1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.599 OF 2003 IN MISCELLANEOUS PETITION NO.18 OF 1992 IN PETITION NO.597 OF 1990 WITH NOTICE OF MOTION NO.953 OF 2004 AND NOTICE OF MOTION NO.1740 OF 2004 IN APPEAL NO.599 OF 2003 --- Mrs.Colette Marie Louis. ...Appellant vs. 1.Doric Peter Desouza & others. ...Respondents --- Dr.Virendra Tulzapurkar, Sr.Advocate with A.L.Thakkar, U.Surya i/b. M/s.Thakkar & Co., for appellant. Ms.R.C.Nichani i/b. M/s.Madekar & Co., for Respondent no.1. Mr.R.D.Dhanuka, for Respondent no.3. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 22nd January, 2009. 2 P.C.:- 1. By this appeal the appellant challenges the order dated 17.10.2002, 18.10.2002, 21.10.2002, 22.10.2002 and 25.10.2002 passed by the learned Single Judge of this Court in Miscellaneous Petition no.18 of 1992. That petition was filed by the present appellant for revoking letters of administration of the property and credits of John Cajetan DeSouza @ John Cajetan Desouza. A petition for letters of administration of the abovenamed deceased was filed by respondent no.1. The petitioner was seeking revocation of grant of letters of administration on the ground among others that the deceased has not died intestate and he had left a Will behind. In view of the order that we propose to make, the following facts are relevant:- Admittedly when the evidence was led by the parties, Will of the deceased which was propounded by the appellant dated 25.12.1962 was produced by the 3 appellant. An objection was raised to that Will being admitted in the evidence and therefore, it was marked “X” for the sake of identification only. Thereafter, the parties were heard by the learned Judge and on 8.7.1998 overruling the objection to the admission in evidence of that document, that document was admitted in the evidence with the rider that now that the document has been admitted in evidence, the other side can lead rebuttal evidence and on the basis of rebuttal evidence, the document can be de- exhibited. In all 14 issues were framed by the Court, but there was no issue framed as to the locus standi of the appellant in filing petition for revocation. Admittedly, the matter was heard by the learned Judge on 5.10.2002 and the matter was closed for judgment. It appears from the judgment that while the learned Judge was dictating judgment in the chamber on 17.10.2002 she found that elaborate issues have been framed and though the contention was raised on behalf of the respondents that the petitioner has no locus standi to file petition for revocation, the issue of his locus standi to maintain the petition has not been framed. Therefore, on 17.10.2002 in the 4 process of dictating judgment, the learned Judge framed an additional issue as to the locus standi of the petitioner to file petition and without telling the parties that she has decided to frame an additional issue, and without giving the parties an opportunity to lead any evidence if they so chose, she proceeded to decide the issue holding that the petitioner has no locus standi to maintain the petition. In the process of writing the judgment on 22.10.2002, the learned Judge has also made an order de-exhibiting the document which had been admitted in the evidence. The reasons given by the learned Single Judge for de-exhibiting the document are found in paragraph 147. It reads as under:- “147. Hence, so far as the Petitioner is concerned, for the reasons stated hereinabove along with the inconsistent and contradictory evidence of this witness, no reliance can be placed on her evidence to support her testimony to the effect that the 1st Respondent had the knowledge either of the Will of his deceased father J.C.D'Souza or the Deed of Assignment. No doubt, the Will has been brought on record in course of 5 evidence of the Petitioner, but the fact remains that considering the inconsistent, contradictory and shifting evidence of the Petitioner as and when it suits her, and particularly in view of the fact that the petitioner has not been able to prove the contents of the said Will or that the same has come from proper custody i.e. the Petitioner, being the grand daughter of the deceased J.C.D'Souza, I am of the opinion that the Petitioner has failed to establish the fact that the Will has come from proper custody and the same is, therefore, required to be de- exhibited. Hence, the Will of deceased J.C. D'Souza is de-exhibited.” Perusal of the above quoted paragraph no.147 shows that the learned Single Judge has de-exhibited the document and excluded it from the evidence because of inconsistency found by the learned Single Judge in the evidence of the appellant and not because of rebuttal evidence led by the respondents. 2. We have heard the learned Counsel appearing for both the sides. We find that the order made by 6 the learned Single Judge de-exhibiting the document which was already admitted in the evidence, not on the basis of rebuttal evidence led by the respondents as was said in the order dated 8.7.1998, but on the basis of alleged inconsistency found by the learned Single Judge in the evidence of the appellant, is improper and violative of principles of natural justice. In our opinion, minimum that the learned Single Judge should have done before excluding the document from evidence, is to put the appellant on notice of her intention to exclude the document from evidence. Same is the case with the additional issue as to the locus standi of the petitioner to maintain revocation petition. When the parties were being heard by the learned Single Judge, at that stage the learned Single Judge could have framed additional issue and could have given an opportunity to the petitioner on whom by that issue burden of proof is placed, to lead additional evidence if he so desires, because it is only by additional issue no.1A the burden of proof has been placed on the petitioner of proving that he has locus standi to maintain the petition for revocation of the letters of 7 administration. Parties led evidence on the basis of the issues that had framed and attempted to discharge the burden placed by the issues on them, therefore, when the Court decided to frame an additional issue, an option will have to be given to the parties to lead additional evidence and then it is for the parties to decide whether they want to lead additional evidence or not. But Court cannot, behind the back of the parties, frame additional issue and proceed to decide it. Admittedly, the matter was heard on 5.10.2002 and at that time no indication was given to the parties that additional issue was to be framed with regard to the locus standi of the petitioner to file petition for revocation. In our opinion, the procedure that has been followed by the learned Single Judge is contrary to the principles of natural justice, and therefore, the following order is required to be made:- (i) The judgment dated 17.10.2002, 18.10.2002, 21.10.2002, 22.10.2002 and 25.10.2002 passed in Miscellaneous Petition no.18 of 1992 is set aside. Miscellaneous Petition no.18 of 1992 is 8 remitted back. It is made clear that before the learned Judge, the parties shall be at liberty to make an application for framing any additional issue. If such an application is made, the learned Judge shall deal with it in accordance with law and shall make appropriate order thereon. (ii) The respondents shall be at liberty, if so advised, to make an application for excluding document of Will from the evidence. (iii) Interim order that was admittedly operating during the pendency of the appeal shall continue to operate during the pendency of miscellaneous petition before the learned Trial Judge. Appeal disposed of. No order as to costs. In view of the aforesaid order, notice of motion no.953 OF 2004 and Notice of motion no.1740 of 2004 do not survive for consideration, and disposed of as such. 9 (D.K.DESHMUKH, J.) (A.A.SAYED,J.) ---