23-SA-79-19-MCA.-197-21.DOC

Santosh

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO.79 OF 2019

WITH

MISC. CIVIL APPLICATION NO. 197 OF 2021

Mrs. Santana Pinto,

daughter of late tome Jose D'Souza,

wife of Thomas Pinto, major,

married, housewife, resident of

H.No.48, Cuxem, Aldona, Bardez,

Goa.

…. Appellant.

Versus.

Mr. Mario Dias,

major, married, service, resident

of H.No.134, Quirnina, Quitla,

Aldona, Bardez, Goa.

….. Respondent.

Mr. Sudin Usgaonkar, Senior Advocate with Mr. Kishan C.

Padgaonkar, and Mr. Shukr Usgaonkar, Advocates for the

Appellant.

Mr. Nigel da Costa Frias, with Mr. Gauresh Malik,

Advocates for the Respondent.

CORAM :

M. S. SONAK, J.

DATE : 10

th November 2022

ORAL JUDGMENT: -

1.

Heard Mr Sudin Usgaonkar, learned Senior Advocate,

who appears along with Mr Kishan C. Padgaonkar, Mr Shukr

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Usgaonkar for the Appellant, and Mr Nigel da Costa Frias, who

appears along with Mr Gauresh Malik for the Respondent.

2.

On 24

th February 2022, this Court made the following

Order:

"CORAM: MANISH PITALE, J

DATED: 24th February 2022

P.C.

1.

Heard Mr. Usgaonkar, learned Senior Counsel

appearing for the Appellant.

2. On 18.12.2019, notice was issued to the Respondent,

who has entered appearance through Counsel. Today, this

Appeal was taken up for consideration on the aspect as to

whether any substantial question of law arises for

consideration.

3. Having heard the learned Senior Counsel for the

Appellant, issue notice, returnable on 11.04.2022, for

final disposal at admission stage, on the following

substantial questions of law :

(a) Whether the finding of the first Appellate Court

that admission of the execution of the Agreements is

not enough in the facts and circumstances of the case

is perverse without specifying the said fact and

circumstances ?

(b) Whether the Courts below overlooked that in the

absence of clear denial of last Agreement of leave and

Licence dated 04/06/2014 in the Written Statement,

the same was to be taken as admitted as per Order

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VIII R.5 of Civil Procedure Code ?

(c)

Whether the Courts below misconstructed the

two Agreements of Leave and License, failing to

realize that the contractual relation was only between

the executants of the Agreements i.e. the Appellant

and the Respondent and therefore, instead of

concentrating on the Appellant and the Respondent,

the Courts fell into error in shifting focus on the

occupation of the house by Francis, father of the

Respondent, who was neither a party to the

Agreement nor his name was mentioned therein?

(d) Whether the first Appellate Court committed

illegality in holding that Notary evidence was essential

in view of Defence of cheating/misrepresentation

when function of a Notary as per section 8(1)(a) of

the Notaries Act, 1952 is to attest the signature which

in the present case was admitted by the Respondent?

(e) Whether the Courts below erred in declining

prayer (b) only because no demand was made under

Order 15A during the pendency of the Suit?

4. Mr. G. Malik, Advocate, waives notice on behalf of sole

Respondent."

3.

This Appeal was taken up for final hearing on 6^th October

2022. After hearing the Counsel for some time, the following

Order was made on 6

th October 2022.

“CORAM: M. S. SONAK, J.

DATE : 6th OCTOBER 2022

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23-SA-79-19-MCA.-197-21.DOC

P.C. :

1.

After hearing the learned Counsel for the parties for

some time, according to me, the following main

substantial questions of law arise in this matter:

(a) Whether the agreements dated 23.05.2013 and

04.06.2014 constitute a lease or a license?

(b) Whether considering the other evidence on

record, the relationship between the Appellant and

the Respondent can be styled as one of the lessor-

lessee?

2. Accordingly, in exercise of the powers conferred by

Section 100(5) of