… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.17 OF 2003 1. Smt. Laura Alfonso Fernandes, widow of late Andre Flaviano Fernandes, aged 69 years, housewife, residing at Corlim, Molar, Ilhas, Goa 2. Smt. Milena Fernandes Dias, d/o late Andre Flaviano Dias, major age, housewife, 3. Shri Bonaficio Dias, s/o late Luis Rosario Dias, Major age, married, service, Both Defendants no.2 and 3 Residing at Housing Board Colony, Porvorim, Bardez, Goa. .. Appellants Vs. 1. Smt. Maria Associano Quiteria Santiago, (deceased) residing at Escrivao Waddo, Candolim, Bardez, Goa. 2. Shri Peter Francis Fernandes, major age, married, service, residing at Escrivao Waddo, Candolim, Bardez,Goa. .. Respondents Mr. V. Menezes, Advocate for the appellants. Mr. D. J. Pangam, Advocate for respondents. CORAM :- A. P. LAVANDE, J. Date : 4 th February, 2011. ORAL JUDGMENT : Heard Mr. Menezes, learned Counsel for the appellants and Mr. Pangam, learned Counsel for the … 2 … respondents. 2. By this appeal, the appellants take exception to the judgment and decree dated 13th November, 2002 passed by the Additional District Judge, Mapusa in Regular Civil Appeal No.44/2000 by which the appeal preferred by the respondents herein against the judgment and decree dated 21st January, 2000 passed by the Civil Judge, Junior Division, Mapusa partly decreeing the suit, was dismissed. However, the lower appellate Court granted additional relief of declaration sought for by the respondents / plaintiffs that they were never tenants either of the appellants herein or the predecessors. 3. The appellants in this appeal, are the original defendants and the original suit was filed by deceased respondent no.1 and respondent no.2 herein. 4. The appeal was admitted on the following substantial questions of law formulated under item nos.(i) (iii) and (iv) of paragraph 18 of the appeal memo : (a) Whether after holding that the lease deed between the original plaintiff No.1 and the defendants … 3 … was valid, the appellate Court could pass a decree inconsistent with the finding declaring the plaintiffs were never tenants either of the respondents or of their predecessors. (b) When prayer clause (c) of the plaint was a consequential relief to pray clause (a), whether the Courts below, having refused to grant prayer clause (a) could have granted the consequential relief in prayer clause (c) ? (c) Whether the Courts below committed an error in law in granting injunction in favour of the respondent no.2 although the respondent no.2 has no locus standi to file the suit or prosecute on account of having no surviving interest on the death of the original plaintiff in respect of the suit house ? 5. In the Course of hearing of the appeal, it has come to my notice that during pendency of Regular Civil Appeal No.44/2000 before the Additional District Court at Mapusa, appellant no.1 therein Maria Associana Quiteria Santiago expired and the application dated 19th July, 2000- exhibit 6 was filed on behalf of appellant no.2 – Peter francis Fernandes to bring on record Smt. Filomina Peter Fernandes, who according to appellant no.2 was legatee of deceased in … 4 … terms of Will dated 8th December, 1987 executed by deceased appellant no.1. The record further discloses that the lower appellate Court passed an order to issue notice. However, the record further discloses that actually no noticed was issued on this application and without deciding the said application, the appeal was disposed of by the lower appellate Court on merits. It is also pertinent to note that in the impugned judgment, the name of Maria Associana Quiteria Santiago, who was already deceased, figures. Therefore, it is clear that the lower appellate Court proceeded with the appeal without deciding the application dated 19th July, 2000 which was required to be decided by the lower appellate Court before taking up the appeal on merits. 6. The learned Counsel appearing for the appellants and respondents submitted that in view of the above position, the impugned judgment and decree is liable to be set aside and the matter remanded to lower appellate Court to first decide the application dated 19th July, 2000 and thereafter, Regular Civil Appeal No.44/2000 has to be decided. 7. I find that the submission made by learned Counsel appearing on behalf of both the parties deserves to be accepted since one of the appellants had expired and … 5 … without deciding the application to bring the legal representatives of appellant no.1 on record, the lower appellate Court proceeded to decide the appeal. Hence, the impugned judgment and decree is liable to be set aside and is hereby set aside and the lower appellate Court is directed to decide the application dated 19th July, 2000 after giving an opportunity of being heard to the parties. 8. In view of the above discussion, the impugned judgment and decree dated 13th November, 2002 passed by the Additional District Judge, Mapusa in Regular Civil Appeal No.44/2000 is quashed and set aside and the lower appellate Court is directed to decide the application dated 19th July, 2000 after giving opportunity of bearing heard to all the parties and thereafter, to decide the appeal in accordance with law. 9. The parties to appear before Additional District Judge, Mapusa on 28th March, 2011 at 10.00 a.m. The lower appellate Court to decide Regular Civil Appeal No.44/2000 expeditiously. 10. The appeal stands disposed of in aforesaid terms … 6 … with no order as to costs. A. P. LAVANDE, J. SMA