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IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 972 OF 2019

Michael Mascarenhas @

Micael Mascarenhas

…...Petitioner

V e r s u s

Vasanti Walke & anr.

…...Respondents

Mr. Balkrishna Prakash Sardessai and Ms. M. Shirodkar, Advocates for the

Petitioner.

Mr. Amey Kakodkar, Advocate for the Respondents.

Coram

:- M. S. SONAK, J

Date : 16

th June, 2021

ORAL ORDER

1.

Heard Mr. Balkrishna Sardessai, learned Counsel for the Petitioner

and Mr. Amey Kakodkar, learned Counsel for the Respondents.

2.

The challenge in this Petition is to the order dated 01.11.2019, by

which the learned Civil Judge has dismissed Petitioner's application for

framing of an additional issue in terms of Order 14 Rule 5 of the Civil

Procedure Code.

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3.

Mr. Sardessai, the learned Counsel for the Petitioner, submits that no

sanad or purchase certificate and/or registration could have been issued to

the defendants in the absence of any declaration that the defendants were

indeed the Mundkars in respect of the suit house. He submits that the

sanad is therefore a nullity and the issue as to whether the defendants are

Mundkars, in the absence of any declaration under Section 8-A of the Goa

Daman and Diu Mundkars Act, arises in this matter. He submits that the

learned Civil Judge was therefore not right in dismissing the Petitioner's

application for framing of such additional issue. Mr. Sardessai submits that

the issue as to whether the defendants are indeed the Mundkars of the suit

house or not, could not have been directly or indirectly decided by the Civil

Court, in view of the bar of jurisdiction provided under the Goa Daman

and Diu Mundkars Act. For all these reasons, he submits that the impugned

order warrants interference.

4.

Mr. Kakodkar, learned Counsel for the Respondents, submits that the

application for framing of additional issues was moved at a belated stage.

He submits that the sanad issued in favour of the defendants was never

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challenged and, therefore, the learned Civil Judge was quite right in

dismissing the Petitioner's application. He submits that there is no

jurisdictional error and, therefore, this Petition may not be entertained.

5.

Mr. Sardessai, learned Counsel for the Petitioner, by way of rejoinder,

pointed out that now the Petitioner has already taken up appropriate

proceedings to challenge the sanad or the registration or purchase certificate

issued in favour of the defendants and such proceedings are pending before

the appropriate forum. He submits that this is an additional ground why

the impugned order ought to be interfered.

6.

Having heard the rival contentions, according to me, there is no case

made out to warrant interference with the impugned order in the exercise of

jurisdiction under Article 227 of the Constitution of India.

7.

The issue as to whether the sanad, purchase certificate or the

registration was rightly granted or not is now pending adjudication before

the appropriate forum. The appropriate forum will therefore determine

whether the sanad was correctly granted or not. Neither the pendency of the

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present suit nor the impugned order can come in the way of the appropriate

forum making such a determination.

8.

However, merely because such adjudication is pending, there is no

ground for framing of an additional issue by the Civil Court in the pending

suit. Ultimately, it must be noted, the suit is for an injunction simplicitor.

The impugned order, as observed, that it is the defendants who are in

possession of the suit house. In such a suit, therefore, there is no necessity of

framing the additional issue as proposed.

9.

If ultimately the sanad is cancelled or held to be a nullity, then, the

legal consequences, a