1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 683 OF 2010 Merwyn Anthony Fernandes, major, Occupation service, residing at H.No.1281, Matriz No.15321, Carona Aldobna Bardez, Goa. .. Petitioner Versus 1. Brian Louis Sequeira, major in age, occupation professional. 2. Jane Philomena Sequeira, both residing at 6 Sea View, First Floor, 315 Keluskar Road (North), Shivaji Park, Mumbai 400 028. .. Respondents Mrs. A. Agni, Advocate for the petitioner. Mr. S. R. Rivonkar, Advocate for the respondents. Coram :- A. P. Lavande, J. Reserved on :- 9 th December, 2010 Pronounced on :- 10 th January , 2011 JUDGMENT : Heard Mrs. Agni, learned Counsel for the petitioner and Mr. Rivonkar, learned Counsel for the respondents. 2 2. By order dated 7th October, 2010, parties were put on notice that this petition may be disposed of finally at the admission stage. Hence, Rule. Rule is made returnable forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioner challenges the order dated 23rd September 2010 passed by Ad hoc Civil Judge, Senior Division, 'A' Court, Mapusa allowing the application dated 26th August, 2010 filed by the respondents seeking leave to produce report and the plan prepared by the Surveyor, Shri S. A. Dhuri. 4. The respondents are the plaintiffs and the petitioner is the defendant in the suit bearing no. Regular Civil Suit No.197/99/A filed seeking reliefs of demolition and removal of illegal structure built by the defendant in the suit property. The plaintiffs have also claimed mesne profits and declaration that they have acquired easementary right by prescription to the suit service entry. The suit was contested by the defendant by filing written statement. The trial Court on the basis of the pleadings of the parties, framed the following issues : 3 (i) Whether the plaintiffs prove that they are owners in possession of the suit property known as 'AFRAMENTO' situated in the village of Aldona, Ward of Carona ? (ii) Whether the plaintiffs prove that there was a pathway used as a service entry separating the suit property from the defendant's property ? (iii) Whether the plaintiffs prove that in the year 1994 the service entry was constructed to by the defendant thereby encroaching the plaintiffs' property by about 1.00 mt. ? (iv) Whether the plaintiffs prove that they have acquired easementary rights over the service entry ? (v) Whether the plaintiffs prove that they are entitled to claim mesne profits at the rate of 100 per sq.mt. ? (vi) Whether the defendant proves that the suit of the plaintiffs is bad in law for non-joinder of necessary parties ? (vii) Whether the defendant proves that vide Sale Deed dated 11.12.1987 he purchased property bearing survey no.321/8 consisting of a house, store room and a garage ? (viii) Whether the defendant proves that the Inventory Proceeding no.104/1995 initiated upon the death of Dr. 4 Fidelis Casmiro Sequeira and his wife Bibiana Sequeira before the Civil Senior Judge, Mapusa, is bad in law ? (ix) Whether the defendant proves that the suit of the plaintiffs is under valued ? 5. The plaintiffs led evidence in support of their case. It appears that initially at the time of filing written statement, the defendant did not rely upon any report of the expert. However, later on, he sought leave to produce the report of the expert Shri Sitakant Kamat, which was allowed and accordingly, the same was produced in course of his evidence. After the defendant led the evidence, the plaintiffs filed an application dated 26th August, 2010 seeking leave to produce the report and plan prepared by Shri S. A. Dhuri, Architect and Government Approved Valuer in order to prove that the defendant had carried out construction in the property of the plaintiffs. The said application was opposed by the defendant. By the impugned order dated 23rd September, 2010, the trial Court allowed the application. The trial Court held that since the plaintiffs were granted liberty to lead evidence in rebuttal and the defendant had examined Sitakant Kamat, Surveyor as DW2 and placed on record plan and report, the application seeking leave to produce the plan and report of Shri Dhuri, deserved to be 5 allowed in order to rebut the evidence produced by the defendant. The trial Court held that no prejudice would be caused to the defendant if the application was allowed since the defendant would have ample opportunity to challenge the veracity and genuineness of the report and the plan. 6. Mrs. Agni, learned Counsel for the petitioner submitted that by the impugned order, the trial Court has permitted the plaintiffs to lead evidence on the issues, the burden of proving which was on the plaintiffs and as such, it cannot be said that by the impugned order, the plaintiffs have been allowed to lead evidence in rebuttal. Mrs. Agni further submitted that merely because the defendant led evidence of surveyor after seeking leave of the Court, the same by itself would not give right to the plaintiffs to lead evidence in rebuttal in as much as the documents and the evidence allowed to be produced by the trial Court is in respect of the issues, the burden of proving which lay on the plaintiffs. Placing reliance upon Order XVIII, Rule 3, C.P.C., Mrs. Agni submitted that the plaintiffs could have led evidence in rebuttal in respect of only those issues, the burden of which lay on the defendant. Mrs. Agni further submitted that by the impugned order, the trial Court has permitted the plaintiffs to lead evidence on the issues, of 6 which the burden lay on the plaintiffs themselves, which is clearly impermissible in law in terms of Order XVIII, Rule 3, C.P.C. In support of her submissions, Mrs. Agni relied upon the following judgments : (i) P. T. Anklesaria Vs. Union of India; (1974)76 BOMLR 688. (ii) L.M.P. Precession Engineering Co. (P) Ltd. Vs. Ram Narayan; AIR 2004 Rajasthan 37. 7. Per contra, Mr. Rivonkar, learned Counsel for the respondents placing reliance upon Order XVIII, Rule 3, C.P.C. submitted that the plaintiffs are entitled to lead evidence in rebuttal in as much as issue nos.3 and 7 are interconnected and by the impugned order, the trial Court has allowed the plaintiffs to lead evidence on issue no.7. Learned Counsel further submitted that the defendant in the written statement did not place any reliance upon the report of surveyor Shri Sitakant Kamat, but sought leave to produce the same at later stage, which was allowed by the trial Court and as such, the plaintiffs are entitled to lead evidence in rebuttal to substantiate that the report submitted by Shri Kamat is not correct. Mr. Rivonkar further submitted that Order XVIII, Rule 3, C.P.C. entitles the party beginning to adduce evidence by way of rebuttal to the evidence 7 adduced by the other side on the issues where the burden lies on the other party and the party beginning will then be entitled to reply generally on the whole case. Mr. Rivonkar further submitted that the plaintiffs can lead rebuttal evidence not only to rebut the evidence led by the defendant on the issues, the burden of which lies on him, but also to rebut the evidence which the defendant has led to rebut evidence led by the plaintiffs on the issues, the burden of which lay on the plaintiffs. He further submitted that even in terms of Order VII, Rule 14, C.P.C., the plaintiffs are entitled to rely upon the documents not relied upon initially in the plaint and the trial Court is entitled to grant leave to produce the documents at subsequent stage also. In support of his submissions, Mr. Rivonkar placed reliance upon the following judgments : (i) M/s. Punjab Steel Corporation and others Vs. M.S.T.C. Ltd.; AIR 2001 Punjab and Haryana 331. (ii) Vitorino Rodrigues and others Vs. Smt. Nirmalabai Shivajirao Dessai (Deceased) through L.Rs.; (2010)6 All MR 208. 8. I have carefully considered the rival submissions and perused the record and the judgments relied upon. 8 9. In view of the rival submissions, the question which arises for consideration is whether the trial Court has jurisdiction to allow the application dated 26th August, 2010 filed by the plaintiffs and permit the plaintiffs to produce the inspection report and the plan prepared by Shri Dhuri, Valuer. 10. In order to appreciate the rival submissions, it would be appropriate to quote the relevant provisions namely Order XVIII, Rule 3, C.P.C. and Order VII, Rule 14 , C.P.C. upon which reliance has been placed. They read thus : Order XVIII, Rule 3 – Evidence where several issues – Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case. Order VII, Rule 14 – Production of document 9 on which plaintiff sues or relies – (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory. 11. In the present case, there is no dispute that by order dated 15th March, 2007, the trial Court allowed the application dated 5th October, 2006 filed by the plaintiffs seeking leave to adduce evidence in rebuttal on the issues cast on the defendant. The trial Court by order dated 15th 10 March, 2007 allowed the application and permitted the plaintiffs to lead evidence by way of rebuttal on those issues, the burden of which is cast on the defendant. It is also quite evident that the application dated 26th August, 2010 was filed by the plaintiffs in view of the liberty granted by the order dated 15th March, 2007. 12. From bare perusal of Order XVIII, Rule 3, C.P.C. it is clear that in a suit where there are several issues, the burden of proving some of which lies on the other party, the party beginning may at his option either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party and in a latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence and the other party may then reply specially on the evidence so produced by the party beginning, but the party beginning will then be entitled to reply generally on the whole case. Indisputably, the defendant initially did not rely upon the evidence of any surveyor to prove his case that there was no encroachment in the property of the plaintiffs. Later on, he sought leave and the said leave was granted and consequently the defendant examined Shri Sitakant Kamat, Surveyor as DW2, who produced plan and report in support 11 of the defendant's case. It is also evident from the record that the plaintiffs sought to place on record report and the plan prepared by Shri Dhuri, Valuer pursuant to the leave granted by the trial Court by order dated 15th March, 2007 by which the plaintiffs were permitted to lead evidence in rebuttal on the issues, the burden of which is cast on the defendant. 13. In the case of P.T. Anklesaria (supra), the learned Single Judge of this Court considered the scope of Order XVIII, Rule 3, C.P.C. and held that in terms of Order XVIII, Rule 3, C.P.C. when the evidence is produced by the defendant on the issues in regard to which the onus lies on him, the plaintiff should first address specially on the evidence led by the defendant, the defendant should then reply specially to the plaintiff's address on that evidence and this should be followed by general address by the defendant on the whole case and by the plaintiff by reply generally on the whole case. The learned Single Judge has interpreted that the words 'reply' in Order XVIII, Rule 3, C.P.C. would mean the right to address argument after the evidence is led by both the parties. The learned Single Judge of Punjab and Haryana High Court in the case of Punjab Steel Corporation (supra) has interpreted the words 'reply' as implying right to 12 lead evidence after the other side has led evidence. With respect, I am in respectful agreement with the view taken by the learned Single Judge of Bombay High Court and as such, unable to concur with the view taken by the learned Single Judge of Punjab and Haryana High Court that words 'reply' would include right to lead evidence. On plain reading of words of Order XVIII, Rule 3, C.P.C., it is clear that there is distinction between producing evidence on the issues and replying 'specially' or 'generally'. Therefore, I am unable to accept the view taken by the Punjab and Haryana High Court in the case of Punjab Steel Corporation (supra). As stated above, the application seeking leave to lead rebuttal evidence was filed by the plaintiffs on the basis of order dated 15th March, 2007. 14. The question, therefore, is whether the evidence sought to be led by the plaintiffs and allowed by the trial Court by the impugned order is in respect of the issues, of which the burden lies on the defendant. According to Mr. Rivonkar, issue nos. 3 and 7 referred to hereinabove, are interconnected and as such, the plaintiffs are entitled to lead evidence of an expert by way of rebuttal. I find myself unable to agree with Mr. Rivonkar. In terms of issue no.3 the burden of proving that in the year 1994, the defendant constructed 13 service entry by encroaching in the plaintiffs' property, lies on the plaintiffs', whereas in terms of issue no.7, the defendant has to prove that vide sale deed dated 11th December, 1987, he purchased the property bearing No.321/8 consisting of a house and store room and garage. In my considered opinion, the two issues cannot be said to be interconnected and it is difficult to accept the submission of Mr. Rivonkar that the evidence sought to be led by the plaintiffs by way of rebuttal is in relation to issue no.7. In my opinion, in case leave is sought by the plaintiffs to lead evidence in rebuttal in respect of the issues, the burden of which is cast on the defendant, the plaintiffs can only lead such evidence in respect of only those issues, the burden of which lies on the defendant. In the present case, the plaintiffs have to prove issue nos.1 to 5 and the defendant has to prove issue nos.6 to 9. As such, the plaintiffs are entitled to lead evidence in rebuttal only in respect of issue nos.6 to 9 in terms of order dated 15th March, 2007. This being the position, I find it difficult to accept the submission of Mr. Rivonkar that the plaintiffs are entitled to lead evidence by way of rebuttal in terms of order dated 15th March, 2007 passed by the trial Court. In so far as the argument of Mr. Rivonkar that since the defendant has led evidence of the expert, which was not initially relied upon by 14 the written statement, the plaintiffs are entitled to lead the rebuttal evidence is concerned, I find it difficult to accept the same. It is also pertinent to note that the plaintiffs in their application dated 26th August, 2010 have specifically mentioned that they wanted to lead evidence in view of liberty granted by the Court to lead rebuttal evidence in terms of order dated 15th March, 2007. 15. The impugned order does not disclose that the trial Court has exercised the discretion in terms of Order VII, Rule 14, C.P.C. upon which reliance has been placed by Mr. Rivonkar. 16. No doubt in terms of Order VII, Rule 14(3), C.P.C., the plaintiff is not entitled to rely upon and produce a document not produced by him or not entered in the list annexed to the plaint without leave of the Court. In terms of Order VII, Rule 14(3), C.P.C., the plaintiff is entitled to produce document at a later stage only after satisfying the Court the reason for not producing the same at the time of filing of the plaint. 17. In the case of Vitorino Rodrigues relied upon by Mr. Rivonkar, learned Single Judge held that power to grant 15 leave to produce document at a later stage has to be exercised in rare cases and not in a routine manner. In the said case, the trial Court had granted leave to the plaintiffs to produce documents at the later stage and the learned Single Judge refused to interfere with such an order considering the facts and circumstances of the case. The ratio of the said judgment also does not help the plaintiffs. 18. In view of the above discussion, in my considered view, the trial Court was not justified in allowing the plaintiffs to rely upon and produce the report and the plan prepared by Shri S. A. Dhuri. Therefore, the impugned order dated 23rd September, 2010 passed by Ad hoc Civil Judge, Senior Divison, 'A' Court, Mapusa deserves to be quashed and set aside and is hereby quashed and set aside. Considering the facts and circumstances of the case, the parties are directed to bear their own costs. 19. Interim order dated 7th October, 2010 stands vacated. Parties to appear before the trial Court on 24th January, 2011 at 10.00 a.m. The trial Court to dispose of the suit in accordance with law. A. P. LAVANDE, J. SMA