-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.72/2010 Goa Floriculture & Agra Products Pvt. Ltd., a Company duly reg.( Through its Director) under the Companies Act 1956 and having its registered office at First Floor, Above Saraswat Bank, Super Market, Ponda Goa. …...... Petitioner. Versus 1 Shri Laximan Narcinva Chanecar, alias Pandurang Chanekar, major, R/o. H. No.24, Bhailipeth, Bicholim, Goa. 2 Smt. Annapurna Laxman Chanekar, major, R/o. H. No.24, Bhailipeth, Bicholim, Goa. 3 Smt. Lalitabi Babani Chanekar, major,R/o C/o Purshattam Chanekar, H. No.24, Bhailipeth, Bicholim, Goa. 4 Smt. Prachi Purshottam Chanekar, major, R/o. H. No.24, Bhailipeth, -2- Bicholim, Goa. 5 Shri Purshottam Chanekar, major, R/o. H. No.24, Bhailipeth, Bicholim, Goa. 6 Shri Narcinva Chanekar, major, R/o. H. No.24, Bhailipeth, Bicholim, Goa. 7 Smt. Nilima Narcinva Chanekar, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim Goa. 8 Smt. Shobhan Anand Kalangutkar, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim Goa. 9 Shri Anand Keshav Kalangutkar, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim Goa. 10 Smt. Rajani Purshottam Kalangutkar, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 11 Shri Purshottam -3- Kalangutkar, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 12 Smt. Nayan Govind Bandekar, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 13 Shri Govind Vinayak Bandekar, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 14 Smt. Anaya Anil Pinge, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 15 Shri Anil Shambhu Pinge, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 16 Smt. Anushka Ravindra Kanekar, major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 17 Shri Ravindrakumar Laximan Kandekar, major, R/o C/o Purshattam -4- Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 18 Shri Arun Shriram Chanekar(Expired) major, R/o C/o Purshattam Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. Through his legal heir 18a Master Amey Arun Chanekar, son, minor 19 Smt. Sumita Arun Chanekar, major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 20 Shri Raghuvir alias Prasad Shriram Chanekar, major, H. No. 24, Bhailipeth, Bicholim Goa. 21 Smt. Sangeeta Prasad Chandar, major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 22 Smt. Vranda Anil Govekar, major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. -5- 23 Shri Anil Krishna Govekar, major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 24 Smt. Mangala Mangaldas Mungi, major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 25 Shri Mangaldas Narayan Mungi, major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 26 Smt. Heema Gajanan Mhapsekar, major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 27 Shri Gajanan Ramkrishna Mhapsekar, major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 28 Smt. Manuja Satish Tilve, -6- major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. 29 Shri Vithal alias Satish Krishna Shet Tilve, major, R/o C/o Raghuvir alias Prasad Shriram Chanekar, H. No. 24, Bailipeth, Bicholim, Goa. …...... Respondents. Ms. S. Linahares, Advocate for the petitioner. Mr. D. Pangam, Advocate for the respondents. CORAM :- U. D. SALVI, J. DATE :17th/18th February, 2010. JUDGMENT Heard. Perused petition and the annexures therewith. 2. Rule, made returnable forthwith. By mutual consent taken up for hearing. 3. Controversy inthe present petition arises over framing of issues following the counter statement and additional written -7- statement of the plaintiff and the defendants respectively. Learned Trial Court rejected framing of the additional issue on two counts firstly counter statement i.e. reply to the counter statement/additional written statement could not have been the pleadings within the meaning of Order 6 Rule 1 and, secondly, the issue settled by the Court covered the material proposition necessary for deciding the right of the parties. 4. Perusal of the roznama dated 22.9.2004 in the suit reveal that the counter statement of the plaintiff was permitted to be tendered by the learned Civil Judge after hearing the parties on the application exhibit 15 made there for and, thereafter, the roznama reveal the counter statement and reply thereto i.e. additional written statement came to be introduced in the proceedings. The application exhibit 15 was made under Order 8 Rule 9 of Code of Civil Procedure which makes room for subsequent pleadings in following terms:- “No pleadings subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and -8- upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.” Thus it can be seen that the counter statement and the reply thereto (additional written statement) formally became part of the pleadings and the learned Civil Judge was obliged to look into it for the purpose of framing issues. 5. Learned Advocate Mr. S. Linhares, submitted that the additional draft issues particularly as regards the allegation made by the defendants regarding the plaintiff committing breach of agreement dated 14.8.2003 and the plaintiff's director Prakash Naik signing and giving declaration dated 14.1.2004 needs to be framed. Learned Advocate Mr. D. Pangam for the respondents argued that the issues at exhibit 'C' framed on 11.3.2005 covered the material proposition of law and fact in context with the plaint, written statement, counter statement and reply thereto. -9- 6. Perusal of the pleadings from the reply to the counter statement filed by the defendants reveals assertion that the plaintiffs have committed breach of the terms of the said agreement dated 14.8.2003 including payment of the earnest amount towards the transaction. According to the learned Advocate Mr. Pangam for the respondent, the termination of the agreement in respect of which issue no. 3 as originally framed stands occurred as a result of the said breach of the agreement. However such complete sense is not carried forthwith from the para no. 2 of the reply to the counter statement and therefore calls for a specific issue in that context. As regards the declaration purportedly made by the plaintiff Prakash Naik, it is the plaintiff's case revealed in the counter statement that Mr. Prakash Naik, director of the plaintiff had no authority to make such declaration on behalf of the company and the declaration dated 14.1.2004 purported to have been made by the plaintiff's director Mr. Prakash Naik was doctored and forged document. If this be so, it is for the plaintiff to prove this assertion and the issue in that regard will have to framed in this regard by placing burden of proving it on the plaintiff. -10- 7. In view of foregoing paras the following issues ought to have been framed by the learned Civil Judge. i. Whether the defendants prove that the plaintiff has committed breach of agreement dated 14.8.2003 including payment of earnest amount towards the transaction? ii. Whether the plaintiff proves that its director Prakash Naik had no authority to make declaration dated 14.1.2004 on behalf of the plaintiff company and the declaration dated 14.1.2004 purportedly signed by the director Prakash Naik is doctored and forged document? 8. Order dated 9/11/2009 passed by the learned Civil Judge Senior Division, Bicholim in Special Civil Suit No.20/2004/A is set aside. 9. The learned Civil Judge Senior Division, Bicholim in -11- Special Civil Suit no. 20/2004/A shall frame additional issues as aforesaid. 10. Writ petition is partly allowed. 11. Rule is made absolute in terms of aforesaid directions with no order as to costs. U. D. Salvi, J. vn*