WP-328-2025.odt Meena IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.328 OF 2025 Mr. Santosh Chatim @ Santosh Shirodkar S/o late Pundalik Shirodkar, 65 years of age, business, R/o H.no. Khursawado, Colvale, Bardez - Goa. .... Petitioner Versus Mr. Noel Stephen Simoes, S/o Late Joaquim Simoes R/o H.no. G-3, Alvaro pearl, Chogum road, Alto Porvorim, Bardez — Goa. ... Respondent Mr. Kapil Kerkar, Advocate and Ms. Prachi Sawant, Advocate (through VC), Advocate for the Petitioner. Mr. E. Carvalho, Advocate for the Respondent. CORAM:- VALMIKI MENEZES, J. DATED :- 4th August, 2025 ORAL ORDER: 1. Registry to waive oice objection and register the matter. 2. his petition impugns an order dated 30.03.2024 passed by the Civil Judge, Junior Division at Mapusa in Regular Civil Suit No.242/2012/E. By this order, the Civil Court has rejected an 2025:BHC-GOA:1498 WP-328-2025.odt application at Exhibit D-81 of its record which is an application under Order 16 CPC seeking to examine two witnesses whose names were not listed in the list of witnesses to be iled after the issues were framed by the Court. he second impugned order is dated 04.05.2024, closes the evidence of the Defendant on the ground that several opportunities were given to him to lead further evidence. 3. he Petitioner is the Defendant in the aforementioned suit. he Respondent herein is the Plaintif, who has iled the suit seeking a declaration that a Will dated 15.12.1989, purportedly executed by one Wallace Dsouza seeking to be declared null and void. he challenge to the Will, is primarily on two counts, the irst being that, the Will is obtained by fraud and the secondly, that the Will was executed at Mumbai before a Notary, and being an unregistered Will is unenforceable in the State of Goa. By this Will, the suit properties which are the lands under Survey No. 205/23, 205/24, 190/43, 190/46 of village Socorro Bardez-Goa were bequeathed to the Defendant by the said Wallace. 4. After the Plaintif led evidence, the Defendant/Petitioner herein iled his aidavit in evidence and he was cross-examined. On completion of his cross-examination he iled an application at Exh.D-81 under Order 16 CPC, seeking summons to two witnesses named in the application, which he claimed were witnesses to the execution of the aforementioned Will. he Court has rejected this application, primarily on the ground WP-328-2025.odt that there is no cause shown in the application as to why summons to these two witnesses were not sought earlier and further that though their names were, as claimed by the Petitioner, known to them right from the date of iling of the suit, yet were not arrayed as the witnesses on the list of witness of the Defendant after issues were framed. 5. he main contention of Mr. Kapil Kerkar, learned Advocate appearing for the Petitioner was that by passing the impugned order, the trial Court has refused to exercise the powers vested in it under Order 16 to summon witnesses. He further submits that these two witnesses were very material to the decision of the matter, considering that they were witnesses to the execution of the Will in question and would throw light on the ground raised by the Plaintif of fraud. He further submits that there is suicient cause shown in the application for calling these witnesses on summons on completion of the Defendant’s evidence. he petition is opposed by Mr. E. Carvalho, learned Advocate for the Respondent taking support of the indings given by the trial Court in the impugned order. 6. As far as the second impugned order is concerned, the same is a direct efect of the irst impugned order, since, other than the Defendant, the only other witnesses that the Defendant sought to examine are the two witnesses to the execution of the Will, and as such he was unable to lead further evidence. For this reason, the trial Court closed the evidence. In efect therefore, the second impugned order is a fall out of the irst order refusing to issue summons. Page 3 of 6 WP-328-2025.odt 7. Order 16 Rule 1 CPC mandates that after issues are framed and within 15 days thereof, the parties to the suit shall ile a list of witnesses, whom they propose to call, either to lead evidence or to produce documents, and for obtaining summons for such persons for their attendance in Court. Admittedly, in the present case, the Defendant has chosen not to ile any list of witnesses after issues were framed, within the time speciied under Rule 1 of Order 16. Issues were framed on 04.07.2024, after which the Plaintif evidence was concluded on 14.06.2023. he Defendant iled his aidavit-in-evidence in October,2023. Even in the aidavit in evidence, Defendant does not refer to the circumstances under which the Will was executed, he has not stated whether he was personally present nor he has named any witnesses to the execution of the Will. his fact has come on record in his cross- examination on 06.01.2024. 8. Rule 3 of Order 16 empowers the Court to permit a party to seek summons to the witnesses whose name was not arrayed in the list of witnesses under Rule 1 of Order 16 after issues were framed; this power to permit such summons is however to be exercised subject to the party who seeks a summons showing suicient cause for his omission to mention name of such witness in the list to be iled at the stage of settlement of issues. 9. Perusal of the application seeking summons to the witnesses only states that the Defendant intends to examine attesting witnesses to the execution of the Will but does not cite any reasons showing suicient cause for the delay in seeking the summons or to justify the fact why WP-328-2025.odt these witnesses were not arrayed in the list to be iled under Rule 1 Order 16. he application is not even supported by an aidavit of the Defendant but simplicitor seeks summons to be issued to the witnesses, stating that due to the passage of time, the whereabouts of the witnesses were not known, but their addresses were known to the Defendant. Even this reason sounds vague and does not partake of the jurisdictional facts that are required to be stated to enable the Court to exercise powers vested in it to issue notice under Rule 3 of Order 16, despite the witnesses names not being stated in the list of witnesses. 10. Considering the scheme of Rule 3 and Rule 1 of Order 16, the application for seeking summons at Exhibit D-81 is totally devoid of any reasons or facts which constitute suicient cause for the omission in mentioning the names of such witnesses in the original list which was to be iled. In fact, in the present case, there was no list iled at all by the Defendant. Even considering the case made out by the Defendant in his aidavit in evidence and the cross-examination, exercising jurisdiction under Rule 3 of Order 16 would not be justiied in the facts of the present case. he impugned order is therefore passed on correct reasoning and based on the correct provisions of law. No inirmity can be found in the impugned order. 11. In consequence of dismissing the application under Exhibit D-81, the trial Court did give the Defendant an opportunity to lead further evidence, which was also not availed of over two hearings on 30.03.2025 and 18.04.2025 with the Defendant not leading any evidence on those dates. he suit is of the year 2012. Time and again directions are given WP-328-2025.odt to the trial Courts to dispose of suits expeditiously. Considering that the suit is pending for more than 13 years, the second impugned order was quite justiied and does not call for any interference. 12. For the reasons stated above the Writ Petition is dismissed. 13. Considering that all that remains in the suit now is the inal arguments to take place, and judgment and decree to be passed, the trial Court is requested to hear the inal arguments of the parties and to render its judgment and decree thereon, preferably within two months from the passing of this order. It is stated at the bar that the Court to which the suit is assigned is presently vacant and no Presiding Oicer has been appointed; these directions may therefore be followed by the Judicial Oicer, who is assigned charge of ‘E’ Court, Mapusa in which this suit is pending. he parties shall place on record of the Court / Judicial Oicer holding charge of the ‘E’ Court Mapusa an authenticated copy of this order for the Court to act upon the same. VALMIKI MENEZES, J. Signed by: MEENA VISHAL BHOIR Designation: Private Secretary Date: 13/08/2025 15:58:08