Advocates:
['ADV DEVIDAS J PANGAM', '', 'ADV FERNANDES LUIS ALEX', 'ADV VISHWADH SARDESSAI', '', '', '', 'ADV NIGEL DA COSTA FRIAS']

rsk

1 WP-1053-16.odt

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.1053 OF 2016

Jitendra Raghuraj Deshprabhu

& Ors.

...Petitioners

vs.

Indian Oil Corporation Ltd.& Ors.

...Respondents

Mr.D. J. Pangam a/w Mr. Luis Fernandes for the Petitioner.

Mr.Sardessai, AGA for the Respondent Nos.2, 3 and 4.

Mr.Niqel Da Costa Frias a/w Ms. Laxmi Sawant for the Respondent

No.1.

CORAM :- C. V. BHADANG, J

Reserved on : MARCH, 24 2017.

Pronounced on : APRIL, 4 2017.

(Through Video Conferencing)

ORDER :

.

The Petitioners who are the original defendant Nos.1 to 3

are challenging the order dated 20/8/2016 passed by the Learned

District Judge Panji in Civil Suit No.54/2009. By the impugned order

Application (Exh.147) filed by the Respondent No.1(the Original

Plaintiff) for amendment of plaint has been allowed.

2.

The brief facts are that the first Respondent has filed the

aforesaid suit for permanent and mandatory injunction directing the

Petitioner to repair and restore the road surveyed under No.142/0 of

village Torxem, Pernem and for an injunction restraining them from

interfering with the said road. The case made out by the first

Respondent is that the said kachha road is situated in between the

land belonging to the Respondent No.1 and the National Highway-17

which is towards the northern side of the property of the Respondent

rsk

2 WP-1053-16.odt

No.1 on which there is a retail Petrol outlet. It appears that by an order

dated 31/8/2012, an application filed by the first Respondent under

Order XXVI Rule 9 of the CPC for appointment of Commissioner was

allowed by the Trial Court, which was challenged by the Petitioners

before this Court in Writ Petition No.738/2012. That petition was

disposed of by this Court on 27/2/2013. This Court found that it is for

the first Respondent to first adduce evidence in support of the

pleadings in the plaint and only thereafter the Commissioner would

have to visit the suit property and furnish his report, else otherwise,

the first Respondent may fashion his evidence in accordance with the

said report. It appears that after the evidence of the Petitioners, site

inspection

came

to

be

conducted

by

the

Field

Surveyor(Commissioner) from the office of Directorate of Settlement

& Land Records, Panaji Goa on 3/3/2016 in the presence of both the

parties. The Commissioner gave his report on 10/3/2016, which reads

thus:

1. Petro pump area falls in Survey No.142/1 of

Torxem village of Pernem Taluka.

2. There exist an excavated trench as shown on

plan falls in Survey No.142/1 of Torxem Village of

Pernem Taluka.

3. Position of existing tar road of National

Highway is as shown on plan.

The Commissioner's report was accompanied by a plan

which showed the trench in green colour.

3.

The first Respondent filed an application for amendment

of the plaint on 21/7/2016 seeking addition of paragraph 21-A and

prayer clauses b(1) and b(2) as set out in the application. In short, the

first Respondent claimed that the trench dug by the Petitioners, which

obstructs the access to the retail outlet, is within the property of the

rsk

3 WP-1053-16.odt

first Respondent surveyed under No.142/0. The first Respondent

further claimed that on 2/6/2016 the first Respondent filled the said

trench, however, the Petitioners had trespassed into the property on

18/6/2016 and dig a fresh trench in the same place using an excavator,

which matter was reported to police on 20/6/2016. The first

Respondent, therefore sought a direction to the Petitioner to fill the

said trench and restore the property to its original condition.

4.

According to the first Respondent the amendment is

necessitated on account of subsequent development in particular, the

Commissioner's report.

5.

The Petitioners filed a reply and opposed the application

for amendment. It was contended that the report of the Commissioner

makes a reference to the property survey under No.142/1 and not the

pro