Letters Patent Appeal; Cross Objectio No.7 of 1996; 6 of 1996. Case: Chandreshwar Bhuthanath Devastan Of Paroda Vs Suburaj Prabhakar Naik & Ors.. High Court of Bombay (India)

Case NumberLetters Patent Appeal; Cross Objectio No.7 of 1996; 6 of 1996
CounselM S Usgaonkar, V P Thali, S G Dessai, P Talaulikar
JudgesS. C. Dharmadhikari, J.
IssueCode of Civil Procedure, 1908 - Order 20, Rules 12, Order 7, Rules 7, Order 41, Rules 27(B)
Judgement DateSeptember 19, 2008
CourtHigh Court of Bombay (India)

Judgment:

This letters patent appeal is directed against a Judgment and Decree delivered by a learned Single Judge of this Court in First Appeal No.42/1985 and First Appeal No.114/1985. By the Judgment and Decree dated 20.6.1995, the learned Single Judge directed as under:

" For the foregoing reasons First Appeal No.42 of 1985 partly succeeds. Accordingly Special Civil Suit No.2 of 1983 is partly allowed and decreed as under:

The property Oiterio Porvot as described in the plaint consists of Survey Nos. 86, 161, 161, 128, 127, 126, 116, 115, 114, 87, 88, 81, 82, 83, 84, 85 in Mullem Village; Survey Nos. 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 91, 70, 69, 68, 67, 66, 62 in Paroda Village and Survey No. 54 in village Talvorda as stands demarcated in the plan annexed by the Commissioner, to his report dated 13th February 1992 (Ex. C. Collectively).

The property Carea dunna @ Carea galli comprises of Survey Nos. 167, 152 (P) of village Mullem and shown in the same plan (Ex.C collectively) Possession of that part of the property bearing survey No.86 is restored to the original plaintiff-appellant.- Deity. Permanent injunction in terms of prayer (b) of the plaint, restraining Naiks-original defendants- Respondents in appeal from interfering with the property Oiterio Porvot or any part of the property bearing survey No.86.

No order for mesne profits and the Appellant- Deity is at liberty to seek enquiry under Rule 12, O.XX of the Civil Procedure Code. Demarcation of the property Oiterio Porvot be got done in terms of Commissioner's report on Loco in execution. To the extent indicated, judgment and decree dated 15th February 1985 of the trial Court is quashed and set aside.

Civil Appeal No.114 of 1985 is dismissed and impugned judgment and decree dated 15th February, 1985 of the trial Court is confirmed, dismissing Regular Civil Suit No.66 of 1977."

First Appeal No.42/85 was filed by the appellants which are original plaintiffs in Special Civil Suit No.2/1983. That suit was dismissed by the learned trial Judge by his Judgment and Order delivered on 15/2/85 and the learned Single Judge by the impugned Judgment partly decreed the suit.

First Appeal No.114/85 was at the instance of the defendants in Special Civil Suit No.2/1983 who are respondents before us. They assailed the Judgment and Decree of the trial Court dismissing their regular civil suit being Regular Civil Suit No.66/1977.

The respondents to this appeal have not challenged the Judgment and Decree of the learned Single Judge, in so far as dismissal of their suit is concerned. All that they have done is filing cross objections in the letters patent appeal.

The letters patent appeal was admitted by this Court and it appears that upon Section 100A of the Code of Civil Procedure prohibiting letters patent appeals, being brought into effect on 1.7.2002, a preliminary objection was raised to the maintainability of this letters patent appeal by the respondents. That objection was raised when the appeal reached the stage of hearing and final disposal sometime in September, 2002. By an order dated 18.9.2002, a Division Bench of this Court held that the present letters patent appeal was not maintainable and dismissed the same. Aggrieved thereby, the appellants carried the matter to the Supreme Court and the Supreme Court accepting the correctness of the view expressed by a Full Bench of this Court in Sharad Awasthi vs. Ratnakar Trimbak Pandit, (2004) 3 Mah. L.J. 706, reversed the order of the Division Bench and held that the letters patent appeal is not barred by virtue of Section 100A of the Code of Civil Procedure which is brought into effect from 1.7.2002.

It is, thereafter, that the letters patent appeal has reached hearing and final disposal before us. At the hearing and final disposal, Shri S. G. Dessai, learned Senior Counsel appearing for the respondents once again contended that the present letters patent appeal is not maintainable. He argued that a letters patent appeal is maintainable under Clause 15 of the Letters Patent of Bombay High Court. That clause providing for a letters patent appeal against a Judgment and Decree rendered in a first appeal itself has been repealed by an enactment which is known as "Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986. That enactment was notified on 27.5.1987 and said Notification was published in the Maharashtra Government Gazette dated 4.6.1987. In such circumstances, when Maharashtra Legislature had abolished a letters patent appeal, that abolition Act would, with all force, apply in Goa State, assuming that such an Act has force and operation outside the State of Maharashtra.

Apart from this, Shri Dessai contended that Goa is a separate State. It may be that a Goa Bench of the Bombay High Court was set up in 1982, however, Goa State came into being from 30/05/1987. The Goa State Reorganization Act contemplates a common High Court for the State of Maharashtra and Goa. However, merely because the Act contemplates a common High Court, does not mean that the Letters Patent of Bombay High Court would automatically apply and will be in force in the State of Goa. It is contended that a letters patent appeal will not automatically lie at Goa, before a Division Bench as the Letters Patent of Bombay High Court is in force and applicable only in the areas coming within the State of Maharashtra. Therefore, the High Court, being a common High Court for both the States, does not automatically mean that a Letters Patent Appeal provided by Clause 15 of the Letters Patent of Bombay High Court is capable of being filed and maintainable at Goa. Mr. Dessai has traced the history right from the time when Goa was a Portuguese Colony. He has traced the history right from Indian High Courts Act, 1861, the Letters Patent of Bombay High Court which is applicable Letters Patent, namely 28/12/1862. He has taken us through the Amendment to Clause 15 of the said Letters Patent. Thereafter, he has taken us through the Letters Patent (Amendment) Act, 1948 after India became independent. He has also taken us through the developments after Goa became a territory of India with effect from 20.12.1961. He has taken us through the Goa, Daman and Diu (Administration) Ordinance, 1962 providing for continuance of Portuguese Laws applicable in Goa prior to liberation. He has invited our attention to the Goa, Daman and Diu (Administration) Ordinance, 1962 and more particularly Section 7 thereof. He has also invited our attention to the fact that Section 6 of this Act was repealed with effect from 7.12.1964.

Shri Dessai has emphasized the fact that the Judicial Commissioner's Court was set up for the Union Territory of Goa, Daman and Diu, replacing the Tribunal de Relacao and he has invited our attention to the Goa, Daman and Diu Judicial Commissioner's Court (Declaration of High Court) Act, 1964. He submits that with effect from 16.12.1963, Section 7 of the Administration Act, 1962 providing for extension of Bombay High Court is repealed. Shri Dessai has taken us through the High Court at Bombay (extension of Jurisdiction to Goa, Daman and Diu) Act, 1981 and contended that a Permanent Bench of Bombay High Court was established at Panaji, Goa on 30.10.1982, transferring the pending proceedings in the Court of Judicial Commissioner and abolishing Court of Judicial Commissioner. It is in this manner that First Appeal No.114/1985, preferred by the respondent challenging the Judgment and Decree of disposal of Regular Civil Suit No. 66/77, rendered by the Trial Court came to be transferred to this Court. Lastly, he has invited our attention to the Maharashtra High Court (Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986 referred to above.

In such circumstances, Shri Dessai contends that the Goa, Daman and Diu Re-Organisation Act, 1987, forming the State of Goa and stating that there shall be a common High Court for the States of Maharashtra and Goa, and entitled as "High Court of Bombay", by itself, does not mean that the letters patent appeal would be maintainable. That is his precise submission.

On the other hand, Mr. Usgaonkar, learned Senior Counsel appearing for the appellant, controverting these submissions, has contended that the plea of maintainability of this letters patent appeal cannot now be raised once again after the preliminary objection raised by the respondent is overruled earlier by the Honourable Supreme Court. All preliminary objections and particularly those with regard to the maintainability of the letters patent appeal stand concluded. He submits that the principles of res judicata/constructive res judicata or analogous thereto would apply and the respondents are deemed to have waived the present preliminary objection.

That apart, Mr. Usgaonkar was at pains to point out that this preliminary objection is also without any substance. He submits that if the statutory enactments in the field are properly construed, it would be clear that in view of the 1981 Act, Letters Patent of the High Court, particularly Clause 15 became applicable to the territories of Goa, Daman and Diu. In the light of the 1981 Act, Section 7 of the Administration Act, 1962 was repealed. He submits that, therefore, the Letters Patent Appeal was maintainable. Further, he submits that the Abolition Act, 1987 enacted by the Maharashtra Legislature, was subject-mater of challenge before the Supreme Court. That challenge was raised by one Jaimini B. Chinai and the Hon'ble Supreme Court rendered the Judgment and Order upholding the same in the year 2004- 05 and from 1987 to 2005, the enactment, abolishing the Letters Patent, was not brought into effect in the State of Maharashtra itself. Therefore, the present letters patent appeal filed during the period when the Act was not in force, is perfectly maintainable and must be decided...

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