Roque Remedious Fernandes Thr Poa Guilford Fernandes v. Anthony Marcellino Barretto And ANR

Shakuntala

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.43 OF 2024 Mr. Roque Remedious Fernandes, through his Power of Attorney holder Mr. Guilford Fernandes, s/o Mr. Pedro Fernandes, aged 42 years, businessman, Indian National, r/o H.No.333, Cansaulim, Goa.

... PETITIONER

Versus

1. MR. ANTHONY MARCELLINO BARRETTO, Son of Mr. Gabriel A. E. Barretto, Major of age, Indian National, Resident of H.No. 399, Behind Tita Maria Apt. Mangor Hill, Vasco Da Gama, Goa.

2. MRS. MAURA OLIVIA PEREIRA ALIAS MOURA OLIVIA BARRETTO, w/o Mr. Anthony Marcellino Barretto, major of age, r/o H.No. 399, Behind Tita Maria Apt. Mangoor Hill, Vasco Da Gama, Goa.

... RESPONDENTS Mr. Athnain Naik, learned Advocate for the Petitioner. None present for the Respondents.

CORAM: BHARAT P. DESHPANDE, J.

DATED : 10th January, 2024 ORAL ORDER 1.

Heard Mr. Naik learned Advocate appearing for the Petitioner.

2.

By way of the present petition, two orders passed by the learned Trial Court are challenged. The rst order dated 15.09.2023 is the rejection of the application for production of additional documents. The second order is also of the same date but in connection with rejection of application led under Section 45 of the Evidence Act.

3.

Mr. Naik would submit that the Plainti,/Petitioner led the suit for declaration of the Sale deed dated 30.12.2013 as null and void thereby transferring the suit .at in the name of Defendant No. 2 and Defendant No. 1 using forged Power of Attorney. He would submit that during the cross examination of Defendant No. 1, the Plainti, wanted to produce certain documents which were obtained under RTI. Such application has been rejected by the Trial Court. He would further submit that since the claim of the Plainti, is that the signature of the Plainti, was forged on the Power of Attorney, it is necessary to take specimen signatures of the Plainti, and the Notary and to be forwarded for the opinion of the Government Examiner. He admits that the Notary Advocate, Mr. Albino Vales has expired. However, the signature of the Plainti, could have been obtained for the purpose of referring the

Power of Attorney at exhibit 42 to the Government Examiner. 4.

The rst contention with regard to production of documents, the application led by Plainti, is admittedly at the stage of cross examination of DW-1. The documents referred in exhibit 102 are the documents with regard to some Sale deeds, A8davit, Construction licenses, statements of some of the witnesses and receipts; except the document at serial no. 1 i.e. reply from the Village Panchayat dated 11.04.2023, all other documents are with regard to the permission issued by the Planning Authorities, Occupancy Certicates, Completion Certicates, etc. 5.

The learned Trial Court by a detailed order observed that rst of all the documents obtained under RTI and found from serial no. (a) to (f) in the application are in respect of a di,erent property which is not the subject matter of the suit. Similarly, it is observed that some of the documents listed in the said application are even prior to the date of ling of the suit and no justication is given by the Plainti, as to why these documents are not placed along with the plaint or before the settlement of issues. The learned Trial Court has observed that some of the documents are not relevant for the issue involved in the suit. Whereas, in connection with other

documents, there is no su8cient reasons as to why these documents were not placed at the time of ling of the suit. 6.

Such ndings are neither perverse nor illegal so as to interfere in the Supervisory Jurisdiction of this Court. It appears that the Plainti, is only trying to prolong the matter by ling and producing documents which are not relevant for the issue involved in the suit.

7.

The second application is under Section 45 of the Evidence Act. It is the contention of the Plainti, that the Power of Attorney at exhibit 42 dated 14.08.2002 is a forged document. The Plainti, claimed that he never executed such documents in favour of Defendant No. 1.

8.

After ling of the written statement wherein the Defendant No. 1 categorically denied the contention of the Plainti,, issues were framed and thereafter the Plainti, stepped into the witness box. The evidence of the Plainti, is over and now the matter is xed for Defence Evidence. At this stage, the application is led for obtaining specimen signature of the Plainti, and sending the original Power of Attorney for examination of an expert. 9.

It is admitted fact that the Notary before whom such

document was executed has expired. Thus the signature of the Notary cannot be obtained for examination.

10.

The learned Trial Court by giving reasons from paragraph no. 5 onwards, observed that rst of all such application is led belatedly and that the Court cannot be a party for collection of evidence.

11.

First of all, the Plainti, failed to examine any expert or to rely upon a report of any Handwriting Expert, specically, when his contention from the beginning is that his signature was forged on the Power of Attorney. Now after the Plainti,'s Evidence is over, an application is led, which is apparently for lling up of the lacunas found in the evidence of the Plainti,. 12.

The observations of the learned Trial Court while rejecting the application under exhibit 103, therefore cannot be faulted with. The Petitioner failed to demonstrate any illegality or perversity in the Impugned Orders.

13.

Accordingly, there is no substance in the entire petition. The same stands dismissed. No order as to cost.

BHARAT P. DESHPANDE, J.