HIGH COURT OF BOMBAY AT GOA
(BEFORE VALMIKI MENEZES J.)
WRIT PETITION No.7 OF 2026
- MARIA EULALIA LEOPOLDINA CARVALHO
AND ORS. … PETITIONERS
VERSUS
- JOHN PHILIP PEREIRA AND ANR. … RESPONDENTS
Order 9 Rule 13 CPC, Principal of Natural Justice – violated – An order allowing application for intervention by former attorney in an application filed by Communidade of Cortalim under Order 9 Rule 13 of CPC is passed without hearing the parties, is a nullity – If the intervenor had no right to be impleaded, independently as a defendant in the suit, he ought not to be impleaded as an intervenor in the application under Order 9 Rule 13 CPC.
FACTS
The original Plaintiff Maria Pia Carvalho filed Regular Civil Suit No. 83/2008/B for declaration that the name of the Communidade of Cortalim (original sole Defendant) was wrongly recorded in the occupants column of the Survey Records in Form I & XIV of land under Survey Nos. 2, 3 and 4 of village Cortalim. Further relief was sought for a direction to delete the name of the Defendant in the Survey Records and substituting the same with name of the Plaintiff – After service on the Communidade of Cortalim it put in appearance, however, thereafter stopped appearing and the suit came to be decreed on 01.09.2010, granting the reliefs sought in the plaint, accordingly survey records was substituted- The Communidade of Cortalim by an application under Order 9 Rule 13 CPC dated 05.10.2018, presented on 08.10.2018, before the Civil Court, sought for setting aside of this Decree – the Plaintiff was never served with the notice of this application until she passed away on 06.04.2020.
In the meantime, Respondent No. 1, who was by then no more Attorney of the Communidade of Cortalim, filed an application for intervention dated 10.09.2018, before the Trial Court, seeking intervention in the Civil Misc. Application No. 36/2018. Even this application, though sought to be served on the original Plaintiff, was never served on the Plaintiff and without the Plaintiff having been notified of the same, the application came to be disposed of by the first impugned order dated
12.02.2020.
The Plaintiff Maria Pia Carvalho expired soon thereafter on 06.04.2020. The Communidade of Cortalim brought the Legal Representatives of the original deceased Plaintiff on record by an application which was dated 09.01.2024. It is at this time that the newly elected Attorney i.e. Respondent No. 16, brought on record Legal Representatives of the original Plaintiff on record, who are present Petitioners – Pursuant to the present Petitioners being brought on record as Legal Representatives, they moved an application dated 27.06.2024 before the Trial
Court for seeking recall of the order granting intervention of Respondent No. 1, since neither they nor their mother, original Plaintiff was served with the application and the impugned order was passed without hearing them.
This petition challenges two orders passed by the Court of Civil Judge Junior Division, ‘A’ Court at Vasco Da Gama in Civil Misc. Application No. 36/2018/B (filed under Order 9 Rule 13 CPC in Regular Civil Suit No. 83/2008/B). The first order under challenge is dated 12.02.2020, by which the Civil Court allowed an application filed by Respondent No. 1 herein, permitting him to intervene in the application i.e. Civil Misc. Application No. 36/2018/B.
The second order dated 01.04.2025, which has been impugned herein, by which an application dated 27.06.2024, filed by the Plaintiff, seeking recall of the first order dated 12.02.2020, on the ground that the intervention was permitted without having any notice being issued by the Court to the original Plaintiff.
The main point that fell for determination in this petition is whether the first impugned order suffers from material irregularities and is passed without following the principals of natural justice.
Held:-
The original Plaintiff Maria Pia Carvalho was never served with the copy of the notice of the application under Order 9 Rule 13 CPC for recall of the Decree nor was she served with the copy of the intervention application. Admittedly she expired on 06.04.2020, when the application under Order 9 Rule 13 CPC was pending before the Trial Court. Notice was only served on the Communidade of Cortalim, which itself was the Applicant and no notice was ever served on the original Plaintiff prior to her demise. An order which is passed without hearing the parties, is a nullity and cannot be allowed to stand. The party concerned at the relevant time, when the first order was passed, was the original Plaintiff Maria Pia Carvalho and not her Legal Representatives. The first impugned order was therefore certainly passed without hearing the original Plaintiff and therefore must be quashed and set aside for want of compliance with the principles of natural justice. (Para 9)
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