit No. 198/2015 / C
For the Appellants/Petitioners: Mr. Bhobe
For the Respondents: Mr. Lotlikar
Insufficient pleadings without required documentation do not support claims under specific eviction protection laws.
Headnote:The court analyzed the applicability of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (§31(2) & §32) in the context of a plea of mundkarship made by the petitioners. The court found insufficient pleadings and lack of evidence to substantiate the claim of mundkarship, leading to the refusal to frame issues. The primary issues framed were related to whether the defendants qualify as mundkars and whether the court has jurisdiction over such claims, ultimately determining that the claims were vague and unsupported, resulting in the dismissal of the case.
| Table of Content |
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| 1. pleadings must specify grounds for mundkarship. (Para 1 , 2 , 3 , 5) |
| 2. court's observations on vague claims. (Para 6 , 8 , 12 , 15 , 16 , 18) |
| 3. final decision on the merits of the petition. (Para 9 , 22) |
| 4. arguments presented regarding jurisdiction. (Para 10 , 11 , 14) |
| 5. judicial responsibility in examining pleadings. (Para 19 , 20 , 21) |
1. The petitioner is aggrieved by order dated 20.04.2023 passed on a preliminary issue at Exhibit B - 39, order dated 14.07.2023 and order dated 19.07.2023 passed by the learned Civil Judge, Junior Division in Civil Suit No. 198/2015 / C.
2. On 17th December, 2015, the respondent no.1 instituted a suit for eviction and permanent injunction against the petitioners / original defendant Nos. 1 to 4 before the Court of Civil Judge, Junior Division at Bicholim, Goa, which was registered as Regular Civil Suit No. 198/2015 / C.
3. The petitioners filed written statement on 22.03.2016 disputing the claim of respondent no.1 and raised a plea of mundkar under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 , (hereinafter referred to as Mundkar Act). The respondent no.1 had filed an application for temporary injunction. Vide order dated 02.11.2018, the application for temporary injunction filed by respondent no.1 was rejected. Civil Appeal no.106 of 2018 was preferred before the District Judge and the order dated 02.11.2018 was modified by the learned District Judge vide order dated 27.12.2019. The respondent had preferred application no.800 of 2020(F) before this Court challenging order dated 27.12.2019. By order dated 16.02.2023 passed by this Court in the aforesaid application, the trial Court was directed to dispose of Regular Civil Suit no. 198/2015 / B as expeditiously as possible and not later than six months since the pleadings are complete. It was further directed that in case the issue of mundkarship is framed on the basis of pleadings of the respective parties, the trial Court shall refer such issue to the concerned authorities by staying the suit. The trial Court was directed to first frame issue after hearing the parties.
4. The respondent no.1 had expired and the legal heirs of respondent no.1 were brought on record. They are arrayed as respondent Nos. 1(a), 1(b), 1(c), 1(d), 1(e) and 1(f).
5. On 04.03.2023, the trial Court framed preliminary issue and five other issues. The preliminary issue no. 1 was as follows :
"(i) Whether the defendants prove that there is a plea of mundkarial issue with respect to the suit house in the suit property known as "Borcheve Gallucee" described in the Land Registration Office of Bardez under no. 17694 at page 170 V of Book 45 (New) and enrolled in the Land Revenue Office of Bardez, under no. 2670 of 2nd Circumscription of Tivim and surveyed under no. 283, sub-division no.7 of Village Tivim, Bardez Taluka, which has to be tried by the Mamlatdar of Bardez ?"
6. Vide order dated 20.04.2023, the learned Civil Judge refused to frame the issue as to, whether the defendants / petitioners proves to be the mundkar of the suit house ?
7. The petitioners preferred an application for re - casting of issues under Order XIV R.5 of Civil Procedure Code (CPC) on 27.04.2023. It was contended that the defendants had filed the draft issues on the basis of pleadings made by the defendants in the written statement and the draft issue was whether the defendants prove that the defendants are the mundkars of the suit property. The defendants have denied the pleadings of the plaintiff made in the plaint and taken the defence that the defendants are mundkars of the suit property. It was prayed that, Court may recast the issue and frame an additional issue that whether the defendants prove that the defendants are the mundkars of the suit property as the defendants have clearly taken the defence of mundkarship in their written statement. The respondent no.1 / plaintiff filed reply to the application for re - casting of issues on 06.05.2023. It was stat
