1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1444 OF 2010 Stanley J. Creado & Others ...Petitioners vs. Union of India ...Respondent Mr.G.S.Godbole i/b M/s.Purohit & Purohit for the petitioners Mr.S.R.Rajguru for Union of India CORAM :A.S.OKA,J. DATE : MARCH 2, 2010 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. Considering the narrow controversy involved in the petition, the same is immediately taken up for final disposal as the suit is of year 1991. The respondent-Union of India has filed the suit for perpetual injunction restraining the petitioners from carrying out construction work on the suit plot. There is prayer for mandatory injunction enjoining the petitioners-defendants to remove wire fencing up up by them around the suit plot of land. 2 The issues were settled on 17 th November 2009. The suit was placed before the learned trial Judge for recording of evidence on 4 th January 2010. On that day, the learned counsel for the respondent stated before the trial Court that an affidavit in lieu of examination-in- chief was ready but the same was not finalised. The learned trial Judge granted time to the respondent till 20 th January 2010. While granting time, the learned Judge added a note of caution that no adjournment will be granted. It appears that when the suit was called out on 20 th January 2010, the parties and their respective Advocates were absent. The learned Judge recorded that the entire burden has been placed on the petitioners- 2 defendants and the petitioners have not placed any document or evidence on record. Therefore, the learned trial Judge passed an order closing evidence of both the petitioners and the respondent. Thereafter, he proceeded to adjourn the suit for hearing the arguments. 3 A Notice of Motion was tendered by the petitioners. Prayer clause (a) of the Notice of Motion was for condonation of the absence of the petitioners and their Advocate as the name of the concerned Advocate was not appearing on the cause list. The second prayer was for recasting or amending the issues as set out in the schedule. The third prayer was for setting aside the aforesaid order dated 20 th January 2010 and the last prayer was for directing the respondent to file affidavit of documents. By order dated 6 th February 2010, the learned trial Judge declined to register the Notice of Motion. The learned trial Judge observed that the present issue no.3 will suffice the purpose about the entitlement of the plaintiff to the reliefs claimed . The learned trial Judge dismissed the unregistered Notice of Motion. 4 The challenge in this Writ Petition under Article 227 of Constitution of India is to the orders dated 20 th January 2010 and 6 th February 2010. 5 The Roznama of the suit of 4 th January 2010 shows that the respondent-plaintiff was desirous of leading evidence by filing an affidavit in lieu of examination- in-chief of its witness. Therefore, the respondent had not exercised an option under Rule 3 of Order XVIII of the Code of Civil Procedure,1908 of reserving its right to lead evidence in rebuttal. In view of what was recorded in order dated 4 th January 2010, on 20 th January 3 2010 there was no occasion for the petitioner to file an affidavit in lieu of evidence on record. On that day, the suit was fixed for recording of evidence of the witness of the plaintiff. Even though none appeared for the petitioners, at highest the learned trial Judge could have closed the evidence of the respondent and kept the suit for recording of evidence of the petitioners. However, that was not done and the trial Court proceeded to close the evidence of both the parties and fix the suit for arguments. This order will cause prejudice to both the sides as even the respondent-plaintiff will be prevented from adducing evidence. 6 In the unregistered Notice of Motion taken out by the petitioner one of the prayers was for modification/recasting of the issues. Under Rule 5 of Order XIV of the said Code, the trial Court has a power to amend the issues or to frame additional issues at any stage before passing the decree. From the impugned order it is clear that the said prayer has not been considered on merits and without ordering registration of the Notice of Motion the same has been dismissed by passing a very cryptic order. Before the parties adduce evidence, the prayer (b) in the Notice of Motion will have to be considered and decided by the trial Court. The learned counsel for the respondent contended that as the entire burden is on the petitioners, they will have to adduce the evidence. If the respondent desires to lead evidence by way of rebuttal, the respondent-plaintiff can always take recourse to option provided under Rule 3 of Order XVIII of the said Code. 7 Hence, the petition is disposed of by passing the following order : 4 i) Impugned order dated 20 th January 2010 is quashed and set aside. ii)Impugned order dated 6 th February 2010 is quashed and set aside and the Notice of Motion is restored. The Notice of Motion shall be registered. iii)It is made clear that only prayer (b) of the notice of motion will be considered by the trial Court on merits. iv)The trial Court shall consider and decide the prayer (b) of the Notice of Motion after hearing both the sides. The Notice of Motion shall be decided as expeditiously as possible and preferably within a period of 8 weeks from today. v) Considering the fact that the suit is of the year 1991, the suit will be decided expeditiously. vi)All contentions of the parties on merits of the suit and Notice of Motion are kept open. vii)Writ Petition is allowed in above terms. JUDGE