Advocates:
['ADV SANDESH D PADIYAR', '', 'ADV PRILAM PHADTE', 'ADV PRASHIL AROLKAR', 'ADV SANKALP SINAI BHANGUI', 'ADV ANJALI AGRAWAL', 'ADV GURU SHIRODKAR', '', '', '', 'ADV PRITAM ROHIDAS GAUDE', 'amp']

-1-

IN THE HIGH COURT OF BOMBAY AT GOA

CIVIL REVISION APPLICATION NO. 30 OF 2016

1.

Mrs. Lidia Inacia da Cunha,

Wife of Late Shri Joao Alexio Do Rosario

Fernandes, Major of age,

2.

Mrs. Cruzina alias Zina Fernandes,

Daughter of late Shri Joao Aleixo

Do Rosario Fernandes,

Major of age, through its Power of Attorney

holder, Petitioner no.4.

3.

Nevil Fernandes,

Husband of Mrs. Cruzina alias

Zina Fernandes,

Major of age, through its Power of Attorney

holder Petitioner no.4.

4.

Mrs. Samya Fernandes,

Daughter of Late Shri Joao Alexio

Do Rosario Fernandes,

Major of age,

5.

Mr. Savio Coutinho,

Husband of Mrs. Samya Fernandes,

Major of age, through its Power of

Attorney holder Petitioner no. 4,

All above residents of House No.338,

Buticas, Navelim, Salcete, Goa.

…...Petitioners

(Original Defendant

Nos.4 to 8)

V e r s u s

-2-

1.

Shri Antonio Fernandes,

Major of age,

Son of late Shri Antonio Tiago Fernandes,

Seaman, and his wife,

2.

Shri Palmira Ursula Fernandes,

Major of age, housewife,

Both residents of House No.338/B,

Buticas, Navelim, Salcete, Goa.

3.

Shri Domingos Rosario Fernandes,

Major of age,

Son of Late Shri Antonio Tiago Fernandes,

Resident of House no.667,

Calvaddo, navelim, Salcete Goa.

4.

Shri Antonio T. Fernandes,

Major of age,

Son of Late Shri Leao Aleluia Fernandes and

5.

Shri Alberto Fernandes,

Major of age,

Son of Late Shri. Leao Aleluia Fernandes

Both residents of House No.52,

Near CRSC Club, Colmorod,

Navelim, Salcete Goa.

…...Respondents

Mr. S. D. Padiyar, Advocate for the Applicant.

Mr. Guru Shirodkar, Advocate for the Respondents.

-3-

Coram

:- SMT.

M. S. JAWALKAR,J.

Reserved on

: 24

th

September,2020

Pronounced on:25

th September,2020

JUDGMENT

1.

Heard Mr. S. D. Padiyar, learned Counsel for the revision

applicant and Mr. Guru Shirodkar, learned Counsel for the

respondent nos. 3, 4 and 5.

2.

The present revision application is filed by applicants, the

newly added defendants, in counter claim in Regular Civil Suit

no.136/2011/E. For the sake of brevity, it will be referred to as “the

said suit”.

3.

For the sake of convenience, parties will be described as per

their nomenclature in the suit.

4.

The present revision application is filed being aggrieved by

the order below exhibit 57 in the said suit i.e. application under

Order 7 Rule 11 of the Code of Civil Procedure (CPC), by the

newly added defendants in counter claim.

5.

There is no dispute that the original suit is filed on

11.05.2011 by the plaintiffs no.1 and 2. The suit was filed against

the defendant nos.1 to 3 (respondent nos.3 to 5 in the present

-4-

application) for the relief in the nature of permanent injunction

against the defendants from doing any work of construction

specifically of compound wall or the room in the suit property.

6.

The defendant nos. 1, 2 and 3 filed written statement on

06.07.2011 and also filed counter claim against the plaintiff nos. 1

and 2 seeking relief in the nature of declaration and injunction.

Issues were framed on 13.06.2012.

7.

On 29.07.2015, one application was moved by the defendant

nos.1 to 3 under Order 1 Rule 10 of CPC to add present applicants

as the parties to the counter claim. On 09.10.2015, the Court

passed the order adding present petitioners as defendants in the

counter claim. It is also admitted fact that summons were served to

the present applicant on 20.02.2016. On 11.03.2016, written

statement to the counter claim was filed by the newly added parties

(present applicant) and they have also filed on the same date,

application under Order 7 Rule 11 of the CPC on two grounds that

there is no cause of action disclosed in the application against the

present applicant and secondly, counter claim is ex-facie hopelessly

barred by the law of limitation to the extent of newly added parties.

On these counts prayed for rejection of counter claim against them.

-5-

8.

Defendant nos.1 to 3 filed their reply to the said application

and the learned Civil Judge, Junio