Case Note & Summary
The petitioner, Confrarias Reunidas Da Igreja De Panjim, represented by its constituted attorney Olavo Dias, filed a writ petition challenging the order dated 19.6.2010 passed by the Civil Judge Senior Division, Panaji in Regular Civil Suit No.64/1997/B. The respondents, Luis Sales De Andrade e Souza and others, had filed the suit seeking a permanent injunction in respect of property bearing chalta nos.138 and 140 of P.T. Sheet No.44 of Panaji City. The defendant (petitioner) contested the suit and relied upon a survey plan and report of surveyor Mr. Ernesto Pais. Evidence was recorded in 2007, and the defendant examined three witnesses. Thereafter, the defendant filed an application dated 5.6.2010 under Order VIII Rule 1A of the Code of Civil Procedure, 1908 seeking to produce a report dated 4.6.2010 prepared by Prazeres A. Gonsalves in respect of the same property. The ground for the application was that Mr. Pais was suffering from Parkinson's disease and was unable to depose before the court. The plaintiffs opposed the application. The trial court dismissed the application on two grounds: first, that the defendant had not produced a medical certificate to prove Mr. Pais's illness, and second, that the two reports were not similar and the defendant was trying to bring in new facts. The High Court heard arguments from Mr. R. Noronha for the petitioner and Mr. Sudin Usgaonkar for the respondents. The petitioner argued that it would be seriously prejudiced if the impugned order was not set aside, as it prevented the defendant from leading evidence. The respondents supported the impugned order. The High Court found that the inability of Mr. Pais to depose due to Parkinson's disease was a valid ground for allowing the production of a substitute report. The court noted that the trial court's approach was too technical and that the petitioner would be seriously prejudiced if not allowed to produce the report. The High Court set aside the impugned order and allowed the application, subject to payment of costs of Rs.1,000 to the respondents. The court directed that the report be produced within two weeks and that the respondents would be entitled to cross-examine the surveyor.
Headnote
A) Civil Procedure - Production of Documents - Order VIII Rule 1A CPC - Substitute Report - The defendant sought to produce a fresh survey report because the original surveyor was suffering from Parkinson's disease and could not depose. The trial court dismissed the application on grounds of lack of medical certificate and dissimilarity of reports. The High Court held that the inability of the witness to depose is a valid ground for allowing production of a substitute document, and the trial court's approach was too technical. The impugned order was set aside and the application allowed subject to costs. (Paras 2-6) B) Civil Procedure - Discretion of Court - Liberal Approach - The court emphasized that in civil matters, a liberal approach should be adopted to allow parties to lead evidence, especially when the inability to produce a witness is beyond the party's control. The trial court's refusal caused serious prejudice to the defendant. (Paras 4-6)
Issue of Consideration
Whether the trial court erred in dismissing the defendant's application to produce a substitute survey report when the original surveyor was unable to depose due to Parkinson's disease.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 19.6.2010, and allowed the application dated 5.6.2010 subject to payment of costs of Rs.1,000 to the respondents. The petitioner was directed to produce the report within two weeks, and the respondents were entitled to cross-examine the surveyor.
Law Points
- Order VIII Rule 1A CPC
- production of documents at later stage
- inability of witness to depose
- prejudice to party
- liberal approach in civil proceedings
