With regard to the impugned order passed by the learned Judge dismissing the application for leave to produce the documents, I find under Order 7 Rule 14 of the Civil Procedure Code, the Court can grant leave to the plaintiff to produce documents at the time of the hearing of the suit. In the present case, there was already an averment that the respondents had encroached into the property of the petitioner in the original plaint. To substantiate their claim on that count, it is always open to the petitioner to lead evidence with that regard. The plan sought to be produced apparently depicts the situation at loco with regard to the structures existing in the suit property. As such depiction is in connection with the averments which were in the original plaint filed by the Petitioner, I find that the learned Judge was not justified to pass the impugned order and refuse leave to rely upon the said reports.
IN THE HIGH COURT OF BOMBAY AT GOA
Writ Petition No. 140 of 2013
Decided On: 27.06.2013
Mrs. Vera Lelisa Viegas Pereira Vs. Agnelo Caetano Colaco and Others
Hon'ble Judges/Coram:
F.M. Reis, J.
Citation: 2013(6) ALLMR 347
1. Heard Shri. Shivan Desai, learned Counsel appearing for the Petitioner and Shri Vernekar, learned Counsel appearing for the Respondents. Rule. Heard forthwith, with the consent of the learned Counsel appearing for the respective parties. Learned Counsel appearing for the respondents, waives service.
2. The above petition challenges the orders passed by the learned civil Judge, Junior Division, at Margao, 'E' Court, whereby an application for amendment filed by the Petitioners as well as an application to produce additional documents came to be rejected.
3. Shri. Desai, learned Counsel appearing for the Petitioner, has assailed the impugned order on the ground that the application for amendment was filed by the petitioner on the premise that subsequent to the filing of the suit, the petitioner learnt about the actual extensions carried out by the respondents. Learned Counsel further pointed out that the learned Judge has erroneously dismissed the application on the ground that the petitioners want to wriggle out from a situation where their claim is barred by limitation. Learned Counsel further submits that in the facts and circumstances of the case, the relief sought by the petitioner was, inter aha, for restoration of possession of the suit house occupied by the respondents and, as such, the relief which is sought to be incorporated was in fact part of the relief which was already sought by the Petitioner in the original plaint. Learned Counsel further pointed out that even in the original plaint, there was an averment with regard to the illegal extension carried out by the Respondents. Learned Counsel has taken me through the impugned order dismissing the application for amendment and submitted that the learned Judge has erroneously dismissed such application. With regard to the next impugned order, Shri. Desai, learned Counsel appearing for the petitioner, has pointed out that he has a plan prepared depicting the illegal extension done by the respondents in the suit property. Learned Counsel further pointed out that the respondents are claiming to be Mundkars which contention is disputed by the petitioners. Learned Counsel further submits that the learned Judge has erroneously dismissed the application for production of documents on totally erroneous grounds.
4. On the other hand, Shri. D. Vernekar, learned Counsel appearing for the Respondents, has supported the impugned Order. Learned Counsel further pointed out that the petitioners have not satisfied the proviso to Order VI Rule 17 of the Civil Procedure Code to show any due diligence. Learned Counsel further pointed out that the question of producing the documents would not arise as, according to him, as per the case of the Petitioner themselves, such plan was prepared in the year 2010 while it was being produced in 2011. Learned Counsel further pointed out that this delay has not been explained and, as such, the question of giving any leave to the petitioner to produce such documents would not arise. Learned Counsel has taken me through the impugned order as well as the records and pointed out that no interference is called for in the impugned order.
5. I have considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the records. With regard to the impugned order dismissing the application for amendment, I find that on perusal of the application for amendment filed by the petitioner, there is no averment to show any due diligence on the part of the petitioner in filing such application belatedly as it is not in dispute that the trial of the suit has started. Considering the provision of Order VI Rule 17 of the Civil Procedure Code, I find that on this count alone, the application for amendment deserves to be rejected.
6. Be that as it may, the finding of the learned Judge that the relief sought by the petitioner is barred by limitation cannot, prima facie, be accepted considering that it is not in dispute that the petitioner is the owner of the suit property and the main relief sought in the suit is for restoration of possession. Apart from that, the respondents have not claimed any right by adverse possession.
7. With regard to the impugned order passed by the learned Judge dismissing the application for leave to produce the documents, I find under Order 7 Rule 14 of the Civil Procedure Code, the Court can grant leave to the plaintiff to produce documents at the time of the hearing of the suit. In the present case, there was already an averment that the respondents had encroached into the property of the petitioner in the original plaint. To substantiate their claim on that count, it is always open to the petitioner to lead evidence with that regard. The plan sought to be produced apparently depicts the situation at loco with regard to the structures existing in the suit property. As such depiction is in connection with the averments which were in the original plaint filed by the Petitioner, I find that the learned Judge was not justified to pass the impugned order and refuse leave to rely upon the said reports. The correctness of the said reports would have to be decided only after the respondents are given an opportunity to meet the said reports in accordance with law. Hence, the impugned order refusing leave to the petitioner to rely upon the said reports cannot be sustained and deserves to be quashed and set aside. In view of the above, I pass the following:
ORDER
(I) The impugned Order refusing leave to the petitioner to produce the reports dated 21.05.2010 and 22.04.2011, is quashed and set aside. The petitioners are granted leave to rely upon the said reports.
(II) Needless to say, all objections of the respondents with regard to the correctness of the said reports are left open.
(III) Rule is made absolute in above terms.
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