1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition no.519 of 2010 Confrarias Reunidas Da Igreja De Panjim, Mary Immaculate Conception Church, Panaji-Goa 403 001. herein represented by its duly Constituted Attorney, Shri Olavo Dias, major of age, residing at Portais, Panaji-Goa. .... Petitioner V e r s u s (1) Mr. Luis Sales De Andrade e Souza, major of age. (2) Mr. Francisco Sales De Andrade e Souza, major of age. (3) Mrs. Antonieta Figueredo De Andrade e Souza, major of age. All residents of House no.C-1, 209, Corte de Oiteiro, Near Mary Immaculate Conception Church, Panaji-Goa. ....... Respondents Mr. R. Noronha, Advocate for the Petitioner. Mr. Sudin Usgaonkar, Advocate for the Respondents. CORAM: A. P. LAVANDE, J. DATE: 9TH SEPTEMBER, 2010. ORAL JUDGMENT: Heard learned counsel for the parties. Rule. By consent heard forthwith. 2 2. By this petition, the Petitioner challenges order dated 19.6.2010 passed by the Civil Judge Senior Division, Panaji in Regular Civil Suit No.64/1997/B, dismissing application dated 5.06.2010 filed under Order VIII Rule 1(A) of the Code of Civil Procedure, 1908. 3. The respondents filed the above suit against the petitioner seeking relief of permanent injunction in respect of the suit property bearing chalta nos.138 and 140 of P.T. Sheet No.44 of Panaji City. The defendant contested the suit. In the list of documents annexed to the written statement the defendant relied upon the survey plan and report of the surveyor Mr. Ernesto Pais. The evidence in the suit was recorded in the year 2007. The plaintiff examined its witnesses. The defendant also examined three witnesses. Thereafter, the defendant filed application dated 5.06.2010 seeking to produce the report dated 4.6.2010 prepared by Prazeres A. Gonsalves, in respect of the property bearing chalta nos.138 and 140 of P.T. Sheet No.44 of Panaji City, on the ground that Mr. Ernesto Pais who had prepared the earlier report upon which reliance was placed by the defendant was suffering from parkinson and as such, was not in a position to depose before the 3 Court. The said application was opposed by the plaintiffs. By the impugned order dated 19.6.2010, the learned trial Judge dismissed the application primarily on two grounds. Firstly on the ground that the defendant had not produced medical certificate that Mr. Pais was suffering from parkinson and secondly on the ground that the two reports were not similar as contended by the defendant and as such the defendant was trying to bring in new facts. 4. Mr. Noronha, learned counsel appearing for the petitioner submitted that the petitioner would be seriously prejudiced if the impugned order is not set aside, in as much as by the impugned order, the petitioner has been prevented from leading evidence in support of its case. Mr. Noronha further submitted that since Mr. Pais is suffering from parkinson and as such is unable to depose in the matter, the petitioner/defendant is not in a position to examine him with regard to the report prepared by him. He therefore submitted that the petitioner/defendant is entitled to produce report dated 4.6.2010 and as such, the learned trial Judge exercised jurisdiction illegally by passing the impugned order. 5. Mr. Usgaonkar, learned counsel appearing for the 4 respondents supported the impugned order and submitted that the petitioner had not produced either the medical certificate or any other evidence in support of the fact that Mr. Pais was suffering from parkinson. Mr. Usgaonkar further submitted that the learned trial Judge has rightly observed that the two reports prepared by Mr. Pais and Mr. Gonsalves are not similar and as such by producing the report dated 4.6.2010 prepared by Mr. Gonsalves, the petitioner/defendant is trying to improve its case. He further submitted that no case has been made by the petitioner for interference with the impugned order. 6. I have considered the rival submissions and perused the record. 7. As stated above, the trial Judge has dismissed the application filed under Order VIII rule IA primarily on two grounds. Firstly, on the ground that no evidence has been produced in support of the fact that Mr. Pais was suffering from parkinson and secondly on the ground that the two reports were not similar and the defendant was trying to bring in new facts. 5 8. In so far as the first ground is concerned, no doubt it was expected of the defendant to produce either a medical certificate or some other evidence in support of the fact that Mr. Pais was suffering form parkinson. But for mere non-production of a certificate or any other document/evidence, to dismiss the application would be highly technical and would cause serious prejudice to the defendant in as much as the defendant would be deprived of leading evidence in support of its case. 9. In so far as the second ground is concerned, it is rightly contended by Mr. Noronha that the report prepared by Mr. Gonslaves refers to property bearing chalta nos.138 and 140 of P.T. Sheet No.44 , which is subject matter of the suit property and as such, prima facie, the said report has relevancy in the present case. No doubt the case set up by the defendant that both the reports are similar is not correct, as rightly held by the learned trial Judge and contended by Mr. Usgaonkar but the fact remains that the said report cannot be said to be not relevant having regard to the dispute between the parties. Mr. Noronha is justified in placing reliance upon the judgment of this Court in the case of Ivy Muriet Fonseca Vs. Porus Adi Doctor 2005 (4) BomCR342, in which this Court 6 has held that the defendant is entitled to produce documents which are prima facie relevant in terms of order VIII Rules 1A (3) of C.P.C, although the same were not mentioned in the list of documents annexed to the written statement. In my considered opinion, the learned trial Judge has not correctly exercised jurisdiction while passing impugned order. By the impugned order the learned trial Judge has deprived the defendant an opportunity of leading evidence in support of its case. The learned trial Judge ought to have permitted the defendant to produce the report dated 4.6.2010. Therefore, the impugned order is liable to be quashed and set aside. 10. It is made clear that by the present order, I have only permitted the defendant to produce the above report since prima facie it is relevant. All the contentions of the defendant in respect of the said report are kept open and the learned trial Judge shall deal with the objections of the plaintiffs in connection with the said report, if the plaintiffs chose to raise said contentions during the course of evidence. 11. Rule is made absolute in the aforesaid terms. 7 Considering the facts and circumstances of the case, the petitioner is directed to pay costs of Rs.1500/- (Rupees one thousand five hundred only) to the plaintiffs/respondents. The costs shall be deposited before the trial Court within a period of three weeks from today and the defendant is at liberty to withdraw the costs after the same are deposited. 12. Interim order dated 14.7.2010 staying further proceedings in the suit is vacated. Parties either personally or through their advocates shall appear before the trial Court on 1st October, 2010 at 10.00 a.m. A.P. Lavande, J. Ap/-