1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 781 OF 2010 1. Shri Caetano Remedio Dourado son of late Mr. Joaquim Dourado, aged 70 years,Occupation businessman; and his wife; 2. Smt. Joana Ermina Dourado, wife of Shri Caetano Dourado, aged 63 years, Occupation housewife; Both residents of H.No.38/A, St. Joaquim Road, Borda, Margao, Goa .. Petitioner/ Original Plaintiffs V e r s u s 1. Shri Digamber A. Naik son of Atma Naik, aged 61 years, businessman, and his wife, 2. Smt. Nalini Digamber Naik wife of Shri Digamber Naik, and 56 years, occupation housewife. Both residents of H.No.38/B, Borda, Margao, Goa 3. Shri Antonio Filipe Santano Do Rosario Andrade major in age, s/o. late Ludovico Andrade, landlord and his wife; 4. Smt. Alica Cunha Andrade, major in age, housewife, d/o. Basilio Cunha; 4(i) Shri Glen Andrade s/o late Antonio F. Santano do Rosario Andrade, 2 major in age, service, 4(ii) Shri Neville Andrade, s/o late Antonio F. Santano do Rosario Andrade, major in age, service, 5. Smt. Nipha Nazareth Andrade alias Nipha Andrade, major of age, widow of late Joaquim Jose Francisco do Rosario Andrade, housewife, 6. Shri Essel Joaquim Andrade alias Edsel Andrade, major in age, s/o late Joaquim Andrade, service; 7. Smt. Yvonne Andrade, major in age, d/o late Joaquim Jose Andrade and her husband; 8. Shri Vicente Moniz, major in age, s/o Leopodino Moniz, service; 9. Shri Lester Andrade, major in age, s/o Joaquim Andrade, and his wife; 10. Smt. Thelma Andrade, major in age, housewife; 11. Fr.Jose Largo DeGraca Do Rosario Andrade, major in age, s/o Ludovico Andrade, Priest; 12. Shri Carlos Coracao Do Jesus Do Rosario Andrade major in age, s/o Shri Ludovico Andrade, service and his wife; 13. Smt. Rita Maria De O Loilola Pereira Andrade, major in age, d/o Octaviano Loilola Pereira, service, 3 All r/o. H.No.204, Opp. St. Joaquim Chapel, Borda, Margao, Salcete, Goa. (In view of order dt. 14th January, 2011, respondent nos.3 to 13 are deleted.) .. Respondents Original Defendants Mr. Sudesh Usgaonkar, Advocate for the petitioners. Mr. D. S. Naik, Advocate for respondent nos.1 and 2. CORAM : A. P. LAVANDE, J. Date : 14 th January, 2011. ORAL JUDGMENT : Mr. Usgaonkar, learned Counsel for the petitioner seeks leave to delete respondent nos.3 to 13. The petitioners are permitted to delete respondent nos.3 to 13 at their own risk. Amendment to be carried out forthwith. 2. Rule. By consent of learned Counsel for the parties heard forthwith. 3. By this petition, the petitioners challenge the order dated 26th October, 2010 passed by the Civil Judge, Senior Division, Margao in Special Civil Suit No.71/2005/II Addl. by which the application dated 3rd April, 2010 filed under Order XVIII, Rule 3 of C.P.C. has been dismissed. 4. The petitioners are the plaintiffs in the above suit 4 filed against the defendants seeking relief of injunction and other consequential reliefs. The suit was contested by respondent nos.1 and 2 / defendants. On the basis of the pleadings, the trial Court framed 18 issues, out of which the burden of proving first four issues is on the plaintiffs, whereas the burden of proving the remaining issues is on the defendants. 5. By application dated 3rd April, 2010, the plaintiffs sought leave to lead evidence only in respect of the issue nos. 1 to 4 reserving their right to lead rebuttal evidence in respect of the remaining issues, the burden of which is on the defendants. By the impugned order, the trial Court has dismissed the application on the ground that if the parties are allowed to lead evidence jointly, it will be helpful to both the parties and the same would not lead to confusion in the matter. 6. Having heard the learned Counsel for the parties, I am of the considered opinion that the impugned order is patently unsustainable in law. Under Order XVIII, Rule 3 of C.P.C., the plaintiff is entitled to lead evidence on the issues of which the burden lies on him and reserve the right to lead rebuttal evidence in respect of the issues the burden of which lies on the defendants. This right is expressly conferred on 5 the plaintiff in terms of Order XVIII, Rule 3 of C.P.C. It is also pertinent to note that the plaintiffs have filed the application seeking leave under Order XVIII, Rule 3 of C.P.C. even before the evidence is led by the plaintiffs. Therefore, in my considered opinion, the trial Court ought to have granted the application by which the plaintiffs sought to reserve their right to lead evidence in respect of the issues of which the burden lies on the plaintiffs reserving their right to lead rebuttal evidence in respect of the issues, the burden of which is cast on the defendants. 7. In view of the above discussion, the impugned order is liable to be quashed and set aside and is, accordingly, quashed and set aside and consequently, the application dated 3rd April, 2010 filed by the plaintiffs, is allowed. 8. Rule is made absolute in aforesaid terms with no orders as to costs. A. P. LAVANDE, J. SMA