COMUNIDADE OF CURTORIM Vs. ANTONIO DIAS

JUDGEMENT

(1.) THE defendants in Special Civil Suit No. 2/90 filed this appeal. They challenge the order passed by the Additional Civil Judge, Senior Division, Margao, dated 14th February, 1994. By this order two applications have been disposed of by the Court below. One is Civil Miscellaneous Application No. 2/90 which has been filed by the plaintiffs for interim injunction restraining the defendants from demolishing or uprooting the plantation in the suit property or in any way interfering with the possession of the plaintiffs. Civil Miscellaneous Application No. 160/90/b was filed on behalf of the defendants praying to maintain status quo with regard to the suit property. Both these applications were disposed of by the trial Court by passing the order impugned in this petition. By this order Civil Miscellaneous Application No. 160/90 has been dismissed and the injunction sought by the plaintiffs in Civil Miscellaneous Application No. 2/90 has been granted.

(2.) THE learned Counsel for the appellants Mr. DCosta, has contended that the Court below has not considered the relevant material and the legal points urged before the Court below. He argues that an objection which has been raised in the suit that notice under section 80 Civil Procedure Code has not been served on defendant No. 2, being a public servant before the filing of the suit and the suit is barred. The Court below has dealt with this objection by saying that an urgent order has to be obtained from the Court to avoid imminent danger to the suit property and therefore non-issue of notice under section 80 Civil Procedure Code is justified. Mr. Sardessai, learned Counsel for the respondents submits that the point regarding issue of notice under section 80 has to be addressed in another context, namely, it is the contention of the plaintiffs that the defendants are not public servants, which makes mandatory to have a notice under section 80 Civil Procedure Code. However, this issue has to be decided in the suit since it has been raised by the defendant. It is not at this stage for this Court to decide that issue. But the manner in which that aspect has been dealt with by the lower Court is not at all satisfactory. It is needless to say that an urgency will not dispense with the issue of notice under section 80 Civil Procedure Code. One can understand a situation where section 80 notice is issued and before the completion of two months the plaintiffs had to file a suit because of the urgent situation. Here the Court below said that because of the urgency the notice was not required. That is absolutely illegal and erroneous. The Court below has found that the plaintiffs have made out a prima facie case. When a point regarding maintainability of a suit on account of non-issuance of section 80 notice was raised, I am at a loss to understand as to how the lower Court comes to the conclusion that the plaintiffs have succeeded in establishing a prima facie case. When in a case an objection to the jurisdiction of the Court is raised, when the Court prima facie finds that such objection is not sustainable, it cannot be said that the plaintiffs have made out a prima facie case.

(3.) APART from that, the learned Counsel for the appellants brought to my notice about another serious objection that has been raised by the defendants in the suit. It is the case of the defendants that the document relied upon by the plaintiffs to prove their title and possession of the property is a fraudulent document and that specific plea has been taken before the Court below about this fraudulent nature of the document. Surprisingly, this aspect has not been dealt with by the Court below in finding the prima facie possession and title of the suit property in the plaintiffs. Not only that, a document has been produced before the Court below, being a copy of the petition filed by the Comunidade before the District Collector, which mentions about the manipulation of the documents against some revenue officers in charge of the matter and that petition is filed much before the filing of the suit at an undisputed point of time. In this context it is the primary duty of the Court to look into that objection and then evaluate the document on title which has been relied upon by the plaintiffs. On the basis of these very material defects pointed out above the conclusion arrived at by the Court below that the plaintiffs are entitled for injunction prayed for is therefore illegal and erroneous and liable to be set aside.