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Judgment
Heard learned Counsel for the parties.
Learned Counsel for the parties state that a common judgment and order can dispose of both these petitions.
In Writ Petition No.886/2015, the Petitioner challenges the Appellate Authority's order dated 09.10.2015 holding its appeal No.1/2013 to challenge the eviction order made by the Estate Officer under the Goa Public Premises (Eviction of Unauthorized Occupants) Act, 1988 (said Act) as not maintainable on the ground that the Appellant, despite being a partnership firm, was not registered, and therefore, the bar under Section 69 of the Indian Partnership Act was attracted. The Respondent in this petition is the Corporation of the City of Panaji (CCP).
In Writ Petition No.71/2013, the Petitioner CCP has challenged the Appellate Authority's order dated 12.10.2012 by which the Appellate Authority ordered the de-sealing of the suit premises held by the Respondent. The Respondent in this petition is the Petitioner in Writ Petition No.886/2015.
At the request of Mr P. A. Kamat, learned Counsel for the CCP, leave is granted to amend Writ Petition No.71/2013 by including a challenge to the order dated 05.01.2013 made by the Appellate Authority condoning the delay involved in the Respondent herein instituting an appeal against the Estate Officer's eviction order dated 11.04.2011. Mr Kantak does not object to this amendment, learned Senior Advocate appearing on behalf of the Respondent herein. The amendment is to be carried out forthwith. Reverification is dispensed with.
The Appellate Authority, on the one hand, has condoned the delay in filing an appeal against the Estate Officer's eviction order dated 11.04.2011, but, on the other hand, held that the appeal itself was not maintainable under Section 69 of the Indian Partnership Act. To that extent, both these orders appear to be incongruous.
The Appellate Authority has almost entirely relied upon Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd.1,for holding Civil Appeal No.1/2013 as not maintainable. This is evident from the quotation in paragraph 15 and the discussions in paragraphs 16 to 18 of the Appellate Authority's impugned Judgment and Order dated 09.10.2015.
The Hon'ble Supreme Court's decision in Jagdish Chandra Gupta was explained by the Hon'ble Supreme Court in Umesh Goel vs. Himachal Pradesh Cooperative Group Housing Society Ltd.2.
After quoting precisely paragraph 9 of Jagdish Chandra Gupta (supra) case (as is quoted in the Appellate Authority’s impugned Judgment and Order), the Hon’ble Supreme Court made the following observations:
“25 In the first blush, when we read para 7 of Jagdish Chander case (supra), one is likely to gain an impression as though the expression ‘other proceedings’ is disjunctive of a suit as specifically prescribed in sub-sections (1) and (2) of Section 69. ʩut on a deeper scrutiny of the judgment, we find that in the light of the special features involved in the said case, it was laid down that ‘other proceedings’ would be referable to arbitration as well. We will right now note and state as to those intricate factors which weighed with the learned Judges to state the law in such terms. First and foremost, it will have to be noted that in the said case, the arbitral proceedings arose under the ʨrbitration ʨct of 1940 and in particular in relation to a proceeding which emanated under Section 8 of the said ʨct. Under Section 8 of the 1940 ʨct, the power of court to appoint arbitrator or umpire is specified. Sub-sections (1)(a) to (c) and (2) of Section 8 details the situations under which the said power of appointment of ʨrbitrator or umpire can be made. Under Section 2(c), the expression ‘court’ is defined to mean a civil court having jurisdiction to decide the questions framing the subject matter of a suit excluding a Small Cause Court. Under the said definition, an exception is carved out even for a Small Cause Court to fall under the definition of court when the said court is called upon to exercise its jurisdiction in situations, which are set out in Section 21 of the ʨct.
28.We only wish to add that though in the said decision in Jagdish Chander case, this Court did not specifically mention as to the requirement of pendency of a proceeding in the nature of a suit in a Civil Court as the basic ingredient to be satisfied as stipulated in sub-sections (1) and (2) of Section 69 in order to extend the specific prohibition even to ‘other proceedings’ under sub- section (3), this Court was fully aware of the fulfillment of those mandatory requirements having regard to the nature of proceedings that existed under the provisions of the 1940 ʨct. Therefore, our conclusion based on the interpretation of Section 69 on the whole as set out in paragraphs 10 to 18, are fully supported by the above decision. We have therefore no hesitation to hold that the ratio laid down in Jagdish Chander case (supra) does not in any way conflict with the view which we have taken herein, having regard to the advent of the 1996 ʨct, under which the nature of arbitration proceedings underwent a sea change as compared to the 1940 ʨct, what is stated in Jagdish Chander case (supra) can have application in the special facts of that case and that it can have no application to a proceeding which emanated under the 1996 ʨct, for which the interpretation to be placed on Section 69(3) will have to be made independently with specific reference to the provisions of the 1996 ʨct, where the role of the Court is limited as noted earlier to the extent as specified in Sections 8, 9 etc.
The Appellate Authority did not have the benefit of the decision of the Hon’ble Supreme Court in the case of Umesh Goel (supra). Mr P. A. Kamat submits that, despite the explanation in Umesh Goel (supra), the CCP would be able to convince the Appellate Authority that the bar under Section 69 nevertheless applies. He submitted that even Umesh Goel (supra) can be distinguished on the facts.
Considering the above submissions, the interest of justice would be best served if full opportunity is given to both parties and also to the Appellate Authority to consider the objection passed on Section 69 of the Partnership Act in the context of the decisions of the Hon’ble Supreme Court in the case of Jagdish Chandra Gupta (supra) and Umesh Goel (supra).
Accordingly, the impugned order dated 09.10.2015 is set aside. The matter is restored to the file of the Appellate Authority, i.e. the Principal District Judge at Merces. The impugned order dated 05.01.2013, by which the Appellate Authority has condoned the delay in filing the appeal, is also set aside, because if the Appellate Authority believed the appeal itself was not maintainable, there was no question of taking up the application for condonation of delay or of condoning the delay. If, as stated above, the Appellate Authority concludes that the bar under Section 69 of the Indian Partnership Act, 1932, is not attracted, then the Appellate Authority will first consider the application for condonation of delay, and if the delay is condoned, then proceed to decide the Civil Appeal No. 1/2013 in accordance with law and on its own merits.
The interim order dated 05.01.2013 in this appeal is also revived and shall operate during the pendency of the appeal.
Insofar as the other prayers in Writ Petition No.71/2013 are concerned, regarding the challenge to the Appellate Authority’s de-sealing order dated 12.10.2012, there is no point in disturbing the said order at this stage. Ultimately, that order was an interim order. Pending a decision on the objection under Section 69, there is no point in keeping the premises sealed. Therefore, the challenge to the order dated 12.10.2012 is dismissed.
The rule is disposed of in both these petitions to the extent indicated above. No costs.
The parties are to appear before the Appellate Authority, i.e., the Principal District Judge at Merces, on 15.01.2026 at 2:30 p.m. and file an authenticated copy of this order.
The Principal District Judge may himself take up this appeal or allot it to any other District Judge, in accordance with the procedure prescribed.
All concerned must act on an authenticated copy of this order.