IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 222 OF 2009 M/S. SUSHEELA HOMES AND PROPERTIES PVT LTD ... Petitioner Versus GOA STATE INFRASTRUCTURE DEVELOPMENT CORP LTD AND ANR., ... Respondents Mr. C. Mascarenhas, Advocate for the Petitioner. Mr. N. Vaze, Advocate for the Respondent no.1. Mr.V. Rodrigues, Addl.Government Advocate for the Respondent no.2. Coram:- A. P. LAVANDE, J. Date:- 17th July, 2009 ORAL JUDGMENT Heard, Mr. Mascarenhas, for the petitioner, Mr. Vaze for the respondent no.1 and Mr. Rodrigues for the respondent no.2. 2. Rule. By consent heard forthwith. 3. Petitioners filed Special Civil Suit No.23/2007 in the Court of District Judge, South Goa, Margao against the respondents/defendants for recovery of money which was made over to District Judge(2). 4. The defendant no.1 upon being served filed an application under Section 8(1) of the Arbitration & Conciliation of the Act, 1996 and Sections 21/20 of the Code of Civil Procedure, 1908. By the said application the defendant no.1 prayed that the suit be dismissed being without jurisdiction and the plaintiff and the defendant no.1 be referred to arbitration in terms of agreement entered between the parties. 5. Reply was filed by the plaintiff opposing the application. The Trial Court by its order dated 1.09.2008 held that the State/respondent no.2 was neither necessary nor proper party and as such, deserves to be deleted from the cause title. The Trial Court further held that since State of Goa is to be deleted from the cause title the jurisdiction to try the suit would not lie with District Court. Consequently the District Court directed return of the plaint to the plaintiff for presentation to the Court having jurisdiction to try and decide the same. 6. The plaintiff filed application dated 22.09.2008 seeking review of the said order which was opposed by the respondent no.1. By order dated 3.01.2009 the review application was dismissed. Aggrieved by both the orders plaintiff has approached this Court. 7. The main grievance of the petitioner as canvassed by Mr. Mascarenhas is that in the application for review filed by the plaintiff a specific ground was taken that the question whether defendant no.2 was a necessary party or not was not argued and a finding came to be recorded thereof without hearing the plaintiff. The respondent no.1 controverted this statement in the reply. But there is no specific finding in the order dated 3.1.2009 whether the plaintiff was heard on this aspect. According to Mr. Mascarenhas even the first order dated 1.09.2008 is patently without jurisdiction and therefore both the orders are required to be quashed. 8. Mr.Vaze appearing on behalf of the respondent no.1 and Mr.Rodrigues appearing on behalf of the respondent no.2 have supported the impugned orders. Learned Counsel submitted that the Trial Court has correctly appreciated the legal and factual position and has rightly held that defendant no.2 was neither necessary nor proper party and consequently the District Judge had no jurisdiction to entertain the suit. 9. Perusal of the application filed by the defendant no.1 discloses that the same was styled as under Section 8(1) of the Arbitration & Conciliation Act and Sections 21/20 of the Code of Civil Procedure, 1908. No doubt in the said application an averment was made that the defendant no.2 is neither necessary party nor proper party. Since the plaintiff in the application for review has averred on oath that issue as to whether the defendant no.2 was neither a necessary nor proper party was not at all argued, it was expected of the learned Judge while deciding the review application to give a finding thereon one way or the other. Perusal of the order dated 3.1.2009 discloses that no specific finding has been given by the learned Judge as to whether this point was argued or not. Since the outcome of review application would depend upon the fact as to whether plaintiff was heard on the issue as to whether defendant no.2 was a proper or necessary party it would be just and proper to set aside order dated 3.1.2009 and remit the matter back to the District Court(2) to decide the application for review afresh after hearing the parties. The learned Judge shall give a specific finding as to whether this point was argued before the Court and depending upon the said finding shall decide the application in accordance with law. 10. I do not deem it necessary to set aside the order dated 1.09.2008 at this stage. In the result, therefore, order dated 3.1.2009 passed by the District Judge(2) is quashed and set aside and the District Judge(2) is directed to decide the review application afresh after hearing the parties in terms of observations made therein. 11. Rule is made absolute in aforesaid terms with no order as to costs. A. P. LAVANDE, J. cg