Allowed

Rajashri @ Rajani Manohar Naik Parulekar and 4 Ors., v. Maria Elsa De Noronha Wolfango De Silva (Since Dec.) through Lr'S

Bombay HC24 Sept 2013WP/571/2012

Case brief

AI extract

What is this about?

The High Court at Goa allowed a writ petition under Article 226 of the Constitution. It held that issues no. 5 and 6, regarding court fees and necessary parties, lacked corresponding pleadings in the defence. Consequently, these issues were deleted from the framed issues by the trial court order.

What did the court decide?

Deleted issues no. 5 and 6 regarding court fees and necessary parties; order corresponding to impugned order made absolute.

Rajashri @ Rajani Manohar Naik Parulekar and 4… — Civil Procedure and Limitation | Bombay HC (2013)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 571 OF 2012

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RAJASHRI @ RAJANI, d/o Manohar Naik Parulekar, married, to

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MR. UMESH DAMODAR BHAKTA, both major of age, r/o Mapusa, Bardez, Goa.

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GEETANJALI, d/o Manohar Naik Parulekar

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SAINATH PATKAR (since deceased), through legal representatives:

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a) RAHUL SAINATH PATKAR

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b) NATASHA SAINATH PATKAR, r/o Hill Crown Apartments, Feira Alta, Mapusa, Goa.

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SITA MANOHAR NAIK PARULEKAR, spinster, d/o Manohar Naik Parulekar, r/0 Mapusa, Goa. ….. Petitioners

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VERSUS

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MARIA ELSA DE NORONHA WOLFANGO DE SILVA, widow of Fernando Bernardo de Noronha Wolfango da Silva, r/o Sawan, Mayem,

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Bicholim, Goa (since deceased) through legal representatives

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SHRI ANTONIO S.C. PEREIRA

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MRS. LUCIANA PEREIRA, Both r/o Sawan, Mayem, Bicholim, Goa. ….. Respondents

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Shri J. P. Mulgaonkar, with Mr. J. J. Mulgaonkar, Advocates for the Petitioners.

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Mr. S. G. Bhobe with Ms. N. Pimenta, Advocates for Respondent no.1(a).

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DATE: 24TH SEPTEMBER, 2013.

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ORAL JUDGMENT:

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Rule. With the consent of the Learned Counsel for the parties made returnable forthwith and heard.

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The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 15/10/2011 passed by the Civil Judge, Senior Division at Panaji in Special Civil Suit No.342/2000/A, by which order the application dated 19/7/2011, Exhibit 96 filed by the defendants came to be allowed and the issues in question came to be re-casted in terms of the issues that were appearing in the said application.

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It is not necessary to go into unnecessary details but suffice it to say that the suit is at this stage where the evidence of the plaintiffs i.e. the petitioners is complete and defendants' first witness is under cross-examination. Though the Learned Counsel, Mr. Mulgaonkar for the petitioners has sought to raise contentions against the issues that are framed, pursuant to the impugned order which contentions are based on the fact that the application filed by the plaintiff for striking off the issues no.2 and 4 of the issues as framed on 29/09/1997 was allowed and also on the fact that there were no pleadings in respect of issues no.5 and 6. In my view, it is not necessary to go into the said contentions considering the stage at which the suit is at present. However, it would be relevant to refer to the said issue nos.5 and 6, as framed by the Trial Court by the impugned order which for ready reference are reproduced herein under:

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Whether the plaintiffs prove that they have

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paid the appropriate court fees as per the valuation of the suit and in terms of law?

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Whether the plaintiffs prove that he

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plaintiffs have joined all the necessary parties in

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the suit?

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Insofar as the issue no.5 is concerned, the said issue revolves round the valuation of the suit namely whether appropriate court fees have been paid in terms of the law applicable. Insofar as the issue no.6 is concerned, the same is as to whether the plaintiffs have joined all the necessary parties in the suit. Insofar as the said two issues are concerned, there are no pleadings to the said effect in the written statement filed by the defendants. Secondly, insofar as issue no.6 is concerned, the Trial Court has wrongly placed the burden on the plaintiffs, which burden has to be on the defendants. Be that as it may, since there are no pleadings giving rise to the said two issues, the said issue nos.5 and 6 would accordingly have to be deleted and are deleted from the issues framed by the Trial Court by the impugned order.

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The Learned Counsel, Shri S.G. Bhobe, appearing for respondent no.1 (a) fairly concedes to the said position. The Writ Petition is accordingly allowed. Resultantly, the issue nos.5 and 6 as indicated above would stand deleted. The Trial Court would adjudicate upon the suit on the basis of the deletion of the said issues.

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Rule is accordingly made absolute in the aforesaid terms with parties

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to bear their own costs.

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R. M. SAVANT, J.

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AP/-

Rajashri @ Rajani Manohar Naik Parulekar and 4 Ors., v. Maria Elsa De Noronha Wolfango De Silva (Since Dec.) through Lr'S

Case brief

What is this about?

What did the court decide?

Rajashri @ Rajani Manohar Naik Parulekar and 4 Ors., v. Maria Elsa De Noronha Wolfango De Silva (Since Dec.) through Lr'S

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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