- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 382 OF 2011. Placido Pinto (deceased) By his legal heirs a Leandrina Pinto (expired) b Lucas Pinto, aged 58 years, c J. C. Pinto, aged 59 years; d Basilio R. X. Pereira, aged about 55 years, and his wife; e Lina Pereira, aged about 54 years; f Ursula G. Pinto, aged about 45 years; g Pervis B. Gomes, aged about 45 years; h Melita P. Gomes, aged about 38 years; i Elias I. Pinto, aged about 60 years; j Elma A. Pinto, aged about 49 years; k Flory Pinto, aged about 47 years; - 2 - l Daria Pinto, aged about 26 years; m Tricia Pinto aged about 24 years; n Kennedy Pinto, aged about 21 years; and o Evelina Pinto, aged about 47 years, All residents of Pedda, Margao, Goa. All represented in this act by their duly constituted attorney Mr. Elias I. Pinto, r/o. Pedda, Margao, Goa. …....... Petitioners. Versus 1 Joao Francisco Pinto; 2 Joanita Pinto; 3 Johny Pinto; 4 Renny Pinto; 5 Ana Quiteria Texeira; 6 Shamin Shaikh Gelal; (deceased) represented by Legal representatives a Fatima Shaikh - 3 - b Shabana Shaikh; c Salma Shaikh; d Norie Shaikh; All r/o. Ch. No.301/P. T., S 255, Pedda, Margao, Goa. 7 Durgappa Goindappa Harijan; 8 Civaca Cotro; 9 Ramoa Barapa; 10 Mahadev Bimiam Harijan; 11 Dasroto Nilova Kamble; 12 Bimlm Municipal; 13 Bagroti Hanumanta Kamble; 14 Irappa Mahesh Jamune; 15 Bacha Mulla Ucha Sab; 16 Ratna Kamble; All major in age, labourers, residing in property surveyed under Chalta No. 301, P. T. Sheet No. 255, Pedda, Margao, Goa. …..... Respondents. Mr. J. E. Coelho Pereira, Senior Advocate with Mr. V. Korgaonkar, Advocate for the petitioners. - 4 - Mr. Sudesh Usgaonkar, Advocate for the respondent nos. 1 to 4, 6(a), 6(b), 6(d), 8 to 11 and 13 to 16. CORAM :- A. P. LAVANDE, J. DATE : 30 th August, 2011. ORAL JUDGMENT : Heard Mr. J. E. Coelho Perreira, learned Senior Advocate for the petitioners and Mr. S. Usgaonkar, learned Advocate for the respondent nos. 1 to 4, 6(a), 6(b), 6(d), 8 to 11 and 13 to 16. None for the other respondents. 2. Rule. By consent heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioners take exception to the judgment and decree dated 11.2.2011 passed by the Ad-hoc District Judge, II Margao, in Regular Civil Appeal No. 403/2010 by which appeal preferred against an order dated 7.4.2011 passed by the Civil Judge, Junior Division “C” Court, Margoa, in Regular Civil Suit No. 117/2002/C has been dismissed. - 5 - 4. The petitioners are the plaintiffs in the above suit for eviction filed against the defendants/respondents. Issues in the suit were settled on 17.3.2004 and thereafter on 23.4.2004, plaintiffs filed evidence by way of affidavit. Thereafter at the instance of the plaintiffs matter was adjourned from time to time and the plaintiffs sought eleven adjournments. The matter was posted for recording of the evidence of plaintiffs on 7.4.2011 on which date the plaintiffs again sought adjournment which was refused and the trial Court dismissed the suit as well as Contempt Petition filed by the plaintiffs. 5. Against the said order plaintiffs preferred first appeal before the District Court South Goa Margao, which was made over to Ad-hoc District Judge-II, Margao bearing Regular Civil Appeal no. 403/2010. Regular Civil Appeal bearing No. 403/2010 preferred by the petitioners herein was dismissed by the lower appellate Court. Challenging the said Judgment and decree petitioners have filed present petition. - 6 - 6. Mr. C. Pereira, learned Senior Counsel on behalf of the petitioners submitted that first appeal preferred by the petitioners before the lower appellate Court against an order dated 7.4.2010 was not maintainable under any of the provisions of C.P.C. and therefore the lower appellate Court could not have passed a decree and ought to have dismissed the appeal on the ground that appeal was not maintainable although such a ground was not taken before the lower appellate Court. According to learned Senior Counsel the correct remedy for the plaintiffs against order dated 7.4.2010 was to file an application under Order 9 Rule 9 of C.P.C. According to learned Counsel the petitioners were advised by their advocate to prefer an appeal to the District Court which appeal was not maintainable and petitioners cannot be made to suffer on account of wrong legal advice given by their advocate to prefer an appeal before the District Court. Learned Counsel therefore submitted that the judgment and order dated 11.2.2011 passed by the lower appellate Court be set aside with liberty to be granted to the petitioners to seek appropriate remedy under Order 9 Rule 9 of C.P.C. - 7 - 7. Per contra, Mr. Usgaonkar, learned Advocate appearing for the respondents submitted that the petitioners having preferred an appeal before the lower appellate Court are not entitled to file Writ Petition against judgment and decree and appropriate remedy for the petitioners is to file Second Appeal. Mr. Usgaonkar fairly conceded that the appropriate remedy for the plaintiffs against an order dated 7.4.2010 was to file an application under Order 9 Rule 9 of C.P.C. 8. Having considered the rival submissions and having perused the record, I am of the considered opinion that the petition filed by petitioners under Article 227 is maintainable. First Appeal was filed by the petitioners herein against order dated 7.4.2010 passed by the trial Court was not maintainable under any of the provisions of the C.P.C. This being the position the lower appellate Court could not have entertained the First Appeal and proceeded to disposed of the appeal on merits. 9. No doubt, the objection as to the maintainability of the appeal was not raised before the first appellate Court but this fact by - 8 - itself would not confer jurisdiction on the lower appellate Court to decide the appeal on merits when it was not maintainable. In my considered view, the lower appellate Court ought to have dismissed the appeal filed by the petitioners as not maintainable. Moreover, the petitioners who have chosen to file First Appeal on legal advice cannot be made to suffer on account of wrong advice given to them by their advocate. Therefore in my considered view, impugned judgment and decree deserves to be quashed and set aside with liberty to the petitioner to avail of appropriate remedy as may be available in law. 10. It is evident that the petitioners herein chose to file First Appeal before the District Court which was not maintainable and after getting adverse order from the lower appellate Court have been compelled to approached this Court with the petition under Article 227. The petitioners by their conduct have unnecessary dragged the respondents before the District Court and before this Court by not resorting to appropriate remedy available under law. Therefore in my considered opinion, respondents deserve to be adequately compensated. Accordingly while setting aside the - 9 - impugned Judgment and decree, I deem it appropriate to award substantial costs in favour of the respondents. Considering the facts and circumstance of the case, I quantify the costs at Rs.20,000/- ( Rupees twenty thousand only). Petitioners shall deposit the costs in the trial Court within a period of four weeks. Impugned Judgment and decree is set aside subject to deposit of Rs.20,000/- in the trial Court. Upon costs being deposited, liberty to the respondents/defendants to withdraw the costs. Further liberty is granted to the petitioners herein to avail of appropriate remedy as may be available in law against order dated 7.4.2010 passed by the trial Court. 11. Rule is made absolute in the aforesaid terms. 12. Writ Petition stands disposed of. A. P. LAVANDE, J. vn*