Mrs Rita Maria Carvalho (since deceased) through legal heirs Shri Edward Carvalho vs Leo Realtors and Others

A.P. Lavande, J.—Rule. By consent of the learned Counsel heard forthwith.

Heard Mr. Sardessai, learned Counsel appearing for the Petitioner and Mr. Coelho Pereira, learned Senior Counsel for the Respondent No. 1.

By this petition, under Article 227 of the Constitution of India, the Petitioner challenges order dated 12/8/2010 passed by the Civil Judge, Junior Division, Vasco in Regular Civil Suit No. 33 of 1999/D closing the evidence of the Plaintiff.

Perusal of the record discloses that in the course of the evidence of Edward Carvalho, the Constituted Attorney of the original Plaintiff Mrs. Rita Maria Lilia Carvalho expired. Edward Carvalho was deposing as the Constituted Attorney of the original Plaintiff. Thereafter, the legal representatives of Rita Carvalho were brought on record. However, except for Edward Carvalho, none of the other legal representatives could be served and the suit was dismissed in so far as the other legal representatives are concerned.

In view of the above position, Edward Carvalho had the right to examine himself in support of the Plaintiff''s case. Mr. Sardessai, learned Counsel appearing for the Petitioner therefore submitted that on this ground alone the impugned order dated 12/8/2010 closing the Plaintiff''s evidence is liable to be set aside.

Mr. Coelho Pereira, learned Senior Counsel fairly concedes that the impugned order is unsustainable in law.

I find merit in the submission of Mr. Sardessai that in view of the death of Mrs. Rita Carvalho, Edward Carvalho had an independent right to examine himself in support of the Plaintiffs case and therefore the concession made by Mr. Coelho Pereira that the impugned order is unsustainable in law deserves to be accepted.

Mr. Sardessai assures this Court that Mr. Edward Carvalho, Plaintiff No. 1(a) shall fully co operate with the trial court in early disposal of the suit and shall not seek unnecessary adjournments.

In view of the above, the impugned order dated 12/8/2010 closing the evidence of the Plaintiff in Regular civil Suit No. 33/1999/D is quashed and set aside and the Petitioner is permitted to lead evidence in the suit. The trial court shall take into consideration the evidence already led by the Petitioner/Plaintiff No. 1(a) Mr. Edward

Rule is made absolute in the aforesaid terms with no order as to costs.

Interim order dated 23/9/2010 passed by this Court stands vacated.

Parties either personally or through their advocates shall appear before the trial court on 21/12/2010 at 10.00 a.m. Since the suit is of the year 1999, the trial court shall dispose of the suit expeditiously.