Dionisio Sebastiao Cardozo (Dec) Thr. His Lrs Vs Procurador De Communidade De Bambolim and Anr.

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WP No.203/21

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IN THE HIGH COURT OF BOMBAY AT GOA
 WRIT PETITION NO.203/2021

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DIONISIO SEBASTIAO
CARDOZO (DEC) THR. HIS LRs.… Petitioners

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Versus

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PROCURADOR DE
COMMUNIDADE DE
BAMBOLIM AND ANR.

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... Respondents

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Mr. Gaurish Agni, Advocate for the Petitioners.

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Coram:- M.S. SONAK, J.
Date:- 6th July 2021

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P. C.:

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Heard Mr. Agni for the petitioners.

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2.The challenge in this petition is to the order dated 15.02.2021
made by the Additional District Judge-1, North Goa, Panaji (Appeal
Court).

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3.In this case, the Appeal Court, appointed a Commissioner for
identification of the property involved in the matter. The
Commissioner has submitted the report. The appellant through his
advocate made a statement that the appellant is in agreement with the

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WP No.203/21

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report and the plan prepared by the Commissioner.

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4.The Court has called upon the Commissioner to depose in this
matter so that the party, that has objections to the Commissioner's
report gets an opportunity to cross-examine the Commissioner on the
correctness or otherwise of the report submitted. Accordingly, the
petitioners herein, who were the respondents before the Appeal Court
were granted opportunity to cross-examine the Court Commissioner.

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5.At this stage, the petitioners contended that the appellant before
the Appeal Court, who was otherwise agreeing with the
Commissioner's report should either cross-examine the Commissioner
first or forfeit the right of cross-examination or further examination. It
is this contention which was turned down by the Appeal Court vide
order dated 15.02.2021.

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6.Mr. Agni, the learned counsel for the petitioners submits that the
aforesaid situation is akin to a situation where some of the defendants
supported or agreed with the contention of the plaintiff. He submits
that in such a situation such defendants are required to first cross-
examine the plaintiff or plaintiff's witnesses before the contesting
defendants can be called upon to cross-examine. He submits that if
such a course of action is not adopted then, an undue opportunity will
be claimed to plug the loop holes which the contesting defendant is

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WP No.203/21

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able to demonstrate in pursuance of his cross-examination. Mr. Agni
states that he is in a position to circulate judgments in support of this
contention.

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7.According to me, the analogy suggested by Mr. Agni is not quite
apposite in the facts of this case. Therefore, even though there can be
no dispute with the proposition advanced, such a proposition will
really not apply to the peculiar fact situation of the present matter.

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8.This is a case where the Commissioner was appointed by the
Court. The appellants before the Appeal Court made a statement that
they agree with the Commissioner's report and the plan prepared. In
such a situation, there was no point in insisting that the appellants
before the Appeal Court cross-examine the Commissioner in the first
instance. Since, it is the petitioners who had objections to the
Commissioner's report and the plan prepared, the petitioners, as a
measure of fairness and consistent with the principles of natural justice,
were offered an opportunity to cross-examine the Court
Commissioner. It is necessary to note that the Court Commissioner
was not some witness on behalf of any of the parties. Rather, in this
case, the Court Commissioner, was appointed by the Court to assist it
in the proper identification of the suit property and effectively dispose
of the appeal before it. Therefore, the analogy suggested by Mr. Agni,
would not apply to a case of this nature.

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WP No.203/21

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9.The learned Trial Judge has only held that should there be any
discrepancies in the deposition of the Commissioner or should any
clarifications be necessary, the original appellants, can always be
granted an opportunity of re-examination. Having regard to the fact
that the Court Commissioner was not some witness being examined by
the parties and the examination of such Court Commissioner was
basically an exercise in compliance with the principles of natural
justice, it is difficult to say that the scheme as proposed by the
impugned order either violates the provisions of the Evidence Act or
the general practice of examination of witnesses in civil matters.

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10.In any case, an order of this nature can hardly be said to be an
order in excess of jurisdiction to warrant interference under Article 227
of the Constitution of India or to delay the proceedings before the
Appeal Court. The impugned order has been made in Regular Civil
Appeal No.73/1994, which means that such appeal is pending since
the last 27 years or thereabouts. Mr. Agni points out that such
pendency was because the matter was remanded after it was finally
disposed of on the earlier occasion. Be that as it may, the matter relates
to the year 1994 and the jurisdiction under Article 227 of the
Constitution of India need not be exercised to delay the matter even
further.

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11.For all the aforesaid reasons, this petition is dismissed. There

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WP No.203/21

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shall be no order as to costs.

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12. The petitioners to place an authenticated copy of this order before the Appeal Court so that the Appeal Court can proceed to dispose of the appeal in accordance with law at the earliest.

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 M. S. SONAK, J.

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ss*

Dionisio Sebastiao Cardozo (Dec) Thr. His Lrs v. Procurador De Communidade De Bambolim and Anr.

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Dionisio Sebastiao Cardozo (Dec) Thr. His Lrs v. Procurador De Communidade De Bambolim and Anr.

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