ANA ALEXANDRINA GONSALVES Vs. DURGANAND R SAWARDEKAR

JUDGEMENT

(1.) Heard Shri Rohit Bras De Sa, learned Counsel appearing for the Petitioner and Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Respondent nos. 1 to 5. The above Petition challenges the Orders dismissing an application for temporary injunction passed by the Courts below whereby in a suit filed by the Petitioner for declaration that the Eviction Proceedings bearing no. RENT/ADC/01/97 and the Judgment in eviction obtained in the said proceedings being Order dated 12.09.2008, is vitiated by fraud and is null and void abinitio viz a viz the Petitioner herein. The Petitioner has also sought for relief to the effect that the Petitioner is not liable to be vacated from the suit premises on the basis of the said Judgment. Pending the hearing of the said suit, the said application came to be filed for temporary injunction restraining the Respondent nos. 1 to 5 from acting upon the Judgment of eviction passed in the said proceedings.

(2.) It is the case of the Petitioner that a Lease Agreement was entered on 07.02.1975, at Curchorem, between Mr. Durganand Ramnath Sinai Sawardekar and Mr. Eustaquio Dias, resident of Panaji, and late husband of the Petitioner Shri Venceslau Gonsalves. The said husband of the Petitioner had taken on lease the house/bungalow consisting of the ground, first and second floor, situated at Panaji, within the Municipal area of Panaji City on monthly basis. It is further the case of the Petitioner that by the said Lease Agreement dated 07.02.1975 the premises were taken on lease by Eustaquio Dias and his wife along with the Petitioner and her husband. It is further her case that rent was to be paid at the residence of the lessor. It is further the case of the Petitioner that the Respondent nos. 1 to 5 who were the landlords, filed an eviction proceedings against the Respondent nos. 6 to 8 respectively without making the Petitioner as a party to such proceedings. It is further the case of the Petitioner that the Landlords/Respondent nos. 1 to 5, deliberately did not make the Petitioner a party and on account of such fraud, obtained the Order for eviction. It is further the case of the Petitioner that the husband of the Petitioner expired somewhere on 28.10.2003 and that upon his death, the Petitioner was also not brought on record whereas only Respondent no. 6, who is her son, was brought on record. It is further her case that the relation between the Petitioner and her son are estranged and that the whole proceedings on the part of the Respondent nos. 1 to 5 were fraudulently which deprive the Petitioner to put up her defence. For the other reasons stated in the plaint, the Petitioner has filed the suit seeking declaration as mentioned herein above as well as an application for temporary injunction as mentioned above.

(3.) Respondent nos. 1 to 5 resisted the suit by disputing the contentions of the Petitioner. It was their case that the Agreement was entered into with the husband of the Petitioner and Eustaquio Dias, who were carrying out business activities in the suit premises and that there was no fraud committed by the Respondent nos. 1 to 5. It is their case that the suit has been filed in collusion with Respondent no.6 only to deprive the Respondent nos. 1 to 5 the fruits of the eviction proceedings which were passed in their favour.