U.D. Salvi, J.
1. Rule, returnable forthwith. Heard by consent of the parties.
2. One M/s. Balaji Property and Developers purchasers of the property bearing Survey No. 224/1, 224/2 and 224/3 admeasuring about 44147 square metres situate at village Jua, Tal. Tiswadi, Goa under registered sale deed dated 10.07.2007 have invoked Articles 226 and 227 of the Constitution for setting aside the judgment and decree dated 22.5.2009 passed in Civil Suit No. 48/2008 by the Court of District Judge- III at Panaji. According to the petitioner, the said property was duly purchased by it from the respondent Nos. 5- Jose Fonseca, 6- Araci Fonseca, 7- Edgar Fonseca. The said property, the petitioner further reveals, was the subject matter of Inventory Proceedings bearing No. 42/73/B filed in the Court of CJSD, Panaji by one Luis Bonaparte Fonseca - father of the respondent No. 5 Jose and 7 Edgar and father-in-law of respondent No. 6 Araci w/o Jose in relation to the assets of his deceased wife Odela Da Fonseca; and the said property was allotted to the respondent No. 5; Jose and the said Luis had by a registered will bequeathed all his assets in favour of his son respondent No. 7 Edgar. The petitioner further reveals that one Basilio Castelino posing as the trustee on behalf of the respondent No. 1 Church of Saint Matias addressed a notice dated 12.12.2007 threatening it with legal action to set aside the sale deed and making some false allegations; and without initiating any proceedings in respect of the said sale deed, the said Basilio - Caveator herein filed an application for mutation in revenue records based on the impugned judgment dated 22.05.2009.
3. It is the case of the petitioner that this impugned judgment was obtained by the said Basilio Castelino smarting to be purported attorney of the respondent No. 1 Church in suit No. 48/2008 being a 'special case' under Section 90 r/w. Order XXXVI, Rule 1 of the Code of Civil Procedure, 1908; and the learned District judge could not have passed the impugned judgment and decree in the suit as framed, wherein neither the petitioner, its predecessor-in-title respondent Nos. 5, 6 and 7 nor all the parties to the agreement as envisaged under Section 90 of the Code were made parties in the said suit. The petitioner further states that the learned District Judge treated the said suit not as a suit under Section 90 of C.P.C. but as an ordinary civil suit and proceeded to pass the impugned judgment and decree disregarding the provisions of Order XXXVI of C.P.C. According to the petitioner, there was revelation made in the said suit that the same has been filed on the basis of order dated 11.3.2008 passed by Division Bench of the Court in W.P. No. 131/2008 filed by the respondent No. 1 through the said Basilio Castelino.
4. None except the caveator Castelino again posing as the representative of the respondent No. 1 Church, contested this petition. The record reveals that the petitioner without going into the question of competency of the caveator to represent the Church chose to proceed with the final hearing of this petition for which the notices were issued by my predecessor the learned Brother Mr. Justice A. H. Joshi vide order dated 27.8.2009. The Caveator was permitted to join the issues with the petitioner with his pleadings, particularly his affidavit-in-reply.
5. Contesting parties were heard at length and the record was perused. Besides oral submissions, the caveator placed on record written submissions as well as his written argument dated 25.08.2009 on the admissibility of the writ petition. Emotive submissions were made by the Caveator to impress upon the Court as to how he is true representative of the Church leading the crusade to save the properties of the Church including the said property from the 'fraudulent usurpers' of the right, title and interest of the Church and the tenant one Roque Puligere crasto. Much of the legal gravamen was lost in the philosophical jargon and theological sophistry in the submissions of the caveator in person. In contrast with the submissions made on behalf of the caveator in person the learned Senior Advocate Nitin Thakkar with professional cool in his submissions took this Court through the provisions of law governing a 'special case' and pointed out therefrom how the learned District Judge overstepped its jurisdiction while acting in flagrant disregard of law or the rules of procedure and proceeded to pass the impugned judgment and decree making inroads into the rights of the petitioner without being heard and thereby occasioning grave injustice to the petitioner. Relying on the judgment reported in : 2003 (6) SCC 675 Surya Dev Rai v. Ramchander Rai and Ors., learned Advocate Thakkar submitted that the facts and circumstances in the present case warranted exercise of the jurisdiction of this Court both under Articles 226 and 227 for doing away with such grave injustice caused to the petitioner.
6. Submissions made on behalf of and by the rival parties call for critical examination of the impugned judgment and decree as well as application or the plaint with which the said suit was instituted in light of the relevant provisions of law. Admittedly, the said civil suit was instituted under Section 90 r/w. Order XXXVI of the Code of Civil Procedure, 1908 for a decree to appoint the plaintiff the Church of Saint Matias represented by Basilio Santana Castelino as the receiver of the said properties for the purposes of mutation of the survey record of rights. Initially, the respondent No. 2-State of Goa, the respondent No. 3- District Collector, North Goa, the respondent No. 4-Mamlatdar of Tiswadi Taluka, the respondent No. 5-Jose Fonseca, the respondent No. 6-Araci Fonseca, the respondent No. 7-Edgar Fonseca, the respondent No. 8-Catherina Crasto and the respondent No. 9-Archbishop of Goa and Daman were made party defendant Nos. 1 to 8 respectively to the said suit. The impugned judgment reveals that the defendant Nos. 1,2,3,7 and 8 therein i.e. the State and its officials, Catherina Crasto and Archbishop of Goa and Daman were served and were proceeded ex-parte. Notices issued to one Alvaro Avelino Gouveia purportedly constituted attorney of the members of Fonseca family, respondent Nos. 4, 5 and 6 therein were returned on the ground that the said Mr. Gouveia was not the constituted attorney and, thereafter, the names of the defendant Nos. 4, 5 and 6 therein were deleted on an application filed on behalf of the Church through Caveator Basilio Castelino. Thus, it is abundantly clear that neither the petitioner nor its predecessor-in-title the defendant Nos. 4, 5 and 6 in the said suit were served with the notice of the said suit and yet proceeded against for getting a binding verdict against them. Apart from this factual position, it will be of interest to examine whether the said suit under Section 90 of the C.P.C. could have been instituted in the form and manner it came to be instituted in the Court of District Judge- III, North Goa, Panaji.
7. Section 90 of the Code needs to be gainfully reproduced hereunder to understand what the Court should expect in such 'Special Case-'.
Section 90 - Power to state case for opinion of Court - Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.
8. Essentially the genesis of the 'Special Case' lies in the agreement in writing between the persons to state a case for the opinion of the Court. The procedure governing the 'Special Case' , resorting to which the Court has to try and determine such 'Special Case' is found expressed in Order XXXVI of the Code.
9. Who could be parties to such 'Special Case' is the question which is answered in Order XXXVI of the Code. Order XXXVI Rule 1 of the Code requires the parties claiming to be interested in the decision of any question of fact or law have to first enter into an agreement in writing stating such question in form of a case for the opinion of the Court and every such case should be a concise statement of such facts with reference to specific documents as may be necessary to enable the Court to decide the question raised thereby. It also delineates the scope of the questions which the Court is obliged to answer in respect of such 'Special Case' in the following terms:
Order XXXVI, Rule 1 - Power to state case for Court's opinion - (1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court, and providing that, upon the finding of the Court with respect to such question, -
(a) a sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to the other of them; or
(b) some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or
(c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.
10. Reading of Order XXXVI, Rule 3 of the Code shows that the agreement referred to in Section 90 as well as Order XXXVI, Rule 1 of the Code is expected to be framed in accordance with the rules stipulated therein. Sub Clause 2 of this rule which reads as under:
Rule 3(2) - The application, when so filed, shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or the others of them as defendant or defendants; and notice shall be given to all the parties to the agreement, other than the party or parties by whom the application was presented.
clearly answers the question as to who shall be the plaintiff or plaintiffs and defendant or defendants in such 'Special Case'. Only the parties to the agreement in writing formulating the question/s in form of a 'Special Case' can institute such a 'Special Case' in the Civil Court of competent jurisdiction and qualify themselves to be the plaintiffs in such a case, and other or the others of such parties can be transposed as defendant or defendants in such suit. Logically, therefore, this provision mandates giving of notice to all the parties to the said agreement other than the party or parties by whom such application/ suit was presented. Legislative intent to offer such frame work of a 'Special Case' further finds expression in Rule 4 of Order XXXVI in the Code in the following terms:
Order XXXVI, Rule 4 - Parties to be subject to Court's jurisdiction - Where the agreement has been filed, the parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements contained therein.
11. The provision reveals that the persons enjoying the trust of each other so much so to have entered into an agreement in writing for stating the facts but not knowing answers to the questions or their problem arising out of such facts subject themselves to jurisdiction of the Court for getting answer to their questions or problem, and only then they are expected to remain bound by their statements contained in such agreement. From this, it is not difficult to gather that the parties to such suit must be parties to the agreement necessary for initiating a 'Special Case' .
12. If one compares relevant agreement in writing with the application/ plaint, one can easily discover that one Roque Puligere Crasto referred to as the tenant in the said agreement was not joined as party to the said application/ suit and the parties (i) State of Goa (ii) North Goa District Collector (iii) Mamlatdar of Tiswadi Taluka (iv) Jose Rajendra Derek Da Fonseca (v) Smt. Araci De Fonseca (vi) Edgar Bonaparte Fonseca (vii) Catherina Crasto (viii) The Archbishop of Goa, Daman, who were not parties to the said agreement were shown as party defendants in the said application/ suit. It can also be seen that one Fr. Martinho Filipe Antonio Dourado - a Parish Priest shown to be the representative of the Church of Saint Matias in the said agreement was also not impleaded to the said application or suit in any manner whatsoever. Consequently, it can be seen that no notice of the said 'Special Case' as revealed through the said suit was given to Roque Puligere Crasto party to the said agreement. The Caveator contends that the said Crasto was examined in the said suit. However, it is not shown by the Caveator that the said Crasto had notice of what application was moved for instituting the said suit before the Civil Court. Contention of the Caveator, therefore, holds no substance. Obviously, the application/ suit was not instituted in the manner required by Order XXXVI, Rule 3 of the Code. The specious plea of the Caveator that the agreement between the parties over rules the law, also deserves to be rejected.
13. Some 50 recitals of the said agreement speak about: (i) Nature, 'legal character and authority' of the Church as seen through the eyes of the parties to the said agreement (ii) Church's ownership over the said property and dispute between Church and the family of late Luis Bonaparte Fonseca and late Joao Baptista Junior Crasto and his wife late Smt. Filomena Dias (iii)Difficulty in tracing out the records concerning the ownership of the Church in respect of the suit property and traditions, customs and usage defining the said ownership (iv) Acknowledgment of the servient right of Church and their status as tenants paying Pencao in the said land by the family of Bonaparte Da Fonseca (v) Existence of the name of late Mr. Luis Bonaparte Da Fonseca and his family in survey record of rights in occupants column in form I and XIV and inadequacy of such record to spell out the title of the said family to the said land (vi) Non-payment of lease rent by the Bonaparte Da Fonseca family to the Church and the approximate arrears of the lease rent in respect of the said property to the Church (vii) Status of late Joao Baptista Crasto and, thereafter, of his son Shri Roque Puligere Crasto as a deemed tenant in the said property (viii) Invalidity of Inventory Proceedings (ix) Surrender of share in tenancy by three brothers of Shri Roque Crasto (x) Obtaining of fraudulent and illegal decree in RCS No. 37/97/B between the family of Fonseca and Filomena Dias on 4.4.1997 in the Court of CJSD, Panaji in respect of the suit property (xi) Burning of farm house, storeroom, residential house, cattle shed standing in survey No. 224/1 of Roque Crasto by Fonseca family in May 1997(xii) Criminal activities of the 'Thugs' of Fonseca family in the said property (xiii) Acquisition of questionable title to the said property by Inventorist Jose Rajendra Derek Fonseca, his wife Smt. Araci and Shri Edgar Fonseca and his wife(xiv) Invalidity of the said Inventory proceedings, (xv) Lawful surrender of the tenancy by Roque Puligere Crasto and the tenant in favour of the Church for a compensation valued in divine principle of his faith and belief (xvi) Legal right of the Church to initiate criminal proceedings for recovery of damages and compensation payable to the tenant and lastly (xvii) Valuation of the said case at Rs. 1 Crore 18 Lacs. Significantly, a vast canvass of facts and legal issues involving the parties other than those to the said agreement as well as legal forums other than civil court was unfolded through the recitals of the said agreement.
14. The agreement further reveals that the Church of Saint Matias acting through its Parish Priest, father Martinho Filipe Antonio Dourado and the tenant - Roque Puligere Crasto have admitted whatever the receiver 'the Caveator' herein expressed in the forgoing recitals and further joined the receiver 'to state a case for the said opinion' and to obtain a decree to correct survey record of rights for the Church and to pay compensation to tenant through Court of Mamlatdar for surrender of his deemed tenancy and to initiate criminal proceedings against Jose Rajendra Derek Fonseca, his wife and Edgar Fonsea and their agents, attorneys, abettors, and to recover damages of whatever loss caused to the Church. It further reveals expectation of the Church and the tenant from the receiver that the receiver (i) shall apply under Section 11 of the Arbitration and Conciliation Act, 1996 on their part to be appointed as arbitrator, (ii) shall apply for receivership of land (iii) shall apply under Section 44 of the Land Revenue Code, 1968 to obtain the certificate and leave from the Collector or for any settlement. Cleverly, the agreement takes care of the expenses to be incurred for such legal acrobatics and shifts its burden to the Church and the tenant. One, therefore, wonders as to what questions does the said agreement pose for the Civil Court to answer.
15. Order XXXVI, Rule 5 of the Code concisely, and effectively lays down the method of hearing of such suit in a 'Special Case' and the points on which the Court is expected to record its satisfaction in the following terms:
Order XXXVI, Rule 5 - Hearing and disposal of case - (1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suit so far as the same are applicable.
(2) Where the Court is satisfied, after examination of the parties, or after taking such evidence as it thinks fit, -
(a) that the agreement was duly executed by them,
(b) that they have a bona fide interest in the question stated therein, and
(c) that the same is fit to be decided, it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so pronounced a decree shall follow.
16. Amidst this legal and factual scenario, the Caveator posed a question as to the maintainability of this writ petition. According to him, the petitioner has several remedies to set at naught the effect of the decree passed in the said suit namely (i) by initiating contempt proceedings against the learned District Judge (ii) by taking steps under Section 34 of the Indian Trust Act and not by invoking the writ jurisdiction of this Court. He further submitted that only the parties against whom the decree has been passed could have challenged the impugned judgment and decree and none else. Countering these submissions, learned Advocate Nitin Thakkar for the petitioner pointed out from the finding of the District Judge on issue No. 3 in the said suit how dangerous it is if used by the Caveator Basilio Castelino before the Revenue Authorities in the proceedings for carrying out mutation. He further submitted, that left with no remedy in the civil law against the dangerous findings of the District Judge given behind their back in the said suit, the petitioner had to knock the doors of this Court.
17. It is correct that the petitioner or its predecessor? in-title were deliberately kept away from the said suit by the Caveator and this disabled the petitioner or its predecessorin-title from throwing challenge to the said suit before the Trial Court. Even if the petitioner or its predecessor-in-title would have met this fate after being made party to the said suit, the law - Order XXXVI, Rule 6 of the Code - would not have permitted them to prefer an appeal from the decree passed under Rule 5, Order XXXVI.
18. Reading of the Apex Court judgment in Surya Dev Rai's case (supra) unfolds the parameters for exercising writ jurisdiction under Articles 226 and 227 of the Constitution. The Hon'ble Apex Court held that in practice the parameters for exercising the jurisdiction under either of the Articles are almost similar and width of jurisdiction exercised by High Courts, unlike English Courts, have almost obliterated distinction between the two jurisdictions. Some of the glistening words of the Hon'ble Apex Court can be gainfully reproduced herein below for the purposes of understanding effective and meaningful exercise of such jurisdiction in the present case:
Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii)in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii)acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
19. Concisely, it can be said, any misadventure of the subordinate Court in exercise of its jurisdiction resulting in failure of justice or causing of grave injustice warrants exercise of writ jurisdiction both under Articles 226 and 227 of the Constitution. It is, therefore, necessary to examine whether the learned District Judge indulged in such misadventure. Firstly, it can be seen that the learned District Judge acted in flagrant disregard of law or the rules of procedure governing a 'Special Case' as available under Order XXXVI of the Code. As observed hereinabove, the frame work of the said suit was bad in law in as much as all the parties to the agreement in writing envisaged under Section 90 of the C.P.C. were not joined to the said suit nor was the notice of the said suit given to all the parties to the agreement as required under Rule 3 of Order XXXVI of the Code. Secondly, the learned District Judge completely overlooked a fact that it was a 'Special Case' between the parties to the said agreement in writing under Section 90 of the Code and not a regular adversarial type of civil suit. This can be seen from the fact that he could entertain the said suit against the parties, who were not parties to the agreement in writing under Section 90 of the C.P.C. and ventured to give findings only for the reason of lack of resistance from such parties to the said suit. His faulty approach in deciding the issues can be seen from his own words in the impugned judgment, which are reproduced herein below for the purposes of reference:
10. Issue No. 3, : At exhibit 65 is form No. I and XIV wherein the names of Defendant No. 4 Derek de Fonseca, Defendant No. 5 Catherina Crasto and Defendant No. 7 Catherina Crasto is found recorded. Though the Defendants No. 4 and 5 are not served, but defendant No. 7 who was served remained absent. When one of the person whose name appears in the occupants column did not reply, it means the order at exhibit 46 is not a correct order and hence the name of Derick De Fonseca, Catarina Crasto and Araci De Fonseca has to be deleted from the occupants column. For the reasons mentioned above issue No. 3 is answered as proved.
20. The Courts exercising jurisdiction under Section 90 of the Code must remember that a 'Special Case' under the said provision is not a typical adversarial litigation in the sense the other civil suits are as parties in a 'Special Case' are bound by the statements contained in the agreement filed with the application or the suit presented before the Civil Court for adjudication under Order XXXVI of the Code and the Court is obliged to answer the question/s regarding the relief's which the parties can provide to each other in the given set of facts under the agreement. The Courts are, therefore, not expected to give findings, record observations and pass decrees affecting the third parties to the agreement in writing under Section 90 of the Code. Obviously, the learned District Judge ventured to overstep his jurisdiction by entertaining the said suit and recording finding as aforesaid.
21. Anxiety to avoid any harm to any third party to the agreement under Section 90 of C.P.C. is found reflected in sub Clause 2 of Rule 5 of Order XXXVI of the Code. It enjoins the Court to satisfy itself after examination of the parties or taking such evidence as it thinks fit that the agreement (agreement under Section 90 of CPC) was duly executed by them (by the parties to a suit), and that they have a bonafide interest in the questions stated therein, and that the same is fit to be decided. There exists every possibility that the parties may institute a collusive suit under Section 90 of CPC for serving their malafide intentions. It is for this reason that the Courts have to remain on vigil and record their satisfaction as to the bonafide interest of such parties in the question/s involved in such case. In the instant case, the impugned judgment reveals, the learned District Judge did nothing of this sort.
22. Though the petitioner was not party to the said 'Special Case' breeding the impugned judgment and decree, the finding therein has occasioned grave injustice to them as aforesaid and, therefore, warrants adequate intervention of this Court. A declaration, that no finding, observation or order passed in the impugned judgment and decree shall bind or affect anyone, muchless the petitioner, who is not party to the agreement dated 26.3.2007 Exh.5 in Civil Suit No. 48/2008 decreed by the District Judge-III, Panaji on 22.5.2009, will serve the ends of justice. Accordingly, it is so declared and the revenue authorities shall take note of this declaration and shall deal with representation of the Caveator Basilio Castelino in the matter of carrying out mutation in respect of the properties referred to in the said suit in accordance with law. Anyone feeling threatened regarding the title to the said property may resort to appropriate legal remedy.
23. Rule is made absolute in terms of the aforesaid directions with costs.
24. The caveator Basilio Santana Castelino moved an application for contempt under Section 15(1) of Contempt of Courts Act, 1971 to catch the attention of this Court for suo motu action of contempt against the petitioners for having initiated this writ petition and pursuing it with the affidavitin-rejoinder. The Caveator also sees placing of the order of 27.08.2009 passed in this writ petition before the Court of Deputy Collector and Sub-Divisional Officer at Panaji, Goa as an act of contempt. When asked to elaborate as to how such acts fall within the definition of criminal contempt actionable under Section 15 of the Contempt of Courts Act, 1971, the Caveator pleaded for dismissal of the said contempt petition and explained that this was merely initiated in response to the office objections raised on the affidavit dated 04.01.2010 filed in response to the order dated 16.12.2009. Suffice to say that recourse to the legal means in pursuit of justice certainly cannot be frowned upon as a criminal contempt. The contempt petition No. 2/2010, therefore, is dismissed for want of prosecution.