Research › Search › Judgment

Bombay High Court · body

2011 DIGILAW 1178 (BOM)

Carlos Tavora v. Frederick C. DSouza

2011-09-22

F.M.REIS

body2011
JUDGMENT Heard Shri Valmiki Menezes, the learned Counsel appearing for the Petitioner, Shri J. Godinho, learned Counsel appearing for the Respondent no.1 and Shri J. P. Mulgaonkar, learned Counsel appearing for the Respondent no.2. 2. By consent, all the Petitions are taken up together as the Counsel agree that the impugned Orders were passed on the same dates and the Petitioner was seeking similar relief in all the applications on the same ground in respect of the same documents. 3. Rule. Heard forthwith with the consent of the learned Counsel. The Respondents waive service. 4. The above Petitions chal1enge the Order dated 16.07.2011 passed by the Civil Judge, Senior Division at Panaji, whereby an application filed by the Petitioners for leave to rely upon two copies of the Power of Attorneys dated 20.11.1998 and 28.06.1998 in support of the case of the Petitioner came to be rejected. 5. Shri Valmiki Menezes, the learned Counsel appearing for the Petitioners has assailed the impugned Order and pointed out that on perusal of the application dated 08.02.2011, the only reliance sought by the Petitioner was to grant him leave to rely upon the said two Power of Attorneys. The learned Counsel further pointed out that instead of considering whether the Petitioner is entitled for such leave, the learned Judge unnecessarily proceeded to consider whether the Petitioners have made out a case to produce secondary evidence. The learned Counsel further pointed out that as far as his right to adduce secondary evidence is concerned, he would take necessary steps in that direction if so advised at the stage of recording of evidence. The learned Counsel as such pointed out that the learned Judge has exceeded its jurisdiction whilst passing the impugned Order and consequently the same deserves to be quashed and set aside. 6. On the other hand, Shri J. P. Mulgaonkar, the learned Counsel appearing for the Respondent no.2 on perusal of the application filed by the Petitioner fairly conceded that the leave sought by the Petitioner was only to rely upon the said two Power of Attorneys. The learned Counsel further pointed out that there was no application filed by the Petitioner to adduce secondary evidence. 7. The learned Counsel further pointed out that there was no application filed by the Petitioner to adduce secondary evidence. 7. Having heard the learned Counsel and on perusal of the records, I find that the Petitioner in his application dated 10.02.2011, had sought leave of the Court only to rely upon the said two Power of Attorneys dated 20.11.1995 and 28.06 1995. There was no prayer to allow the Petitioner to adduce secondary evidence. Even on perusal of the averments in the said application, nothing in that direction was stated by the Petitioner in the said application. Hence, I find justification in the contention of Shri Menezes, the learned Counsel appearing for the Petitioner that the learned Judge has exceeded its jurisdiction to decide the application on the basis that the Petitioner wanted to adduce secondary evidence on record. Considering the case put forward by the Petitioner in the plaint and on the basis of the defence raised by the Defendant, I find that the documents sought to be relied upon by the Petitioner could be relevant for the purpose of deciding the matter in controversy in the suit. Hence, the Petitioner is allowed to rely upon the said document. But, however, the Petitioner would have to file an appropriate application in case he wishes to lead secondary evidence in respect of the said document at the relevant time and the same shall be decided by the learned Judge after hearing the parties in accordance with law. 8. In view of the above, the impugned Order dated 16.07.2011 which are the subject matter of all the above Petitions are quashed and set aside. The applications filed by the Petitioner seeking leave to rely upon the said two Power of Attorneys is allowed. But, however, the Petitioner is at liberty to file an appropriate application if so advised to lead secondary evidence in respect of the said documents. In case such applications are filed, the same shall be decided by the learned Judge after hearing the parties in accordance with law. 9. The above Petitions are disposed of accordingly with no orders as to costs. 10. Rule is disposed of in the above terms. Ordered accordingly.