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Judgment
R.M.S. Khandeparkar, J.—This Revision Application arises from Order dated 23rd October, 1997 passed in Regular Civil Suit No. 98 of 1973 by the Civil Judge, Senior Division, Margao. By the impugned Order, the Trial Court has dismissed the application for amendment filed by the Petitioners.
By an application dated 5th March, 1997, the Petitioners, who are the Defendants in the said civil suit, sought to amend the written statement by introducing the following pleadings:
With still further reference to the plaint as a whole, these defendants claim mundkarship in respect of the suit premises in terms of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 as defined under Clause "p" of Section 2 of the said Act.
The defendants further submit that the suit is liable to be transferred to the Mamlatdar of Selected in terms of Section 13 of the said Act.
In the original pleadings in the written statement which was filed sometime in July, 1973, the Petitioners/Defendants had stated that they admit that the property belongs to the Respondents/Plaintiffs, however, they had further stated that the Petitioners/Defendants reside in the suit house constructed by one Datta Borkar, the husband and father of Defendants Nos. 1 and 2, respectively, and that the Defendants had been and are residing in the said property as the mundkars.
The Trial Court has rejected the proposed amendment by the impugned Order on two grounds, firstly, on the ground that the issue regarding the claim of mundkarship raised by the Petitioners has already been decided in terms of the provisions contained in the Goa, Daman and Diu (Protection from Eviction of Mundkars, Agricultural Labourers and Village Artisans) Act, 1971 (hereinafter called as ''the Act of 1971''); and secondly, that the provisions of Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975 (hereinafter called ''the said Act'') are not applicable as the eviction proceedings were filed in the year 1973 prior to the enforcement of the said Act.
The contention of the Petitioners is that during the pendency of the civil suit wherein the Petitioners had claimed to be mundkars in respect of the suit house, the said Act came into force and in terms of Section 13 thereof, the Civil Court ceased to have jurisdiction to proceed with the matter and it was required to transfer the entire proceedings to the Mamlatdar to decide the claim of the mundkarship by the Petitioners in terms of provisions of the said Act and that the same was sought to be brought to the notice by way of amendment to the written statement and in that view of the matter, the Trial Court erred in dismissing the application for amendment. As against this, the contention of the Respondents is that the proposed amendment was sought to be introduced after a lapse of 24 years from the date of filing the suit and, therefore, belated and grant thereof will amount to taking away the vested right which has already accrued in favour of the Respondents and that in view of the decision of this Court in Writ Petition Nos. 194 of 1990 and 18 of 1994, between the same parties in relation to the subject-matter of the suit, the Petitioners are not entitled to raise the issue of mundkarship under the said Act. The Respondent has sought to rely upon the judgment of the learned Single Judge in the said Writ Petition No. 194 of 1990 as well as decision of the Division Bench of this Court in the matter of Joseph Almeida and Anr. v. Krishnanath Narayan Prabhu and 3 Ors. 1990 (1) G.L.T. 251 , in support of the said contentions.
As already observed above, the plea of mundkarship was already raised by the Petitioners in the original written statement filed by them in the year 1973 itself. What is really sought to be introduced by the Petitioners in their pleadings by way of amendment is the plea regarding lack of jurisdiction of Civil Court to proceed with the matter without complying with the provisions contained in Section 13 of the said Act.
The undisputed fact in the case in hand is that the suit was filed in the year 1973 and the written statement of the Defendants/Petitioners was also filed in the year 1973 itself, raising therein the plea of mundkarship while defending in the suit. It is also undisputed fact that the suit was pending for disposal before the Civil Court on 12.3.1976 which was the appointed date under the said Act.
In the background of these facts, the provisions of Section 13 are clearly attracted. The Section 13 of the said Act reads thus:
Transfer of pending suit or other proceedings for eviction.-
(1) All suits, appeals, proceedings in execution of decree or order and other proceedings for the eviction of a mundkar or a person who has therein claimed to be a mundkar or for the curtailment or for the non-enjoyment of any right mentioned in Sub-section (1) of Section 6, pending in any Court, on the appointed date, shall be transferred to the Mamlatdar within whose jurisdiction the dwelling house, from which the eviction is sought, is situated.
(2) The Mamlatdar, to whom a suit, appeal, proceeding in execution or other proceeding is so transferred under Sub-section (1), shall enquire into and first decide the question whether the person to be evicted is a mundkar or not and if his decision is that such person is not a mundkar, the suit, appeal, proceeding in execution or other proceeding shall be re-transferred to the Court from which it was transferred to the Mamlatdar.
(3) If the Mamlatdar decides that the person to be evicted is a mundkar, he shall declare the suit to abate and direct the bhatkar to make a fresh application under this Act, if the bhatkar so desires.
In the case in hand, we are concerned with only the first eventuality mentioned in the above quoted section, i.e. "a suit for eviction of a person who has therein claimed to be a mundkar pending on the appointed date" and not relating to other instances like the suit for non-enjoyment or curtailment of mundkarlal rights enumerated u/s 6 of the said Act. On plain reading of the said Section 13, it is evident that all the suits which were pending before the Civil Courts on 12th March, 1976 and wherein the plea of mundkarship was raised, were required to be transferred to the Mamlatdar of respective talukas and the jurisdiction of the Civil Courts to deal with such suits was barred unless and until the Mamlatdar first decides the concerned person to be not a mundkar and retransfers the proceedings to the Civil Courts. In the case in hand, undisputedly the plea of mundkarship was already raised and the same was pending before the Civil Court on the appointed date. Shri A.N.S. Nadkarni, learned Advocate for the Respondents, did try to submit that the plea of mundkarship u/s 13 has necessarily to be plea under the said Act and not under the Act of 1971. This submission, however, cannot be accepted. In cases where plea of mundkarship is raised under the said Act, the provisions which are attracted are contained in Section 32(1) of the said Act and not those in Section 13 of the said Act. A perusal of the Section 32(1) of the said Act discloses that if any suit is instituted in any Civil Court which involves an issue which is required to be dealt with and decided by the Mamlatdar under the said Act, then the Civil Court has to stay the suit and refer the issue to Mamlatdar for his determination. Section 32(2) provides that on receipt of such reference from the Civil Court, the Mamlatdar shall deal with and decide such issue in accordance with the provisions of the said Act and shall communicate the decision to the Civil Court and thereupon the Civil Court shall decide the suit in accordance with the provisions applicable to the Civil Courts. Therefore, it is clear that in a suit where the plea of mundkarship is raised in terms of provisions of the said Act, the issue will have to be referred to the Mamlatdar in terms of Section 32(1). But in cases which were pending on the appointed date wherein the plea of mundkarship was already raised, are required to be dealt with in terms of the provisions contained in Section 13 of the said Act.
Shri Nadkarni then sought to rely upon the decision of the Division Bench in the matter of Joseph Almeida and Anr. v. Krishnanath Narayan Prabhu and 3 Ors. (supra) and submitted that the rights and liabilities of the parties in the proceedings pending under the Act of 1971 are governed by the provisions of Act of 1971 and the provisions of the said Act are not applicable to such cases. On proper reading of the said decision, it is evident that the said decision does not lay down any such proposition of law. In fact, the said decision was given in the facts and circumstances of that particular case wherein the Division Bench itself has held thus:
Admittedly in the present case respondent No. 1 has relied on the contents of Explanation to Section 2(p) of the new Act to qualify himself as a Mundkar and all the Courts below right from the Mamlatdar to the learned Single Judge have given him declaration that he is a Mundkar on the basis of the said Explanation. Though it is true that a second application claiming his right under the said Explanation will not be barred, the fact remains that in the application filed by him on February 23, 1972, from which the present proceedings have arisen, it was not open for him to avail of the Explanation. Hence the declaration made in his favour in the present proceedings will have to be set aside.
(Emphasis supplied)
That was a case where the Mamlatdar while dealing with the matter arising under the Act of 1971, had decided the same in terms of the provisions of the said Act and the observations by the Division Bench were made in the said context. Hence the said decision is of no assistance in the case in hand and to decide the issue sought to be raised in this matter.
Shri Nadkarni then drew my attention to the decision of the learned Single Judge in Writ Petition No. 194 of 1990 between the parties to these proceedings itself. Undisputedly, the said decision is based on the decision of the Division Bench in the matter of Joseph Almeida and Anr. v. Krishnanath Narayan Prabhu and 3 Ors. (supra), Moreover, the fact remains that the said decision was delivered without taking into consideration the provisions contained in Section 13 of the said Act as well as the provisions contained in Section 38 of the said Act. Therefore, apparently the decision in the matter of Writ Petition No. 194 of 1990 cannot come in the way of the parties in pointing out to the Trial Court the mandate of Section 13 of the said Act. In fact, Section 13 clearly gives a mandate to the Civil Courts that in all suits '' wherein a claim of mundkarship was raised and such suits were pending before the Civil Court on the appointed date, the same were and are required to be transferred before the Mamlatdar within whose jurisdiction the dwelling house from where the eviction is sought, is situated. The provisions of Section 13 are clearly mandatory in nature and it is primarily the t duty of the Civil Courts to act according to the mandate of the said Section. Failure or negligence on the part of the parties to the suit in bringing to the notice of the Court the provisions contained in the said Act cannot bestow any jurisdiction upon the Civil Court to continue with the proceedings wherein the plea of mundkarship was already raised and the proceedings were pending before the Civil Court on the appointed date.
There is no doubt, the amendment application filed by the Petitioners was filed nearly 24 years after filing the written statement. But the fact that there is delay on the part of the Petitioners in filing such application that by itself does not create any vested right in favour of the Respondents, it being abundantly clear in terms of the provisions of the said Act that it is the duty of the Civil Court to act according to the mandate of Section 13 of the said Act. Therefore the delay itself cannot be a ground to reject the application for amendment in the facts and circumstances of this particular case. Failure on the part of the Trial Court to do something which it was legally bound to do, if brought to its notice, even late, by the parties to the suit, that itself cannot be said to be a ground to reject the application for amendment. In this view of the matter, therefore, the impugned Order cannot be sustained and is liable to be set aside.
The Petition accordingly succeeds. The impugned Order is hereby quashed and set aside. The application filed by the Petitioners for amendment of the written statement is accordingly allowed. Rule is made absolute in the above terms, with no order as to costs.