JUDGMENT:- This first civil appeal is directed against the judgment and order of the Senior Civil Judge, Bicholim dated 15-7-1970. The respondents/plaintiffs filed a suit against the appellant/defendant for possession, mesne profits and damages. On March 10th, 1970, the plaintiffs closed their case. The learned Senior Civil Judge asked the defendant to go into the box to give evidence. The defendant declined to go on the allegation that he could not speak properly because he had a sore throat, though he talked to the Court and replied to the questions asked from him. The witnesses of the defendant also were not present in Court. The defendant had given the list of twelve witnesses on whose testimony he proposed to rely. All the 12 witnesses were from Tivim. The defendant applied for summons to be issued to only four out of these 12 witnesses, thereby implying that the remaining eight witnesses would be brought by him to the Court without the help of the Court. He did not pay the process fees, though there was a specific order for such payment, till the noon of March, 10. The learned Trial Judge adjourned the case to March, 11, 1970. The defendant did not object to the case being adjourned to the next day.

On the 11th March, the defendant made an application stating that he had failed to pay the process fees for the issuance of summons against the four witnesses because he was poor and his "benefactor" had gone to Belgaum. He did not state why the remaining eight witnesses had not been brought. He further stated in the application that his advocate was unable to put his appearance on the 11th on account of previous equally important commitments and also because be did not succeed in getting a substitute. Finally it is stated in the said application that in addition to the previously given reasons, there was the fact that the defendant is unwell and therefore unable to put up his case before the Court. The learned Trial judge therefore dismissed the application of the defendant, considered his case as closed and proceeded to dispose of the suit.

2. The main attack against the judgment and order is directed against the legality on the order of 11th March, 1970 (hereinafter referred to as the "said Order"). Shri Usgaocar, learned advocate for the defendant states that if the "said order" is not set aside and the case remanded for giving to the defendant an opportunity to adduce his evidence, he will be unable to assail the judgment and order of the trial Court.

3. It is pointed out by Dr. Ataide Lobo, learned Advocate for the plaintiffs that the decree in the suit was passed on 15-7-70 and that the defendant did not file any Revision Application to have the "said order" of the 11th March set aside for over four months and that this indicated that the present challenge taken in this appeal, to the "said order" was an afterthought. The defendant was present at all the hearings of the suit subsequent to the "said order" and the matter was argued by him on his behalf and yet he made an application for setting aside the decree on the ground that the decree was ex parte. No appeal was filed by the defendant against the order dismissing his application for setting aside the alleged ex parte decree. All this indicates that the defendant was not quite serious about the prosecution of his case.

4. As rightly pointed out by Dr. Lobo, the said order which is challenged in this appeal is either an order under Order 16, Rule 20 or an order under Order 17, Rule 3 C. P. C. These two rules read as follows:-

"Rule 20:- Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there is his possession or power, the Court may pronounce judgment against him or make. Such order in relation to the suit as it thinks fit.

Rule 3:- Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, eith

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