1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 22 OF 2009 Mr. Francisco Jose Hilario D'Cruz, House No. 156, Macklem, Macasana, Salcete Goa. ... Appellant V e r s u s 1. Mrs. Maria da Lourdes Expectacao Couto House No.18 (New), 276 (Old), Rua de St. Joaquim, Borda, Margao, Salcete Goa. 2. Mr. Domingos Caetano Lyndon Cesar Judas Coutinho, House No.18, Rua de St. Joaquim, Borda, Margao, Salcete, Goa. ... Respondents Mr. Agnelo F. Diniz, Advocate for the Appellant. Coram :- A. H. JOSHI, J. Date :-28 th AUGUST, 2009. JUDGMENT : 1. After first notice, which was a show cause notice against admission, the respondents have failed to appear. This Court had therefore issued fresh notice of final disposal. Notice sent by Court service as well as registered post is at* 2 reported to be served. Respondents have chosen to remain absent. 2. The appeal is therefore taken up for final disposal in terms of notice. 3. The case proceeded on following admitted facts :- (a) Present appellant's application was rejected by Rent Controller. (b) Order of eviction dated 6.5.2004 is passed in favour of appellant by the Administrative Tribunal. (c) The defendant no.2 moved the Administrative Tribunal with prayer to set aside the order of Tribunal on the ground of want of service of notice of appeal. (d) The Tribunal did not accept the contention that service was not done and has dismissed the application for setting aside the order passed by the Tribunal on 6.5.2004, by Tribunal's order dated 30.1.2008. (e) The defendant no.2/respondent no.2 has not challenged the said order dated 30.1.2008 passed by the Tribunal by filing a Writ Petition or otherwise. 4. The plaintiff who is respondent no.1 has filed a suit which is registered as Special Civil Suit No. 41/2008/A, in which the plaintiff has implead landlord present appellant as defendant no.1 and her husband the tenant who suffered the decree of execution as defendant no.2. at* 3 5. The plaintiff's suit is based on grounds namely :- (a) Her husband defendant no.2 was not served with the notice of Tribunal in the appeal preferred by the landlord. (b) Other family members who were tenants along with the defendant nos. 1 and 2 were not added as defendants. (c) Defendant no.3 is a person of vices and was negligent in pursuing the litigation and has not challenged the order of eviction and if the order of eviction is executed, the plaintiff and her family members would suffer. 6. In the said suit, the plaintiff filed application for temporary injunction. The application has been opposed by the defendants. Learned Trial Judge has passed impugned order on the application for temporary injunction on 26.11.2008. 7. In the said order the learned Judge inter-alia observed as follows :- “There is nothing on record to show that the said application dated 3.3.2003 was served upon the plaintiff or her husband. The defendant no.1 has not placed on record the sale deed 27.1.1984 showing that he has purchased the suit house and the suit property though relied upon. Therefore, in my opinion although there is an order passed in favour of the defendant no.1 herein for evicting defendant no.2 the said order is not binding on the plaintiff as she is not the party to the said proceeding and admittedly, the application for intervention filed by the plaintiff in SCS No.248/98/II is pending for disposal”. (Quoted from page 16 of order dated 26.11.2008 of paper book ) at* 4 8. It is seen from the above quoted portion the finding of the Trial Court is under grave shadow of illegality namely :- (i) If the order of the Tribunal is incorrect on account of lack of service, the party who is entitled to challenge is respondent no.2, by filing a Writ Petition in this Court. (ii) It may be even open for him to challenge the decree on the ground that the notice of appeal was actually not served upon him however this challenge is not available for any other person than one who claim tenancy of the house. (iii) The wife cannot claim tenancy of the house as is clear from the two judgments of this Court (i) 1991(2) Goa L.T. 237 in Smt. Zoirambi Muzawar V/s Shri Cirilo Antonio Conceicao & Ors., and (ii) First Civil Appeal No. 129 of 1990 in Cristalina Dias Fernandes V/s Smt. Alzira N. Pinheiro & Ors. (iv) The plaint does not contain a statement that the house tenancy was created in favour of plaintiff jointly with defendant no.2. (v) In absence of pleading of joint tenancy, plaintiff does not have separate and separable right from that of the defendant no.2. 9. It is not shown as to why the defendant no.2 is not challenging the order passed by the Tribunal. at* 5 10. In this premise, it would be still open to the defendant no.2 to challenge the order of Tribunal as per procedure as available in law. However, when the wife has failed to show that she has a vested right as a tenant, during the lifetime of the respondent – husband she herself is not a tenant or a joint tenant, and therefore the suit has its own limitations and handicaps. 11. On the face of existence of orders passed by the competent authority under law, the plaintiff cannot be said to have prima facie good case. 12. Had it be a case whether the fact of service of summons on defendant no.2 was brought in issue in a suit brought by defendant no.2 such suit could have been maintainable, which however is not a case. 13. In this background, the order passed by the Trial Court being passed on totally wrong assumption as to law, it deserves to be set aside, and is hereby set aside. 14. Considering the fact that the appellant may have suffered due to improper advise by way of filing the suit and instead of taking proper remedy, the order of injunction which is granted by the Court shall however remain in force for 60 days from the date of the service of copy of the judgment on the plaintiff and at* 6 defendant no.2, which the defendant no.1 may do first by producing its copy on record in suit, and in addition by sending copy by registered post. 15. In the circumstances, the appellant shall bear own costs. A. H. JOSHI, J. at* at*