Bombay High Court
James P. Faria And Anr vs Gopalkrishna Govind Savoikar (Dec.) ... on 2 August, 2024
2024:BHC-GOA:1260
2024:BHC-GOA:1260 CRA.01.2011
Shakuntala
IN THE HIGH COURT OF BOMBAY AT GOA
CIVIL REVISION APPLICATION NO.1 OF 2011
1. Shri James Pegeot Faria,
About 45 years of age, and his wife
2. Smt. Olinda alias Pedeot Faria,
About 40 years of age, both r/at
Zambaulim, Sanguem, Goa .....APPLICANTS
Versus
Gopalkrishna Govind
Savoikar(deceased), 84 years of
Age, landlord, residing at H.No.116,
Zambaulim, Sanguem, Goa, represented by,
His legal representatives:
(a) Mr. Mohan Gopalkrishna Savoikar, major bachelor,
(b) Miss Bharati Gopalkrishna Savoikar, major,
unmarried,
(c) Miss Maktamala Gopalkrishna Savoikar, major,
Unmarried,(deceased)
(d) Miss Madalasa Gopalkrisna Savoikar, major,
unmarried
(e) Mrs. Shamla Ramesh Kulkarni, major, unmarried,
(f) Mr. Ramesh G. Kulkarni, Major,
(g) Miss Usha Gopalkrishna Savoikar,
Major, unmarried,
(h) Miss Aruna Gopalkrishna Savoikar, major,
Unmarried, (Deceased)
All r/at Zambaulim, Sanguem, Goa.
(i) Mr. Mihir Atre, s/o Late Ms. Aruna Savoikar
@ Ms. Aruna Atre, R/o 153, Beecroft Rd,
Unit 1810, Toronto, Ontario,
Canada, M2N-7C5 ....RESPONDENTS
::: Uploaded on - 07/08/2024 ::: Downloaded on - 11/08/2024 00:20:32 :::
CRA.01.2011
Mr. Nitin Sardessai, Senior Advocate with Mr. Gaurang
Panandikar, Mr. Siddharth Sardessai and Mr. Kabir Sabnis,
Advocates for the Applicant.
Mr. Parikshit Sawant, Advocate for the Respondent.
CORAM: BHARAT P. DESHPANDE, J.
RESERVED ON : 24th JULY 2024
PRONOUNCED ON 02nd AUGUST 2024
JUDGEMENT
1. Heard, Nitin Sardessai, Senior Advocate with Mr.
Gaurang Panandikar, Mr. Siddharth Sardessai and Mr. Kabir
Sabnis, learned Advocates for the Applicant and Mr. Parikshit
Sawant learned Advocate for the Respondents.
2. The present revision is filed challenging the order passed
by the Executing Court thereby directing the Applicant, first
of all, to remove the structure within a period of 30 days and
thereafter to be detained in civil imprisonment on payment of
subsistence allowance.
3. The Applicants are the Judgement Debtors against whom
a Judgment and Decree is passed and confirmed by the
Higher Courts including this Court while deciding Second
Appeal No. 24/1993. Though the Second Appeal was partly
CRA.01.2011
allowed wherein the eviction order of the Judgment Debtors
is quashed and set aside, the injunction order passed by the
Courts below was maintained.
4. The relevant portion of the Injunction Order passed by
the Courts below and more particularly against the Judgment
Debtors reads thus:
"Suit is partly decreed. The defendants, their
servants, agents and or their family members
are restrained by permanent injunction from
carrying out any repairs or making any
extension to the suit structure or from using the
same for residential purpose."
5. The second part of eviction was quashed and set aside in
Second Appeal No. 24/1993 decided on 10/01/1997. Thus, the
only relief that is available to the Decree Holders is the one
granted with regard to Injunction and as quoted above.
6. The Judgement Debtors accordingly filed an execution
application before the learned Civil Court vide Execution
Application No. 5/2002 wherein it has been claimed that the
Judgement Debtors in spite of the Decree, replaced local tiles
CRA.01.2011
of the structure with Mangalore tiles thereby substituting the
existing roof. The Decree Holder further claimed that the
Judgement Debtors further converted the Baguela into
Mangalore Tiles structure at the rear side and raised a wall of
bricks on the western side. The Judgement Debtors removed
the barbed wire fencing around the suit structure, replaced
the door on the western side, and constructed a structure for
a water meter on the northern side in the Baguela which was
converted into a Mangalore tile roof. The Judgement Debtors
further replaced wooden props. All these repairs were done
without permission and authority from the Decree Holders
and in violation of the Decree.
7. The Judgement Debtors filed reply to the execution
proceedings and thereafter, inquiry was conducted. The
Decree Holder as well Judgement Debtors led evidence. The
learned Executing Court vide the impugned order dated
02.03.2009 directed the Judgement Debtors to remove mud
bricks piled up one over the other upto one cubic and near the
Western Baguela, to remove the Pedestal or Meter structure
and put pot tiles on the roof of the main structure by removing
existing Mangalore Tiles but excluding Mangalore Tiles on the
CRA.01.2011
Veranda and the rear projection within 30 days. The
Judgement Debtor No. 1 was ordered to be detained in civil
imprisonment after completion of 30 days from the date of
order and on payment of subsistence allowance.
8. The Applicant/ Judgement Debtors challenged such an
order by filing Misc. Civil Appeal No.17/2009 before the
learned District Court which was allowed vide Judgement
dated 21.08.2009. However, the Respondent/Decree Holder
challenged such order passed by the District Court by filing a
Writ Petition No. 688/2009 which was decided by this Court
on 15.07.2010. This Court observed that since there is no
provision of filing of appeal against the order passed by the
Executing Court, more specifically, under Order XXI Rule 32
of the Civil Procedure Code, 1908 (C.P.C. for short), quashed
and set aside the order passed by the District Court in MCA
No. 17/2009. As a result, the order passed by the Executing
Court on 02.03.2009 was restored and became operative.
Accordingly, the present revision is filed challenging the order
passed by the Executing Court dated 02.03.2009 on various
grounds.
CRA.01.2011
9. Mr. Sardessai learned Senior Counsel appearing for the
Applicants would submit that the relief claimed in the
execution application is beyond the relief claimed in the suit.
Similarly, the Applicant is a Tenant and the suit was decreed
on the allegation that the Applicant has carried out repairs of
the said structure which is used for business purposes. The
Decree was passed after leading evidence to show that even
the old tiles were replaced with Mangalore tiles even prior to
the filing of the suit and more so, before passing the Decree.
10. Mr. Sardessai would submit that even during the
pendency of proceedings, with permission of the
Respondent/Decree Holder, some repairs including change of
rafters of the roof were carried out. He submits that when
rafters were changed, it is a normal consequence of removing
of the tiles and in that process, the possibility of damaging old
tiles is but natural. He submits that while replacing rafters,
only the damaged tiles were replaced, and that too in the
presence of the Decree Holder.
11. Mr. Sardessai was fair enough in admitting that one
wooden door was replaced, however, he submits that such an
CRA.01.2011
aspect would not be considered as disobedience or with an
intention to violate the orders of injunction so as to direct the
Judgement Debtor No. 1 to be sent to civil imprisonment. He
submits that as per the directions of this Court, the Applicants
are depositing an amount of Rs.7500/-(Rupees Seven
Thousand Five Hundred only) every three months, and at the
most, some amount could be handed over to the Decree
Holders by way of compensation.
12. Besides Mr. Sardessai submits that the allegations
regarding changes or replacement of the tiles erecting of the
wall, removal of the fencing, and constructing the wall for the
purpose of a water meter, would not in any manner be
considered as disobedience since such portions are not at all
considered as suit property which is found mentioned in the
plaint. He submits that disobedience must be restricted to suit
property for which a Decree was drawn.
13. Mr. Sardessai would further submit that the learned
Executing Court though agreed that some repairs were carried
out as per the consent given by the Decree Holders and in
their presence, opined only on the basis of two photographs
CRA.01.2011
that the Judgement Debtors replaced the tiles. He submits
that such photographs could not have been considered as
conclusive evidence for showing the replacement of tiles and
that too by disobeying the order of injunction. He submits
that impugned order is passed on the surmises and
conjectures and therefore, requires interference in the
revisional jurisdiction
14. Per contra Mr. Sawant appearing for the Respondent
would submit that the structure is used for business purpose
and water meter was placed by erecting a wall which amounts
to extension of the Baguela which is also used for commercial
purpose. He would submit that the Judgement Debtor in his
evidence admitted of replacement of the entire roof by
converting into Mangalore tiles. He also admitted of
replacement of door which is clearly in violation of the
injunction order. Mr. Sawant would submit that the matter is
going on since long and orders passed by the Executing Court
needs no interference since the Judgement Debtors are not
obeying the orders passed in the Civil Suit injuncting them
from carrying out repairs.
CRA.01.2011
15. Rival contention fall for consideration.
16. Though a detailed inquiry was conducted by the
Executing Court by recording evidence, the suit filed before
the Trial Court clearly described what is the suit property.
Paragraph No. 3 of the plaint shows that the suit property is a
structure bearing Village Panchayat No. 53 existing in survey
no. 1/2 and near to the road leading from Zambhaulim to
Rivona. Such a structure is a small structure with mud walls
and local tiles roofing.
17. Thus, the suit structure is only a small structure bearing
Panchayat Number 53 which was earlier consisting of mud
walls and local tiles. It is also stated in the plaint that said
structure was leased to Benedito Faria from Rivona for
commercial purpose i.e. for running a Taverna on an annual
rent of Rs.50/-(Rupees Fifty only). The Defendants/
Judgement Debtors are claiming to be Legal Heirs and
occupying the said structure. It is further claimed in the suit
that the notice to vacate was issued to the defendants/
Judgement Debtors since the structure requires repairs. It
was also claimed that said Benedito tried to erect pandal at
CRA.01.2011
the rear side of the structure against which a Civil Suit
No.18/1984 was filed. The said Benedito expired on
05.03.1985 as a Bachelor. Soon after the death of Benedito,
the Defendants/ Judgement Debtors started running the
Taverna in the leased premises. Proceedings filed before the
Rent Controller for handing over vacant possession of the
leased premises on the ground that the Defendants/
Judgement Debtors were not entitled to carry out such
business as Benedito expired as a Bachelor.
18. Further pleadings show that the defendants repaired
Coconut leaves protection on the rear side and replaced the
Coconut leaves with Mangalore tiles. The Defendant also
replaced the old country tiles and put Mangalore Tiles on the
front Veranda. Such repairs were carried out without the
permission of the Plaintiffs and somewhere in June 1986.
Accordingly, the suit was filed for eviction and injunction.
19. As earlier discussed, the suit was decreed as far as
injunction is concerned thereby restraining the Judgement
Debtors from carrying out any repairs or making any
extension to the suit structure. Thus, the suit structure which
CRA.01.2011
is defined in paragraph 3 of the plaint is only one single
structure consisting of mud walls and local tiles bearing
panchayat no.53 as existing then.
20. The inquiry conducted by the Executing Court would
clearly reveal that the Plaintiff admitted that some repairs
were carried out prior to filing of the suit itself, which has been
referred in the execution proceedings. It is also brought on
record that even during the pendency of the execution
proceedings, the Judgement Debtors were permitted to
replace 13-14 rafters and some ribs, and that too with the
permission of the Plaintiff. Thus, it is clear that the suit
structure was even repaired during the pendency of the
execution proceedings by replacing the rafters of the roof.
21. It is common knowledge that while replacing rafters the
tiles existing on the roof are required to be removed. During
that process, the possibility of damage to some of the tiles also
cannot be ruled out. Thus, the contention that the Judgment
Debtors replaced the roof tiles with Mangalore tiles and that
too without the permission of the Decree Holders and
specifically by breaching the Judgment and Decree is
CRA.01.2011
doubtful. The Decree Holder also admitted that the Baguela
on the rear side was earlier consisting of Palm leaves and was
converted into Mangalore tile roofing prior to filing of the suit.
This, admission clearly goes to show that said Baguela was
repaired even prior to filing of the suit. Admittedly, the plaint
is clearly silent about existence of Baguela by the side of the
suit structure or any repairs carried out to it.
22. The second aspect is regarding the piling of some laterite
stones one over the other only for the protection of the area
and prevention of the Pigs from entering inside. Such piling
of the stones cannot be considered as carrying out any
construction or repairs. Even otherwise, said Baguela was
not the part of suit structure as defined in paragraph 3 of the
plaint and what was restrained is only the repairs against the
suit structure. Thus, anything carried out beyond the suit
structure cannot be considered as any disobedience of the
Judgement and Decree. It includes piling up of stones, repairs
of Baguela, or even, creating some protection for the water
meter on the outer wall of the Baguela.
CRA.01.2011
23. The Executing Court considered two photographs,
produced during the inquiry and found that the tiles shown
therein are new and therefore, held that Judgment Debtors
repaired such roof without taking permission.
24. The proceedings are filed for disobedience of the order
and the consequences are severe. Therefore, the burden to
prove is heavily on the Decree Holder. It is also settled
proposition of law that sending Judgement Debtor for civil
imprisonment should be the last resort as it involves
curtailment of personal liberty. For that purpose, the evidence
must be clinching. Only because two photographs are
produced inference cannot be drawn that the tiles seen in such
photographs appears to be new tiles, specifically when the
Decree Holder during cross examination admitted that 14-15
rafters of the roof were replaced with his permission. While
replacing such rafters, replacing damaged tiles is a must so as
to protect the structure.
25. The observations of the learned Executing Court in that
regard needs to be considered as perverse and suffering from
CRA.01.2011
conjectures and surmises. The evidence clearly shows
otherwise.
26. Apart from it, the learned Executing Court directed the
Judgment Debtors to remove the mud bricks piled one over
the other which were placed near the western Baguela and
also to remove the pedestral or the meter structure and put
the pot tiles on the roof of the main structure by removing
existing Mangalore tiles but excluding Mangalore tiles on the
veranda and the rear portion, appears to be an order without
support of any such evidence. It is difficult to identify each
and every tile over the roof whether it was existing or
replaced. Such a course to my mind is practically impossible
to perform and that too after 7 years from the date of filing of
the execution proceedings.
27. Apart from it, the western Baguela was not described as
a suit structure in the suit, and thus, no orders could have
been passed with regard to such a western Baguela. The
meter structure is required for the purpose of protecting the
water meter and for that purpose the Judgement Debtors
cannot be directed to remove it. Such protection is necessary
CRA.01.2011
as per the Rules and Regulations framed by the Department
while allotting the meter.
28. There is absolutely no justification as to why there is a
need to send the Judgement Debtor No.1 to civil
imprisonment for a period of 30 days as found mentioned in
paragraph 27 though it is not reflecting in the operative part
of the order. As I have already stated that civil imprisonment
should be the last resort.
29. Mr. Sardessai would submit that during the pendency of
the present proceedings and as directed by this Court dated
19.01.2012, the Applicants are depositing an amount of
Rs.7500/- every 3 months. He would submit that out of such
amount, some amount could be transferred to the
Respondent/Decree Holder by way of compensation.
30. Without prejudice to the rights of the parties and the
order which is passed in the present matter, some amount
could be handed over to the Respondents/Decree Holders.
However, it is made clear that the impugned order requires
interference.
CRA.01.2011
31. For all the above reasons, the impugned order is quashed
and set aside. The revision application stands allowed. Out of
the amount deposited in this Court from time to time an
amount of Rs.50,000/- (Rupees Fifty Thousand only) shall be
paid to the Decree Holders whereas the remaining amount
shall be refunded to the Applicants.
BHARAT P. DESHPANDE, J.
