MODUSUDAN CAMATIM TIMBLO Vs. DAYA BOGVONTA MAHALE

JUDGEMENT

(1.) THE appellants are the legal heirs of Modusudan Camatim Timblo, who had filed suit before the Comarca Court at Quepem on 3.3.1965 which was equated to the Court of Civil Judge, Sr. Division by Goa, Daman and Diu Civil Courts Act, 1965 (hereinafter called as the 'said Act'). After the coming into force of the said Act on 15.6.1966 the suit against the Government had to be filed before the District Court in terms of Section 26 of the said Act. The said Modusudan Timblo died during the pendency of this appeal. One of the parties to this suit as defendant, is State of Goa. The suit is for permanent injunction and recovery of damages. By Judgment dated 2.4.1990, after answering issues Nos. 1, 2 and 4 in favour of the plaintiff, the Civil Judge, Sr. Division held that the Court of Civil Judge, Sr. Division had no jurisdiction to try the suit and ordered the plaint to be returned to file the same in proper Court of law. The. learned Civil Judge, Sr. Division was of the view that in view of Section 26 of the Civil Court Act, 1965, the jurisdiction to try the suit against Government vested with the District Judge and, as such, the entire proceedings were vitiated since the Court of Civil Judge, Sr. Division had no jurisdiction. In fact, an application had been filed on 30.1.1981 by the Government Advocate before the Civil Judge, Sr. Division contending that the Court of Civil Judge, Sr. Division had no jurisdiction to try the suit. The learned Civil Judge, Sr. Division passed an order to send the proceedings to the District Court. This order was challenged in appeal before the District Court and the District Court passed an order that there was no provision authorising the Civil Judge to remit the suit pending in his file to the District Court to adjudicate any points raised before him including the point of jurisdiction.

(2.) LEARNED Senior Counsel Shri M.S. Usgaonkar, relying upon Section 34(2)(b) of the said Act, has submitted before us that this Section deals with repeal and savings and lays down that every proceeding pending before a Court of Comarca immediately before the commencement of this Act shall, on such commencement, stand transferred to the corresponding Court or Senior Civil Judge. Since this suit was filed on 3.3.1965 and was pending at the time of coming into force the said Act on 15.6.1966, the pending proceedings had to continue in the Court of Civil Judge, Sr. Division and only fresh suits against the Government were required to be filed before the District Court in terms of Section 26 of the said Act. He further drew analogy on the basis of amendment to Section 26, which came into force with effect from 27.4.1987. By Goa, Daman and Diu Civil Courts (Amendment) Act, 1987, the words 'District Court' in Section 26 of the said Act were substituted by words 'Courts of a Senior Civil Judge'. Consequent to this change of jurisdiction, the issue was raised in a civil suit and the matter came up before this Court in Civil Revision in Union of India and Ors. v. K.S. Mamadapur and Bros 1991 (1) Goa L.T. 372. In this Judgment, it was held that the pending suits before the District Judge would continue with him, but only fresh suits will have to be filed before the Court of Civil Judge, Sr. Division. In addition, it is further submitted by learned Senior Counsel for Appellant that on the date of passing of the Judgment in the matter under consideration, the Court of Civil Judge, Senior Division, was in fact empowered to try the cases in which the Government is a party. Accordingly, the learned Senior Counsel Shri Usgaonkar submitted that the findings of the Lower Court on the question of jurisdiction cannot be sustained and the same are required to be set aside.

(3.) SECTION 34, in so far as it is relevant for the purpose of decision in this case, reads as under: