1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEALS NO. 53, 54, 55, 119 & 120 OF 2006 SECOND APPEAL NO. 53/2006 Sertorio S. Facho, Panjim, Goa. .... Appellant V/s Dr. Fernando Jorge Colaso, Panjim, Goa .... Respondent WITH SECOND APPEAL NO. 54/2006 Sertorio S. Facho, Panjim, Goa. .... Appellant V/s Dr. Fernando Jorge Colaso & 6 Ors. .... Respondents WITH SECOND APPEAL NO. 55/2006 Sertorio S. Facho, Panjim, Goa. .... Appellant V/s Tarzan De Costa & 3 Ors. .... Respondents WITH SECOND APPEAL NO. 119/2006 Sertorio S. Facho, Panjim, Goa. .... Appellant V/s Dr. Fernando Jorge Colaso & 7 Ors. .... Respondents WITH SECOND APPEAL NO. 120/2006 Sertorio S. Facho, Panjim, Goa. .... Appellant V/s Mr. Tarzan De Costa, Panjim, Goa. .... Respondent Appellant in person. Ms. T. Colaso, Advocate for Respondents. CORAM : N.A. BRITTO, J. DATE : 2 nd JULY, 2008 2 ORDER : These are Second Appeals filed by the appellant against various orders of the first appellate Court. 2. The dispute was regarding a passage, passing through Chalta No. 26 and Chalta No. 137 of P.T. Sheet No. 44 of Panaji City Survey, known as Travessa de Iscadinhas, which according to the appellant/plaintiff was a public passage, while according to Ms. Dometila Pinho (since deceased and represented by her legal heirs) it was a private passage. It appears that Chalta No. 26 was recorded in the name of the said Ms. Dometila Pinho by order dated 3/10/1985 of the City Survey Inquiry Officer, after the Panaji Municipal Council through its then Head Clerk Shri Costa Frias and Dr. Fernando George Colaco, as their Advocate gave no objection for the same, also after verifying that the Directorate of Land Survey had also no objection to the same. However, as far as Chalta No. 137 was concerned, the same also came to be recorded in her favour by order dated 3/10/1985 and although the said order was later challenged by the Government, it was upheld by the appellate Authority. The said Dometila Pinho (and/or her legal heirs) obtained construction licences to construct a wall on the Northern side of Chalta No. 137 which was initially granted both by the PDA as well as the Panaji Municipal Council but after the complaint was filed by the plaintiff, the Panaji Municipal Council insisted by notice dated 18/02/1991 that the 3 said Ms. Dometila Pinho leaves an opening of 1.5 metres on the northern side of the said wall, as it was a traditional access. Thereafter the said Ms. Dometila Pinho filed RCS No. 204/92/C on 27/11/1992 claiming that she was the owner in possession of her ancestral property surveyed under Chalta No. 26, 136 & 137 of P.T. Sheet No. 44 of Panaji City Survey, and, for a declaration that the said notice dated 18/02/1991 was null and void and for a further declaration that there was no traditional access on the northern side of the suit property. The said RCS No. 204/92/C appears to have been filed by Advocate Shri Tarzan D'Costa who then was, would be son-in-law, of the family of said Ms. Dometila Pinho. 3. The appellant/plaintiff also filed a RCS No. 168/96/B (subsequently renumbered as 528/2000/B) alleging that on 2/07/1994, the said passage was closed by defendants no. 3 & 4 (in the said suit). The plaintiff had also alleged that prior to that, the said defendants had constructed a compound wall thereby narrowing the said passage and that earlier by orders dated 3/10/1985 and 16/10/1985 an area of the said passage was held by the Land Survey Officer as property of defendants no. 3 & 4 and this order was made on account of a conspiracy that was hatched between the said defendants no. 2 & 3 and defendant no.1 (Panaji Municipal Council) had joined the said conspiracy by not taking any action to prevent right to passage. It also was alleged that defendant no.1 (Panaji Municipal Council) had acted in bad faith 4 in giving no objection to record Chalta No. 26 in favour of defendant no. 3 and that in fact defendant no.2/Dr. Fernando George Colaco had appeared in another proceedings for the predecessor in title of the said Ms. Dometila Pinho. It was alleged that the said orders of 3/10/1985 and 16/10/1985 were obtained by the said defendant no. 2/Dr. Colaco and defendant no.3(a)/Tarzan De Costa in collusion and on account of the said orders, the plaintiff was prohibited from using the said passage and, therefore, sought declaration that the said passage was a public way and the said orders dated 3/10/1985 and 16/10/1985 were to be declared void. 4. Although the legal representatives of the said Dometila Pinho had taken a clear stand that the issue involved in this suit (RCS 168/96/B) was directly and substantially involved in RCS No. 204/92/C and inspite of the fact that two of the defendants were Advocates (defendants no. 2 and 3(a)), none sought stay of this suit bearing no. 168/96/B (renumbered as 528/2000/B) pending final decision of RCS No. 204/92/C and as a result of which RCS No. 168/96/B came to be decided by the learned trial Court on 30/11/2001, inter alia, holding that the plaintiff had failed to prove that the said passage was a public way. The defendant no.2 i.e. Advocate Dr. Fernando George Colaco who had raised a counter claim, succeeded in obtaining damages of Rs. 12,000/- from the plaintiff. In other words, the suit was dismissed with costs and the counter claim filed by defendant no.2 was 5 partly decreed in the said sum of Rs. 12,000/-. The appellant/plaintiff did not challenge the judgment but even complied with the same. 5. RCS No. 204/92/C came to be decreed subsequently on 17/04/2004, to some extent following the judgment in RCS No. 168/96/B as a result of which the notice dated 18/02/1991 was declared as illegal. It was further declared that there was no traditional access on the northern side of the suit property (i.e. Chalta nos. 26, 136 and 137 of PT Sheet No. 44 of Panaji City Survey) of which the plaintiff Ms. Dometila Pinho claimed that she was the owner in possession. The defendants were restrained from interfering with the said property. 6. Later, in relation to the same dispute, it appears that the appellant/plaintiff Sertorio S. Facho filed almost a dozen suits. 7. Second Appeal No. 119/2006 arises from RCS No. 78/2004 filed by the appellant. The appellant/plaintiff has submitted that this appeal be disposed off on merits. The aforesaid suit was filed by the plaintiff to seek a declaration that a judgment/decree dated 17/04/2004 in RCS No. 204/92/C was a nullity. The defendants having filed three sets of applications, for rejection of plaint, the learned trial Court by order dated 26/04/2006 proceeded to reject the plaint under Order 7 Rule 11(a) & (d), CPC directing 6 the plaintiff to pay each of the defendant no. 1/Dr. Fernando Colaco, defendant no. 2/Corporation of City of Panaji and defendant no. 4/Advocate Tarzan De Costa exemplary costs of Rs. 1,000/-. It was the case of the plaintiff that the judgment/decree dated 17/04/2004 in RCS No. 204/92/C was secured by committing fraud on the Court. The learned trial Court came to the conclusion that the findings reached in RCS No. 168/96/B (renumbered as RCS No. 528/2000/B) were based on assessment of evidence adduced by the parties and the plaintiff had failed to challenge the judgment/decree or findings given in the said suit and as such there was no cause of action for filing the said suit. The learned trial Court also found that the judgment/decree in RCS No. 168/96/B (528/2000/B) had become final and the suit would be barred by the principles of res-judicata. The plaintiff had contended that the judgment/decree in RCS No. 204/92/C was a nullity since it was based on the judgment/decree in RCS No. 528/2000/B which was obtained by exercising fraud. The learned first appellate Court observed that the plaintiff had also instituted RCS No. 321/04 for declaration that the judgment/decree in RCS No. 168/96/B (528/2000/B) is a nullity since it was obtained by fraud but by judgment/decree dated 24/05/2004 the said suit was dismissed and the dismissal had become final. The first appellate Court held as follows: “The plaintiff has, in this suit also pleaded the facts that constitute according to him a fraud on the court. Since, it has already been held in C.S. No. 321/04 that these facts do not constitute fraud and said suit is also between the same parties 7 said finding is binding on the parties. Even otherwise, for the same reasons discussed in para 14 of the said judgment the facts pleaded by the plaintiff do not amount to practicing fraud on the court. Once it is held that the plaint does not disclose facts that would amount to practicing fraud on the court the consequence will be that the plaint will not disclose any cause of action. According to the plaintiff, the judgment and decree in C.S. No. 204/92/C was based on the judgment and decree in C.S. No. 528/00/B; that said judgment and decree in C.S. No. 528/00/B was a result of fraud on the court and, therefore, is a nullity and consequently, the judgment and decree in C.S. No. 204/92/C is a nullity. As discussed herein above the court had already decided that the judgment and decree in C.S. No. 528/00 is not a nullity. The result will be the judgment and decree in C.S. No. 204/92 which according to the plaintiff is based on the decree in C.S. No. 528/2000/B, will also not be a nullity. According to the plaintiff the judgment and decree in C.S. No.204/92/C is a nullity since it is based on the judgment and decree in C.S. No. 528/2000/B which is obtained by exercise of fraud. The plaintiff, therefore, will have to first get a decree that judgment and decree in C.S. No. 528/00/B is a nullity. Plaintiff has already failed in the suit filed to get said relief. The plaintiff, therefore, is agitating on the said issue in this suit. Once it is held that plaintiff is not entitled to agitate the issue in respect of nullity of the decree in C.S. No. 528/00/B there will be no cause of action in favour of the plaintiff in respect to the decree in C.S. No. 204/92/C. Looking at it in any angle, therefore, it will have to be held that the plaint does not disclose any cause of action. Point 'a' is, therefore, answered in the affirmative.” 8. It is also interesting to note that RCS No. 168/96/B (renumbered as 528/2000/B) was also filed by the plaintiff on the allegation that the orders dated 3/10/1985 and 16/10/1985, showing the area of the said passage as property of defendant no. 3(Mr. Ernesto A. D'Souza) and defendant no. 4(Mrs. Maria Silvia Pinho was on account of a conspiracy that was hatched between defendant no. 2/Dr. Fernando George Colaco and defendant no. 3/Mr. Ernesto D'Souza and defendant no.1 (Panaji Municipal Council) had 8 also joined the said conspiracy by not taking any action to prevent the right to said passage. In other words, the allegation in RCS No. 78/04/D was that the judgment/decree dated 17/04/2004 in RCS No. 204/92/B was secured by committing fraud. The plea of fraud or conspiracy which the plaintiff alleged in RCS No. 168/96/B (renumbered as 528/2000/B) was held against the plaintiff by judgment dated 30/11/2001 and as already stated to a great extent based on this judgment that RCS No. 204/92/C was decreed in favour of the said Pinhos. Being so, the plaintiff would not have been entitled to reopen the same issue of fraud in another suit. Looked in that light also, there is no substantial question of law involved in this Second Appeal and therefor the same is hereby dismissed. 9. A grievance was made by the plaintiff that the Presiding Officer who decided RCS No. 168/96/B and RCA No. 37/2006 is one and the same. However, it does not appear that this point was raised by the plaintiff before the first appellate Court who decided RCA No. 37/2006. Moreover, the order dated 26/04/2006 in RSS No. 78/04/D was passed by another Presiding Officer who was not the Presiding Officer who decided RCA No. 37/2006. 10. Second Appeal No. 120/2006 – This arises from suit RCS No. 7/03/C filed by the plaintiff against 9 Advocate Shri Tarzan De Costa only for a declaration which reads as follows: This Honourable Court may be pleased to declare on 24.7.2003 defendant gave reply as Advocate of Plaintiff in Suit No. 204/92/C with false information that documents issued on 9.4.2002 and 11.4.2002 were used and appreciated in Suit No. 168/96/B (new 528/00/B) ended on 30.11.2001. Declaration is meant for use before Bar Council to take action against defendant as Officer of Court. 11. The plaint came to be rejected by order dated 3/07/2004. RCA No. 36/2006 came to be dismissed on 8/08/2006 observing that: Admittedly, the plaintiff had earlier filed a suit for obtaining similar declaration which was registered as 74/03/C. The plaintiff has already averred that said suit was dismissed. The grievance of the plaintiff is that the issue of the defendant giving false information has remained un-adjudicated on account of said dismissal and, therefore, he has instituted the present suit. The plaintiff, however, has not produced the order of dismissal in said suit. The fact, however, remains that the plaintiff had instituted the suit for same relief and the same was dismissed. Approaching the Court again for similar relief may not amount to res-judicata but is sheer abuse of process of Court. The plaint is, therefore, liable to be rejected on this sole ground. It is obvious that the plaintiff is trying to give life to a lost cause and in the process has been involving the defendant into unnecessary litigation. 12. No substantial questions of law arise in this Second Appeal and therefor the same is hereby dismissed. 13. Second Appeals No. 53, 54 & 55/2006 :– 10 As regards these appeals and also second appeal no. 120/2006 the plaintiff has submitted that the plaintiff does not wish to proceed with the same. At the same time, the plaintiff has stated that he is not withdrawing the same. By his application dated 28/03/2007, the plaintiff has stated that Second Appeals no. 53, 55 & 120/2006 were filed to avoid complications and the matter was common only in Second Appeal No. 54/2006 and 119/2006 which are intended to be prosecuted by him. A perusal of second appeal nos.53, 54 & 55 of 2006, I find that the same are filed against common order in RCA nos. 104/2005, 105/2005 and 107/2005 which arises from RCS No. 53/2004, 56/2004 and 70/2004. In case the plaintiff is not proceeding with the said three appeals there is but no option to dismiss the same. On perusal of the common judgment of the first appellate Court dated 13/01/2006, it can be seen that the same pertains to the said Civil Suit no. 168/96/B with the allegation that the defendants had committed torts and made false claims and raised false defences; that they got the plaintiff's suit dismissed on the basis of false defences, claims and contentions which were false to the knowledge of the defendants; entitled the plaintiffs to damages of Rs. 1,000/-; that defendants no. 2 & 3 opposed the said claim of the plaintiffs on false defences which were negatived by the Court in judgment dated 17/04/2004 etc. Needless to say there is no merit in these Second Appeals. Admittedly, the plaintiff did nothing with judgment/decree in RCS No. 168/96/B (renumbered as 528/2000/B) which became final and not only that the 11 plaintiff complied with the said decree but only instead of challenging the same in appeal, chose only to file separate claims on one pretext or the other and his suits were rightly rejected by the Courts below. There is no merit in these appeals as well. Consequently, all the above appeals are hereby dismissed. N.A. BRITTO, J. NH/-