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Judgment
A.P. Lavande, J.—Heard Mrs. Linhares, learned Counsel for the petitioner and Mr. Pangam, learned Counsel for the respondents.
Rule. By consent, heard forthwith.
By this petition, the petitioner challenges the order dated 7th July 2010 passed by the Civil Judge, Senior Division, Bicholim in Special Civil Suit No. 20/2004/A by which the application dated 12th April, 2010 filed by the petitioner herein has been partly dismissed.
The petitioner, who is the plaintiff in the above suit, filed an application dated 12th April, 2010 seeking the following reliefs:
(a) To recall its witness PW1 Shri Prakash Naik.
(b) To lead additional evidence by examining more witnesses.
(c) To recall DW1 Laxman Chanekar for purpose of cross examination.
The Trial Judge, by the impugned order, has granted prayer (a) and has rejected prayers (b) and (c).
Mrs. Susan Linhares, learned Counsel appearing for the petitioner states that in view of framing of additional issues pursuant to the order dated 17th / 18th February, 2010 passed by this Court in Writ Petition No. 72/2010, the petitioner / plaintiff is entitled to lead evidence insofar as additional issue No. (ii) directed to be framed by this Court is concerned, the burden of proving which lies on the plaintiff/ petitioner. In so far as the prayer (c) in the said application is concerned, Mrs. Linhares states that she is not pressing the relief.
Mr. Pangam, learned Counsel appearing for the respondents has supported the impugned order and submitted that the plaintiff having already led evidence on the additional issue No. (ii) directed to be framed by this Court in Writ Petition No. 72/2010, no fault could be found with the impugned order.
Having heard the learned Counsel for the parties and having perused the record, I am of the considered opinion that the impugned order to the extent it dismisses the prayer of the petitioner/ plaintiff to lead additional evidence insofar as the additional issue (ii) framed pursuant to the order dated 17th and 18th February, 2010 passed by this Court is concerned, deserves to be quashed and set aside. Once an additional issue was framed pursuant to the directions given by this Court, the plaintiff was entitled to lead additional evidence on additional issue only, since the burden of proving the same lies on the plaintiff/ petitioner. Merely because the petitioner/ plaintiff had not given the names of the witnesses it proposes to examine, the Trial Court could not have rejected the application filed by the plaintiff seeking permission to lead additional evidence.
In view of the above, the petitioner/ plaintiff is permitted to lead evidence regarding the additional issue No. (ii) framed in terms of the order dated 17th and 18th February, 2010 passed by this Court in Writ Petition No. 72/2010. The petitioner/ plaintiff shall submit the list of witnesses it proposes to examine in respect of the said issue within a period of two weeks from today in the Trial Court. The Trial Court shall permit the plaintiff to examine the witnesses on the said issue after the defendants lead their evidence on all the issues.
Mr. Pangam states that the hearing of the suit be expedited since evidence of DW2- the witness of the defendants is partly recorded. The learned Judge shall make an endeavor to dispose of the suit expeditiously. The parties are directed to co-operate with the learned Trial Judge for expeditious disposal of the suit.
In view of the above, rule is made partly absolute to the extent indicated above. There shall be no order as to costs. The interim order dated 21st July, 2010 staying further proceedings in the Special Civil Suit No. 20/2004/A stands vacated. The parties shall appear before the learned Trial Judge either personally or through their advocates on 5th October, 2010 at 10.00 a.m.