1 IN THE HIGH COURT OF BOMBAY AT GOA Second Appeal No.10 of 2001 1. K. Devdas Pai, Chartered Accountant, Velho Buidling, 4th floor, Panaji-Goa. 2. Samiro Coutinho, A-1, Naveketan Housing colony, Near Municipal Hospital, Panaji-Goa. ..... Appellants V e r s u s 1. Shri Prakash Yeshwant Mainkar, son of Yeshwant Mainkar, Contractor and Builder, residing at Chikli, Covale, Bardez, Goa, and carrying on business at P.M. Constructions, C/o Mohini Tiles, Opp. Municipal Garden, Panaji-Goa. 2. Shri Alvaro Jose Teofilo Pinto, son of late Jose Floriano, Macario pinto, of full age, and landlord, residing at St. Cruz, Ilhas, Goa. 3. Smt. Maria Teresa Petronila de Fatima Mascarenhas e Pinto wife of Shri Alvaro Jose Teofilo Pinto, of full age, housewife, residing at St.Cruz, Ilhas, Goa. .... Respondents. Mr. Benny Fernandes, Advocate for the Appellants. Ms. N. Pimenta, Advocate for the Respondents. 2 Coram: F.M. Reis, J. Date: 9th July, 2010. ORAL JUDGMENT: This second appeal challenged the judgment passed by the Courts below whereby the civil suit filed by the appellant came to be dismissed. The suit was filed by the appellants on the ground that there is a property at St. Inez, Panaji bearing survey no.77 of P.T. Sheet no.78 admeasuring 4040 square metres which belongs to the respondents no.2 and 3. It is the contention of the appellants that by agreement dated 31.3.1979, the respondent no.1 agreed to purchase th suit property from the respondent no.2 and 3 for development and construction of a building. Various agreements were entered into by the Respondent no.1 in respect of the flats constructed in the building put up in the said property. It is further his contention that the project was commenced without due permission from the Panaji Municipal Council and that the respondent no.1 was supposed to deliver the possession of the flats within 18 months and obtain No Objection Certificate from the Municipal Council. It is further their contention that the Respondent no.1 had modified the plans 3 without sanction and that the appellants had performed their part of the agreement and always were ready to perform their part but the respondent no.1 had committed breach of the said agreement. The Appellants further contend that the Respondent no.1 has exceeded the coverage and violated the express conditions of the licence by not providing puca approach road etc. In view of the said breaches and violations committed by the respondent no.1, as stated in the plaint the suit was filed to direct the respondent no.1 to construct the 'Pucca” road duly tarred giving access to the building in the suit property and also construct water drains in the suit property to enable the free flow of drain water and the rain water. The appellants also sought to restrain the respondents from carrying out construction of any further building in the suit property. 2. The Respondent no.1 filed the written statement and disputed the claim of the appellants. The Respondent no.1 admits that he has agreed to sell flats to different persons including the Appellants. It is his contention that the appellants were defaulters and did not pay the installments as agreed and that they had forcibly entered into possession of the flats even before the possession was made over by the respondent no.1. He further 4 stated that 12 flats in the said project still belongs to the respondent no.1 as the project is not complete and they have to be constructed. As such, it is his contention that the suit has no basis and deserves to be dismissed. After the issues were framed and findings were recored the learned trial Judge by judgment dated 6.8.1999 dismissed the suit filed by the appellant. Being aggrieved by the said judgment and decree, an appeal was preferred by the appellant before the learned Additional District Judge at Panaji, being Regular Civil Appeal no.87/99, which by judgment dated 20.9.2000 came to be dismissed. Being aggrieved by the judgments passed by the courts below, the present appeal has been preferred by the appellant. At the time of admitting the above appeal no substantial questions of law had been framed. As such both the learned counsel were called upon to address about the framing of substantial questions of law to be considered in the present appeal. After hearing both the counsel the following substantial questions of law were framed: a) Whether the findings of the Courts below are perverse for not considering the Report of the expert? b) Whether the Trial Court could decide the suit on the basis 5 of the affidavit evidence, though the suit was proceeding ex- parte against the Respondents. 3. The learned counsel appearing for the Appellants submitted that no legal evidence was allowed to be produced and as such the impugned judgment is vitiated. He further submitted that the courts below have failed to appreciate the evidence especially the Expert Report and the breaches committed by the respondents and,as such, the finding of the courts below cannot be sustained and are not in accordance with law. He further submitted that the Appellants are entitled for the specific performance of the agreement and that the Respondent no.1 has committed a breach of the said agreement. 4. The learned trial Judge while disposing of the suit of the appellant came to the conclusion that the appellant had failed to prove that the respondent no.1 had put up the construction of the building in contravention of the plans approved by the Panaji Municipal Council and in total variation of the building rules and regulations, as claimed by them. The learned Judge also came to the conclusion that the appellant had failed to establish that the respondent no.1 had extended the construction in breach of the 6 statutory regulations. The learned Judge found that the Report of the Engineer was only a xerox copy which could not be read in evidence and that the Engineer was not examined. The learned Judge further noted that the occupancy certificate was already issued to the Respondent. The learned Judge also came to the conclusion that the appellant had failed to prove that the drains leveling of the ground and water proofing on the terrace were not executed by the respondent no.1. The learned Judge further held that the Appellants were not entitled for a direction to form the Society as such obligation had not been established nor the construction of all the flats completed and that the payments of installments was defaulted by some purchasers. The said findings have been arrived by the learned trial Judge after the evidence adduced by the appellant was duly appreciated and considered. 5. The learned Additional District Judge while disposing of R.C.A No.87/99 has confirmed the said findings of the learned trial Judge and held that the appellant has miserably failed to establish that there were any deviations in the approved plans made by the respondent no.1. The learned Appellate Judge further came to the conclusion that the appellants have failed to establish their 7 case and therefore dismissed the said appeal. The learned Judge also held that the appeal against the Municipal Council was not maintainable. The learned Judge further found that the Appellate himself had sought leave to file affidavit evidence. The learned Judge further held that the affidavit traversed beyond the pleadings. No evidence was brought by the Appellant to demonstrate any interference in the open space. As such, the appeal was dismissed. 6. Dealing with the first substantial question of law, I find that as the report of the expert was not exhibited nor proved as the Engineer was not examined, there is no infirmity committed by the courts below in refusing to consider the said report. The courts below have concurrently held that the Appellants have failed to establish any contravention of the statute. Admittedly, the occupancy certificate has already been issued and the same has not been shown to be improper. The learned Counsel for the Appellant was unable to point out that any evidence was not considered by the Courts below whilst passing the impugned judgments. As such no fault can be found for non consideration of the said Report as the contents thereof were not proved. 7. Dealing with the next substantial questions of law, it is 8 evident that the appellant himself has filed the affidavit before the learned trial judge for considering his case after seeking such leave. There is no bar for the trial court to permit the appellant to file an affidavit in support of their case, as the respondents were proceeded ex parte. The learned trial Judge considered the factual evidence adduced by the Appellant and found no material in support of their contention. The Courts below have found that the Appellants have also failed to establish that the Respondent no.1 had committed any breaches of the agreement. There is no prayer for any specific performance of the agreement. The courts below have also found that the Appellants failed to bring forward any material to show that water proofing of the terrace or levelling of the ground was not completed. The learned counsel for the Appellants failed to point out any perversity in the findings of the Courts below or that any legal evidence was not considered. These concurrent findings of fact cannot be interfered with in a second appeal under Section 100 of the Civil Procedure Code. This Court cannot re-appreciate the evidence in a second appeal to come to any contrary finding unless any perversity is shown in the findings of the Courts below. The substantial questions of law are answered 9 accordingly. There is no merit in the appeal and as such, the same stands dismissed, with no order as to costs. F. M. Reis, J. ap/-