1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition No.648 of 2010. 1. Shri Agostinho Francisco Antonio de Jesus Coreia Afonso, 2. Smt. Marina de Conceicao Pinto Philips Correia Afonso both r/o House No.542, Pulvaddo, Benaulim, Salcete, Goa through their Attorney, Smt. Liberata Miranda, R/o House no.64/A, Quirbhat, Nuvem, Salcete, Goa ….Petitioners( respondent nos.1 and 2/original plaintiffs) V e r s u s 1. Shri William D'Costa through his Attorney Shri Rosaria Almeida, R/o House no.64/C, Quirbhat, Nuvem, Salcete, Goa. 2. Shri Rosario Almeida, r/o House No.T/22, Quirbhat, Nuvem, Salcete, Goa.(Applicants/Orig. Defendants nos.1 & 2) 3. Smt. Rosada Fernandes, r/o House No.64/B, Quirbhat, Nuvem, Salcete, Goa. 2 4. Smt. Josefa Almeida, r/o House no.22T, Quirbhat, Nuvem, Salcete, Goa. 5. Shri Xavier Teotonio Fernandes, r/o House No.191, Behind K.T.C. Bus Stand, Fatorda, Margao, Goa. 6. Mr. Samson Colaco, r/0 Kareaband Road, Margao, Goa. 7. Mrs. Candelina Pereira, r/o House No.34/1,Kirbhat, Nuvem, Salcete, Goa. 8. Shri Joaquim Furtado, r/o Mazilwaddo, Benaulim, Salcete, Goa. (Respondents(original defendants nos.3 to 8) … Respondents Mr. A.F. Diniz, Advocate for the Petitioners. Mr. S.S. Kakodkar, Advocate for respondent nos.1 and 2. Coram: A. P. Lavande, J. Reserved on :8/2/2011 Pronounced on: 9/3/2011. O R D E R: 1. Heard Mr. Diniz, learned counsel for the petitioner and Mr. Kakodkar, learned counsel for the 3 respondent nos. 1 and 2. 2. By this petition under Article 227 of the Constitution of India the petitioners challenge the order dated 13/8/2010 passed by the District Judge-2, Margao in Civil Miscellaneous Application no.59/2010 by which delay of 861 days in filing the appeal against the order dated 21/11/2007 has been condoned subject to payment of costs of Rs.500/- to the petitioners by respondents nos. 1 and 2. 3. Briefly the facts relating to filing of the present petition are as under: The petitioners herein filed a suit against the respondents seeking declaration that the consent decree obtained by respondents nos.1,2 and 3 in Regular Civil Suit no.17/2001/C is fraudulent null and void and without legal effects. The petitioners also sought injunction against the respondents nos.1 and 2, restraining them from interfering with 4 the suit property. The petitioners also sought mandatory injunction. By order dated 7/3/2004 passed by the Trial Court, respondents nos. 1 to 4 were directed to maintain status quo in respect of the suit property and not to construct any road and not to alienate or transfer the suit property till further orders. On 2/4/2004 respondents nos. 1 and 2 filed their written statement and the reply to the temporary injunction application. It is the case of the petitioners that in violation of the order passed by the Trial Court, respondent no.2 as Attorney of respondent no.1 executed sale deeds dated 21/3/2005 and 21/4/2005 in respect of the plots forming part of the suit property. On 25/8/2005 the petitioners filed application under Order 39 Rule 2-A and 11, r/w Section 151 of C.P.C. against respondents nos.1 and 2. The Bailiff of the Court reported on 12/6/2006 that respondent no.2 had refused to accept the notice on the ground that his father's name was wrongly mentioned in the notice. By order dated 21/11/2007, the Trial Court held that respondent nos.1 and 2 had disobeyed order dated 7/3/2004 and 5 consequently ordered their detention in civil prison for 20 days and that their defence was struck off. 4. On 3/4/2008, respondents nos.1 and 2 filed application seeking recall of the order dated 21/11/2007 and also warrant of arrest. They also sought an interim stay of the warrant of arrest. By order dated 27/11/2009, the Trial Court rejected the said application. Against the said order, respondent nos.1 and 2 filed Writ petition no.841/2009 which was disposed of by order dated 10/2/2010 directing the Trial Court to decide the application for recall by 29/2/2010, if not so decided. By order dated 24/2/2010, the Trial Court dismissed the said application against which the respondents nos.1 and 2 filed Writ petition No.210/2010. 5. On 21/4/2010, this Court dismissed the writ petition holding that an appeal was provided against the order of the trial court and the respondents were at liberty to file such 6 appeal subject to limitation. On 6/5/2010, the respondent nos.1 and 2 filed appeal before the District Judge, South Goa, Margao along with an application bearing no. MCA no.59/2010 seeking condonation of delay. The petitioners opposed the said application. By the impugned order dated 13/8/2010, the District Court allowed the application for condonation subject to payment of costs of Rs.500/-. The petitioners then filed the present petition challenging the said order. 6. Mr. Diniz, learned counsel appearing for the petitioners submitted that the Appellate Court has not exercised jurisdiction in accordance with law while condoning the delay in filing the appeal. According to Mr. Diniz respondent nos.1 and 2 were very much aware of the order dated 21/11/2007 and as such, the Appellate Court has no jurisdiction to condone the delay which was inordinate. According to Mr. Diniz, respondent no.2 had refused to accept the notice on the ground that his father's name was not correctly recorded which was not 7 factually correct and, as such, the respondent no.2 is deemed to have been served in June 2006 itself and as such, the application for condonation filed in 2010 was hopelessly barred by limitation and was filed without any sufficient cause for condonation of delay. According to Mr. Diniz the respondent no.2 had not filed proper affidavit in support of the application for condonation of delay and his conduct clearly disentitles the respondents from seeking condonation of delay. According to Mr. Diniz the Appellate Court has not considered the correct principles governing condonation of delay in filing the appeal and, as such, has erred in condoning the delay. 7. In support of his submissions, Mr. Diniz has relied upon the following judgments: I) State of Punjab and ors.Vs. G.S. Gill and anr.,1997 (6 ) SCC 129. II) Ram Bhawan Singh and ors. , Vs. Jagdish & ors.,1990 (4) SCC 309. 8 III) Sunil Poddar & Ors. Vs. Union Bank of India,2008 SAR (Civil) 224. IV) Pramila Dinkarrao Tathe & Ors Vs. Shantabai @ Shalinibai Ramkrishna alias Bhaurao Tathe & ors. 2008 (Supp) BCR 286 V) Balwant Singh (dead) Vs. Jagdish Singh and ors. 2010 (8) SCC 685. 8. Per contra, Mr. Kakodkar,learned counsel appearing for respondents nos.1 and 2 submitted that respondent no.2 was not duly served in the proceeding under Order 39 Rule 2A and he came to know about the said proceedings only on 6/3/2008. According to Mr. Kakodkar the advocate appearing for respondent nos. 1 and 2 had withdrawn his appearance in September, 2006 and as such, he was not represented in the proceeding for disobedience of the order. According to Mr. Kakodkar serious prejudice would be caused to the respondent nos.1 and 2 in case the impugned order is set aside in as much 9 as the respondents would have to undergo detention in civil prison without having an opportunity for defending themselves. According to Mr. Kakodkar the appellate Court has correctly exercised jurisdiction in condoning the delay in as much as the major part of the delay has been caused on account of the advice given by advocate appearing for respondent nos.1 and 2, on account of which respondent nos.1 and 2 pursued wrong remedies. According to Mr. Kakdokar Sections 5 and 14 of the Limitation Act are clearly attracted in the present case and therefore no case has been made out for interference with the impugned order. Mr. Kakodkar fairly conceded that the cost of Rs.500/- awarded by the trial Court are inadequate and submitted that the impugned order be maintained by awarding reasonable costs. In support of his submissions Mr. Kakodkar relied upon the following judgments. I) N. Balkrishnan Vs. M. Krishna Murthy,AIR 1998 SC 3222. II) M/s Shakti Tubes Ltd. Vs. State of Bihar and ors., AIR 2009 SC 1200. III) Jai Singh and ors. Vs. Municipal Corporation of Delhi and anr.,2010 (9) SCC 385. 10 IV) Shalini Shyam Shetty and anr. Vs. Rajendra Shankar Patil, 2010 (8) SCC 329. 9. I have carefully considered the rival submissions of the parties, perused the record and judgments relied upon by both sides. 10. This petition is essentially a petition under Article 227 of the Constitution of India. In the case of Mohd. Yunus Vs. Mohd. Mustaqim and ors. AIR 1984 SC 38 the Apex Court in paragraph 7 held thus: “ 7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited to seeing that an inferior Court or Tribunal functions within the limits of its authority” and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High 11 Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision.” 11. In the present case the appellants have filed the appeal against the order dated 21/11/2007 by which the trial Court has ordered detention of respondent no.1 and 2 in civil prison and further directed that defence of respondents nos.1 and 2 be struck of. Admittedly, respondent nos.1 and 2 resorted to several proceedings before filing the appeal along with application for condonation of delay challenging the said order. No doubt the respondents nos. 1 and 2 had resorted to wrong remedies by first filing application for recall and thereafter filing two writ petitions in the High Court. However, the fact remains that respondent nos.1 and 2 have pursued remedies against the said order which according to the respondent nos.1 and 2 were upon the advice of their advocate. 12. If the impugned order is set aside, the necessary 12 consequences would be that the respondent nos.1 and 2 will have to suffer detention in civil prison for a period of 20 days and their defence in the suit would be struck off. Therefore, in my considered opinion this is not a fit case in which this Court should exercise supervisory jurisdiction under Article 227 of the Constitution of India which is to be exercised to advance the cause of justice. No doubt, the respondent nos.1 and 2 before filing the appeal and application for condonation of delay have pursued wrong remedies, unnecessarily dragging the petitioners in the proceedings which were not maintainable. Moreover, the application filed under Order 39 R 2A and R11 was decided ex parte. Therefore, in my considered opinion interest of justice would be served if the order is maintained and the petitioners are adequately compensated. Mr. Kakodkar has also rightly conceded that the costs awarded by the Appellate Court are quite meager. In my considered opinion interest of justice would be served by maintaining order and awarding substantial costs in favour of the petitioners for dragging them in 13 proceedings which were not maintainable. Having regard to the proceedings resorted to by respondent nos.1 and 2 against the petitioners before filing the appeal along with the application for condonation of delay, I am of the considered opinion that the petitioners/original plaintiffs are entitled to substantial costs. Accordingly the impugned order is maintained subject to the respondents nos.1 and 2 paying costs of Rs.20,000/- (Rupees twenty thousand only) to the applicants instead of Rs.500/-, as awarded by the lower Appellate Court. The costs shall be deposited before the lower Appellate Court within a period of two weeks from today. Liberty to the petitioners to withdraw the costs after they are deposited. 13. I do not deem it necessary to refer to several authorities relied upon by both sides for the reasons stated in paragraphs 10,11 and 12 herein above. 14. Interim relief granted on 20/10/2010 stands vacated. 14 The parties to appear before the lower Appellate Court on 28th March, 2011 at 10 a.m. 15. The petition stands disposed of accordingly. A. P. Lavande, J Ap/-