1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 666 of 2008 1. Smt. Sunita Shyam Naik, widow of Sham Laxman Naik, of major age, residing at H. No.1546, Char Rasta, Nagarcem, Canacona, Goa. 2. Shri Samir S. Naik, son of Shyam Laxman Naik, businessman and his wife 3. Mrs. Smita Samir Naik, of major age, employed, Both residing at H. No. 1546, Char Rasta, Nagarcem, Canacona, Goa. .. Petitioners. Versus 1. Shri Abhinay Jairam Desai son of Jairam Desai, aged about 49 years, businessman, and his wife 2. Smt. Arti Abhinay Desai, daughter of Sharad Paigankar, aged about 40 years, housewife, Both usually residing at 31, Tejpal Building, Bhaidas Maganlal Path, N. S. Patkar Marg, Mumbai 400 007. .. Respondents Mr. D. J. Pangam, Advocate for the petitioners. Mr. Sudin Usgaonkar, Advocate for the respondents. Coram :- A. P. LAVANDE, J. Date :- 25 th August, 2010 ORAL ORDER : Heard Mr. Pangam, learned Counsel for the 2 petitioners and Mr. Sudin Usgaonkar, learned Counsel for the respondents. 2. By this petition under Article 227 of Constitution of India, the petitioners have challenged the order dated 18th June 2008 passed by the Civil Judge, S.D.,Margao in Special Civil Suit No.36/2002/A allowing the application dated 17th January, 2007 filed by the respondents seeking permission to lead evidence only in respect of the issue No.3A and reserving their right to lead rebuttal evidence in respect of the other issues. The petitioners are the defendants and the respondents are the plaintiffs in the above referred suit. 3. The respondents filed the above referred suit against the petitioners seeking relief of injunction. The defendants filed written statement opposing the claim of the plaintiffs. They made claim of adverse possession and further stated that all the structures existing in the suit property were constructed by them and the value of the structures constructed was more than the value of the suit land. Initially, on the basis of the pleadings of the parties, the learned Judge framed four issues. Thereafter, the issues were recast on 22nd July, 2003. The learned Judge framed the following issues : 3 “1. Whether the defendants prove that they are adversely in possession of the suit property for last more than 40 years ? 2. Whether the defendants prove that all the structures existing in the suit property have been constructed by the defendants ? 3. Whether the defendants prove that the value of the construction – structures and plantation carried out by them in the suit property is more than the value of the suit land ? 4. What reliefs ? What order ?” 4. The petitioners herein challenged the recasting of the issues by filing W.P. No.395/2003, which was disposed of by this Court by the order dated 11th August, 2006. The learned Single Judge of this Court held that in view of the pleadings of the parties, the following issue No.3A arose in the matter. 3A- Whether the plaintiffs prove that they are entitled to a decree of permanent injunction as prayed ? 5. In the meantime, the evidence of the plaintiffs 4 was partly recorded. The record discloses the evidence of the plaintiffs was recorded. The record also discloses that the plaintiffs had initially filed an application seeking leave to lead evidence in rebuttal, which was dismissed by the trial Court by order dated 11th April, 2007. The said order was also challenged by the plaintiffs by filing writ petition No.477/2007, which was disposed of on 5th June, 2008. By the said order, the order dated 11th April, 2007 was set aside and the trial Court was directed to decide the application of the petitioner in the light of Order XVIII, Rule 3 of C.P.C. Pursuant to the said order, the impugned order dated 18th June, 2008 was passed by the learned trial Judge. 6. Mr. Pangam, learned Counsel appearing for the petitioners submitted that the respondents / plaintiffs having led evidence on all the issues, the learned trial Judge ought not to have permitted the plaintiffs to lead evidence by way of rebuttal on issue Nos. 1 to 3, the burden of proving the said issues lay on the defendants. He further submitted that the provisions of Order XVIII, Rule 3 are not attracted when the evidence to be led by the parties overlaps and the order XVIII, Rule 3 is attracted when there are only distinct issues in which the parties have to lead distinct evidence. According to Mr. Pangam, having regard to the case set up 5 by the defendants, the learned trial Judge erred in permitting the plaintiffs to lead evidence in rebuttal and since the learned trial Judge has exercised jurisdiction illegally, the impugned order is liable to be set aside. 7. I have considered the rival submissions and perused the record carefully. 8. Perusal of the record discloses that the defendants, inter alia, have set up defence of adverse possession and claimed that the structures have been constructed by them in the suit property; and further that the costs of the said construction is much more than the value of the suit property. In this factual background, I am unable to accept the submission of Mr. Pangam that the issues in the suit are overlapping and, therefore, the learned trial Court ought not to have permitted the plaintiffs to lead evidence in rebuttal on issue Nos. 1 to 3. Having regard to the nature of the issues framed, I do not find any perversity or illegality having been committed by the learned trial Judge in permitting the plaintiffs to lead evidence on issue No.3A with liberty to lead evidence in rebuttal only after the defendants lead evidence on issue Nos. 1 to 3. In any case, in my opinion, no serious prejudice will be caused to the 6 petitioners/ defendants in the event the impugned order is not quashed and set aside. In my considered opinion, this is not fit case in which this Court should exercise extra-ordinary jurisdiction under Article 227 of the Constitution of India. 9. In view of the above, I find no merit in the present writ petition. The petition is, therefore, dismissed. A. P. LAVANDE, J. SMA