1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 604 OF 2009 1. Jose Andrade, 2. Smt. Leela Andrade, both r/o House No.668, Ambajim, Fatorda, .. Petitioners Margao – Goa (Orig. Plaintiffs) Versus 1. Smt. Genoveva Atanasia Fulgencia Resureicao Rebello (since deceased) House No.121, Ambajim, Fatorda, Margao, Goa 2. Shri Olencio Crasto, 3. Miss Hazel Alacoque Crasto, both R/o at House No.66, Arossim, Cansaulim, Mormugao Taluka, Goa 4. Shri Hermenegildo Andrade 5. Smt.Rosita Socorinha Andrade both r/o at House No.121-A, Ambajim, Fatorda, Margao, Goa 6. Smt. Marcelina Minguelina Andrade e Frias, 7. Shri Joaquim Domingos Tome Frias, both r/o at House No.129, Ambajim, Fatorda, Margao, 2 Goa. 8. Shri Agnelo Antonio Andrade 9. Smt. Loretta Aguiar e Andrade both r/ at House No.121-A, Ambajim, Fatorda, Margao, Goa 10. Shri Roque Piedade Andrade 11. Smt. Blandina Andrade, both r/ at House No.814, Ambajim, Fatorda, Margao, Goa. 12. Shri Tamaturgo Andrade, 13. Smt Monica Andrade, both r/ at House No.307, Ambajim, Fatorda, Margao, Goa .. Respondents. (Orig. Defendants) Mr. A. F. Diniz, Advocate for the petitioners. Mr. M. P. Almeida, Advocate for the respondent Nos. 2 to 13.. CORAM :- U. D. SALVI, J. DATE : 20 th January, 2010. ORAL JUDGMENT : Rule, made returnable forthwith. The matter is taken up for hearing by mutual consent. 3 2. Heard. Perused petition and the annexures therewith. 3. Grievance is made by the petitioners that opportunity to lead the evidence as regards the affidavit dated 10/07/1989 sworn in by the defendant Nos.1, 4, 8, 10 and 12, affidavit of deceased Basilio Andrade- husband of the defendant No.1Genoveva and affidavit dated 02.04.2001 sworn in by Julio Rebello, has been denied to the petitioner / plaintiff Jose Andrade without considering the relevant provisions of law, particularly Sections 32 and 65 of the Evidence Act. 4. The record reveals that the petitioners / plaintiffs had made an application for production of notarized copy of the affidavit dated 10.07.1989 of the defendant Nos. 1,4,8,10 and 12 in Special Civil Suit No.95/2001/III wherein the impugned orders were made. It is further revealed that a statement was made by the petitioners / plaintiffs that the original affidavit on record of the Margao Municipal Council no longer exists in the municipal record. Affidavit swearing the said fact also appears to be on record of the said suit. It 4 is further submitted that the defendant No.1's husband Basilio Andrade and Joanita Rebello are dead and the plaintiffs are ready and willing to examine any officer or the record keeper of the Margao Municipal Council to establish the fact of the loss of the original affidavit of the deceased defendant Nos. 1,4,8,10 and 12, and further to identify the signatures of the authors of the said documents. 5. It is pointed out that the provisions of Sections 32 and 65 of the Evidence Act have not been considered by the learned Trial Court and on considering the entire evidence showing the loss of the documents and identification of the signatures of the authors of the documents, the applications can be finally disposed of by the Trial Court. 6. Considering these facts and circumstances, the impugned orders dated 20.06.2008 and 18.06.2009 passed by the IIIrd Additional CJSD, Margao in Special Civil Suit No.95/2001/III are set aside. The learned Trial Court to give opportunity to the petitioners to lead all relevant evidence concerning the said documents and to decide the said applications dated 06.02.2007 and 21.03.2009 in light of such evidence and provisions of Sections 32 and 65 of 5 Evidence Act. No order as to costs. Rule is made absolute in above terms. U. D. SALVI, J. SMA