1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 42 OF 2009 1. Mr. Ramchandra Namdev Volvoikar, major age, married, businessman. 2. Mrs. Roshan Ramchandra Volvoikar, major age, married, housewife. Both are residents of Porio wado, Pomburpa, Bardez, Goa. ... Petitioners versus 1. Mrs. Cristalina Pereira Major in age, married, Housewife. 2. Mr. Filipe Nere Pereira, major in age, married, service, both are residents of Palmar Wado, Pomburpa, Bardez, Goa. ... Respondents Shri S. M. Walawaikar, Advocate for the Petitioners. Shri Anthony D'Silva, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 9TH JULY, 2009. 2 ORAL ORDER Heard. 2. Challenge in this Writ Petition is to the Order dated 1-9-2008 of the learned Ad-hoc District Judge, Panaji, upholding the Order dated 5-3-2008 of the learned Civil Judge, J. D., Mapusa, by which the petitioners/defendants' defence has been struck off, they having committed contempt of the Order dated 4-12-1999. 3. Briefly stated, the petitioners/defendants appear to be the tenants of the respondents/plaintiffs and earlier a Civil Suit No.62/1980 filed by the respondents was dismissed and an appeal therefrom was also dismissed by the learned Additional District Judge, Mapusa, by Judgment dated 26-4-1999. In that Judgment there was an observation made by the learned Additional District Judge that the petitioners/defendants in terms of the lease agreement could have carried out minor repairs or additions. 4. The respondents/plaintiffs then filed R.C.S. No.141/49/B on or about 13-8-1999, and the learned trial Court on being satisfied that the petitioners/defendants were carrying out major construction activity granted an injunction in favour of the plaintiffs and further directed the bailiff to take down the measurements of the construction already undertaken and accordingly the bailiff submitted a report. 3 5. The petitioners/defendants appeared before the trial Court on 4-12-1999 and gave a solemn undertaking that they will not do any construction in the suit property till the disposal of the suit. 6. Thereafter, the plaintiffs filed an application alleging that the petitioners/defendants had carried out construction of pillars, walls to the rear portion of the house between 29-5-2000 and 5-6-2000. The Petitioners/Defendants filed a reply and in the said reply stated that the lease agreement had authorized them to carry out emergent and seasonal repairs and the suit house needed periodic repairs and so much repairs which did not at all amount to construction was done by the defendants. 7. After inquiry was conducted into the plaintiffs application for contempt, the learned trial Court after considering the evidence produced, came to the conclusion that Ramchandra/DW1 had deposed that he was given permission by the landlady to carry out seasonal repairs but the defendants had failed to produce the said permission. The learned trial Court further observed that Ramchandra/DW1 in his cross-examination had deposed that he was not informed by his advocate by any order passed by the Court and that he had not given any undertaking to the Court that he will not do any construction and that his advocate might have given the undertaking before the Court. The learned trial Court observed, and, in my view rightly, that it is settled law that an undertaking given by the advocate on behalf of his client binds the client, and therefore the 4 defendants could not say that they were not aware of the undertaking given by the Court. The learned trial Court also observed that the entire cross-examination of the said defendant revealed that the defendants had carried out the construction but they did not wish to admit before the Court so much so that the defendants did not admit their undertaking given before the Court. The learned trial Court therefore on the basis of the evidence of plaintiff's photographs produced by the plaintiff, the bailiff's report and the sketch drawn on 3-8-1999 came to the conclusion that the defendants had raised the wall, put up the pillars for doing the construction and thus there was a violation of the undertaking given to the Court. 8. The learned first appellate Court after re-assessing the evidence produced on behalf of the parties and particularly that of the said Ramchandra/DW1 came to the conclusion that the defendants had admitted in their reply that they had done repairs to the suit structure but neither the details of the repairs were disclosed before the Court nor any permission taken from the Court to carry out the said repairs when such a permission was necessary in view of the Court's Order dated 4-12-1999. 9. Shri S. M. Walawaikar, learned Counsel appearing on behalf of the petitioners/defendants submits that both the Courts below failed to take note of the Order of the learned Additional District Judge in R.C.S. No.48/1993 by which the defendants were entitled to carry out minor repairs or additions in terms of the lease agreement between the parties. Learned Counsel has further submitted that 5 the evidence of the plaintiffs shows that the plaintiffs themselves were in doubt as to when the work of construction had commenced. In any event, learned Counsel has submitted that contempt is a matter between the Court and the contemner and in that regard has submitted a written apology on behalf of the Petitioners. 10. The said apology be placed on record. 11. Shri Anthony D'Silva, learned Counsel on behalf of the respondents/plaintiffs has submitted that both the Courts below have appreciated correctly the evidence led in the inquiry and have come to the conclusion that the petitioners/defendants had committed the contempt of the Order of the trial Court dated 4-12-1999, and, therefore the evidence produced cannot be re-appreciated by this Court in writ jurisdiction either under Articles 226 or 227 of the Constitution, and in that regard has placed reliance on the decisions of the Apex Court in Ranjeet Singh v. Ravi Prakash(AIR 2004 SC 3892) wherein the Apex Court has stated, referring to its earlier decision in the case of Surya Dev Rai v. Ram Chander Rai and others((2003) 6 SCC 675) that an error which needs to be established by lengthy and complicated arguments or by indulging into a long drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. The Apex Court has further stated that if it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction , the Apex Court has stated that the jurisdiction was not available to be 6 exercised for indulging into re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like a Court of appeal. 12. Shri D'Silva has also opposed the accepting of the apology by the Petitioners at this belated stage. 13. It is certainly not the case of the petitioners/plaintiffs that the Judgment of the Additional District Judge in R.C.S. No.48/1993 was brought to the notice of the trial Court or the first appellate Court and the same Judgment is being relied upon for the first time before this Court. Even assuming by virtue of the said Judgment the petitioners/defendants were entitled to in terms of the agreement between the parties to carry out minor repairs or additions, the fact remains that the petitioners/defendants had given a solemn undertaking on 4-12-1999 before the learned trial Court that they would not carry out any construction in the suit property till the disposal of the suit. They were certainly aware of the said Judgment and could have always stated before the trial Court that they were entitled to carry out either repairs or additions. That was not their case. The plaintiffs had clearly stated in the affidavit of Mrs. Cristalina Pereira(Plaintiff No.1) that the defendants had started doing the construction in the suit property between 29-5-2000 and the same was completed on 5-6-2000 and had produced photographs of the said dates in support of their contention that the said construction was done by the petitioners as stated by them. Not only that, in the course of cross-examination she had further stated that the defendants had 7 extended further the structure after contempt application was filed. The evidence led by the plaintiffs in the light of the report of the bailiff as well as the photographs produced was more than sufficient to conclude that the construction was incomplete on the day when the undertaking was given and completed by the petitioners/defendants, in utter disregard and contempt of the Order of the Court dated 4-12-1999. If that be so, the petitioners/defendants were bound to face the consequences of that action which has been rightly taken against them by striking out their defence. In case the petitioners/defendants had any apology to offer for committing contempt, that ought to have been done at the earliest available opportunity and not at the belated stage after realizing that this Writ Petition is being dismissed. 14. Consequently, I find there is no merit in this Writ Petition, and, therefore the same is hereby dismissed. 15. Shri Walawaikar, learned Counsel on behalf of the petitioners prays for stay of operation of this Order for a period of four weeks. Prayer granted. N. A. BRITTO, J. RD