- 1 - IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.343 OF 2011. Mr. Raya Narayan Naik, s/o. Late Mr. Narayan Naik, Agriculturist, Major age, Indian National, R/o. House No. 354/2, Xindolem, Sancoale, Mormugao Goa. .......... Petitioner. Versus 1 Ms. Alda Erena Zelia Gonsalves alias Alda Gonsalves, d/o late Shri Jose Francisco Gonsalves, unmarried, Major of age, Indian National, r/o. Ucassaim, Near Church, Bardez Goa. 2 Mr. Jose Proto Assumcao Nuno Gonsalves, s/o late Shri Jose Francisco Gonsalves, unmarried, Major of age, Indian National, r/o. Ucassaim, Near Church, Bardez Goa. 3 Mrs. Maria Terezinha Valentina Gonsalves, d/o late Shri Jose Francisco Gonsalves, w/o Shri Rosario Cipriano Fernandes, Major of age, Indian National, r/o. Ucassaim, Near Church, Bardez Goa. 4 Mr. Rosario Cipriano Fernandes, s/o Shri - 2 - Napoleao Fernandes, married, Major of age, Indian National, r/o. Ucassaim, Near Church, Bardez Goa. 5 Mr. Jose D'sa, son of Shri Caetano D'sa, of Major age, Indian national, r/o. House No. 45, Nagao, Verna, Consua, Salcette Goa. 6 Mrs. Jose D'sa, Major age, Indian national, r/o. House No. 45, Nagao, Verna, Consua, Salcette Goa. 7 Mr. Anthony D'Souza, son of Shri Jose Nicalau D'Souza, r/o. House No. 11-A-72, Uttar Dongari Chicalim Goa. .......... Respondents. Shri D. Pangam, Advocate for the petitioner. Shri E. O. Mendes, Advocate for respondent nos.1 to 4, 6 and 7. CORAM : F.M. REIS, J. DATE : 9th November, 2011 JUDGMENT Heard Mr. D. Pangam, learned Counsel appearing for the petitioner and Mr. E. O. Mendes learned Counsel appearing for respondent nos.1 to 4, 6 and 7. - 3 - 2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondent nos. 1 to 4, 6 and 7 waives notice. 3. The above petition challenges the order dated 24.8.2010 passed by the learned Civil Judge, Junior Division, Vasco Da Gama whereby an application dated 18.8.2010 filed by the petitioner for framing an additional issues and/or modifying the earlier issues came to be rejected. 4. It is not disputed that at the earlier stage petitioner had filed an application for framing of issues on the basis of rejoinder filed by the petitioner to the amendment application which came to be rejected by an order dated 18.11.2009. Thereafter an application for amendment of the pleadings was allowed by learned Judge by an order dated 14.1.2010. Subsequently, the respondents have also filed an additional written statement to the amended pleadings. An application was filed by the petitioner to modify the issues framed by the Court on the basis of the amended pleadings. Learned Judge rejected the said application by impugned order dated 24.8.2010 essentially on the ground that as earlier an order was passed by the Court dated 18.11.2009 refusing to frame a similar issues it precluded - 4 - the Court from entertaining the said application. 5. Mr. Pangam, learned counsel appearing for the petitioner has assailed the impugned order and pointed out that the proposed issues framed by the petitioner flows from the additional pleadings filed by the petitioner. Learned counsel further pointed out that merely because earlier application for framing an additional issues came to be rejected it does not by itself disentitles the petitioner to file the present application for framing additional issues or for modifying the issues on the basis of amended pleadings. Learned Counsel further pointed out that the learned Judge erroneously exercised its jurisdiction while passing the impugned order and as such the impugned order deserves to be set aside. 6. On the other hand Mr. Mendes, learned Counsel for the respondent nos. 1 to 4, 6 and 7 pointed out that he in fact does not dispute that the proposed issues nos. 1 and 2 in the application dated 18.8.2010 at para 2 thereof flow from the amendment to the pleadings of the plaint carried out by the petitioner. Learned Counsel further pointed out that the petitioner is unnecessarily delaying the disposal of the suit by filing frivolous applications and according to the - 5 - respondents the suit deserves to be expedited. 7. On perusal of the record and on going through the impugned order, I find that the learned judge was not justified to reject the application filed by the petitioner for additional/ modification of the issues by the impugned order. It is to be noted that the earlier application for framing additional issues was rejected essentially on the ground that no issues can be framed on the basis of the rejoinder to the application to seek leave to amend the plaint, as such rejoinder cannot be considered to be pleadings in the suit. Thereafter it is an admitted position that the petitioner has accordingly amended the pleadings and as such averments are now found in the pleadings of the petitioner. As the averments in the pleadings have been denied by the respondents while filing their additional written statement the learned Judge ought to have framed the additional issues as proposed by the petitioner as issues no. 1 and 2 at para 2 of the application dated 18.8.2010. Shri Mendes learned counsel appearing for the respondents fairly concedes that issues nos. 1 and 2 can be framed in the suit on the basis of amended pleadings filed by the petitioner. 8. In view of the above, the impugned order cannot be - 6 - sustained and deserves to be quashed and set aside. In view of the above, I pass following order:- O R D E R i. The impugned order dated 24.8.2010 refusing to frame additional issues nos. 1 and 2 in terms of the application dated 18.8.2010 at nos. 1 and 2 thereof at para 2 is quashed and set aside. ii. The learned Judge shall modify issue nos. 1 and 2 in accordance with said proposed issues at nos. 1 and 2 in the application dated 18.8.2010 at para 2 thereof. iii. Considering the request of the learned counsel, learned judge shall dispose of Regular Civil Suit No.30/2007/D as expeditiously as possible. iv Rule is disposed of in the above terms. iv. Petition stands disposed of accordingly with no order as to costs. F.M. REIS, J. vn*