Allowed¶27

Prakash v. Khalap and Anr. v Rawloo (Pradip) v Khalap

Bombay HC16 Sept 2025WP/361/2025

Case brief

AI extract

What is this about?

Goa writ petition 2025:BHC-GOA:1731; WP 361/2025; Valmiki Menezes J; competence of advocate to depose as witness; privileged communication; affidavit in evidence Exhibit C-47; objection application Exhibit D-49 dated 04.05.2024; interplay of Order 6 Rule 16 CPC (rejection of pleadings) and Section 151 CPC (inherent powers); nomenclature versus substance of an application; Civil Judge Senior Division Mapusa; Special Civil Suit No.27/2020/C; quashing of trial court order; remand for fresh decision on merits.

What did the court decide?

Rule made absolute; impugned order dated 06.05.2025 quashed and set aside; Trial Court directed to decide the Defendants' application at Exhibit D-49 dated 04.05.2024 on its own merits after considering rival contentions; all contentions of the parties left open. ¶27

Prakash v. Khalap and Anr. Vs Rawloo (Pradip) v. Khalap — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the Trial Court's order rejecting the Defendants' application (Exhibit D-49) challenging the competence of a witness — claimed to be an Advocate who had appeared for the Defendants — to have his affidavit in evidence (Exhibit C-47) taken on record could be sustained, where the Trial Court dealt with the application solely as one under Order 6 Rule 16 CPC and failed to address its substance invoking Section 151 CPC.

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Court's answer

The nomenclature of an application is irrelevant; the Court must deal with the substance of the application.

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Ratio / Principle

The Trial Court erred in proceeding on the assumption that the Defendants' application was under Order 6 Rule 16 CPC merely because it was styled that way; the application also invoked Section 151 CPC, those objections were not addressed, and the dismissal rested on a technicality.

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Key takeaways

The impugned order dated 06.05.2025 cannot be sustained and is quashed and set aside.ratio¶26
The Trial Court shall reconsider the Defendants' application at Exhibit D-49 dated 04.05.2024 on its own merits and pass orders after considering the rival contentions of the parties.ratio¶26

Detailed headnote1 paragraphs

High Court of Bombay at Goa (Valmiki Menezes, J.), Writ Petition No.361 of 2025 — challenge to order dated 06.05.2025 of the Civil Judge Senior Division, Mapusa in Special Civil Suit No.27/2020/C rejecting the Defendants' application at Exhibit D-49, whereby they objected to the taking on record of an affidavit in evidence (Exhibit C-47) of a witness claimed to be an Advocate who had appeared for the Defendants under privilege — Trial Court dismissed the application on the view that Order 6 Rule 16 CPC (rejection of pleadings) applied — Held: the nomenclature of an application is irrelevant and the Court must deal with its substance; the application also invoked Section 151 CPC and those objections were never addressed, the dismissal resting on a technicality — impugned order quashed and set aside — Trial Court to decide Exhibit D-49 dated 04.05.2024 afresh on its own merits after hearing the rival contentions — Rule made absolute — all contentions of the parties left open.

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2025:BHC-GOA:1731

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38 WP 361-2025

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Jose

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.361 OF 2025

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Mr. Prakash V. Khalap, Son of Vaikunth Khalap, Indian National, Aged about 76 years, Married, Business, R/o H. No. 431/1 Waigan Wado, Nachinola, Bardez, Goa. 403508

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Mrs. Gulab Prakash Khalap, Wife of Prakash V. Khalap, Indian National, Aged about 68 years, married, Housewife, R/o H. No. 431/1 Waigan Wado, Nachinola, Bardez, Goa. 403508 ... Petitioners.

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Versus

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Mr. Rawloo (Pradip) V. Khalap, Son of Vaikunth Khalap, Indian National, Aged about 73 years, Married, Business, R/o H. No. 192, Carmarkhazan, Pedem, Mapusa, Bardez, Goa. Presently residing at 9372, FOLKSTONE CIR Huntington Beach, CA 92646 U. S. A.

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... Respondent.

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Mr. Neelesh Takkekar with Ms. Tanvi Naik, Advocates for the Petitioner.

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Mr. S. Karpe with Mr. Anand Shirodkar, Advocates for the Respondent.

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CORAM: VALMIKI MENEZES, J. DATED: 16^th September, 2025

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Page 1 of 3

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16^th September, 2025

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38 WP 361-2025

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ORAL JUDGMENT:

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1. Registry to waive office objections and register the matter.

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2. Rule. Rule made returnable forthwith. With the consent of the parties, petition is disposed of finally.

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3. The order impugned in this petition is dated 06.05.2025 passed by the Civil Judge Senior Division, Mapusa in Special Civil Suit No.27/2020/C, rejecting the application at Exhibit D-49. This application was filed by the Defendants opposing taking on record an affidavit in evidence which was marked Exhibit C-47, filed by a witness, who the Defendant claims was an Advocate who appeared for the Defendants and who had a privileged communication with the Defendants. The application basically challenges the competence of the witness as an Advocate to depose in the matter.

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4. The Trial Court, whilst considering the application, unfortunately has proceeded on the erroneous assumption that the application was under Order 6 Rule 16 CPC, since it was styled in that fashion. It is trite law that the nomenclature of an application is irrelevant, and the Court has to deal with the substance of the application. In the present case, the application also invokes powers under Section 151 CPC and sought to object to the affidavit of the said witness being taken on record and evidence being led by the said

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Page 2 of 3

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16^th September, 2025

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38 WP 361-2025

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witness for reasons stated in the said application. These have not been addressed by the Trial Court and the application has been dismissed on a technicality that the provisions of Order 6 Rule 16 CPC apply to rejection of pleadings.

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5. In that view of the matter, the impugned order cannot be sustained and is, therefore, quashed and set aside. The Trial Court shall now consider the application at Exhibit D-49 dated 04.05.2024 filed by the Defendants on its own merits and pass orders after considering the rival contentions of the parties of the same.

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6. Rule is made absolute in the above terms.

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7. All contentions of the parties are left open.

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VALMIKI MENEZES, J.

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Page 3 of 3

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16^th September, 2025

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Signed by: JOSE FRANCISCO DSOUZA Designation: Personal Assistant Date: 17/09/2025 14:54:11

Prakash v. Khalap and Anr. v Rawloo (Pradip) v Khalap

Case brief

What is this about?

What did the court decide?

Prakash v. Khalap and Anr. v Rawloo (Pradip) v Khalap

Case brief

What is this about?

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What the court decided

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Procedural history

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