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2009 DIGILAW 1456 (BOM)

Agnelo Vaz v. Eugenia Helena Vaz

2009-11-06

R.M.SAVANT

body2009
Judgment : Oral Judgment: Rule. By consent of the parties made returnable and heard. 2. This petition takes exception to the order dated 23.06.2009 passed by the 1st Additional Civil Judge, Senior Division, Margao, by which application No.106 and 107 filed by the petitioner herein came to be rejected. 3. Such of the facts which are necessary to be cited are stated thus: The petitioner is the original plaintiff no.1(d) who has filed a suit for declaration and injunction, being Special Civil Suit No.218/1990/B. The respondents herein are the original defendants, out of which, the respondent no.4 herein is the main contesting defendant in the said suit. The said suit proceeded to trial and at the relevant time, the petitioner/plaintiff was under cross examination. From the roznama, it is disclosed that the petitioner's cross examination started sometime in March, 2008. Thereafter, the cross examination was delayed on account of one reason or the other but principally on the ground that adjournments were sought on behalf of the plaintiff. Ultimately on 13.11.2008, which was the day the suit had come up on board, it was submitted to the Court that the plaintiff intends to withdraw the suit and therefore, the said suit came to be adjourned to 20.11.208. Thereafter on two subsequent dates, time was sought on behalf of the plaintiff and on 10.12.2008, the Trial Court gave a last and final opportunity to the plaintiff and adjourned the matter to 09.01.2009 and on 09.01.2009 as no witness of the plaintiff was present, the Trial Court has recorded that the plaintiff has no interest in the prosecution of the case and hence closed the evidence of the plaintiff. The plaintiff aggrieved by the said order passed by the Trial Court on 09.01.2009 moved an application on 14.02.2009 for setting aside the said order dated 09.01.2009. In the said application it was inter alia mentioned that on account of the communication gap between the plaintiff no.2 and the Advocate on record, a statement was made to the Court that this suit is likely to be withdrawn. It is stated in the application that the other plaintiff was not interested in withdrawal of the suit and the decision therefore, for withdrawal was that of plaintiff no.2 only. 4. The said application dated 14.02.2009 was considered by the Trial Court and by the impugned order dated 23.06.2009. It is stated in the application that the other plaintiff was not interested in withdrawal of the suit and the decision therefore, for withdrawal was that of plaintiff no.2 only. 4. The said application dated 14.02.2009 was considered by the Trial Court and by the impugned order dated 23.06.2009. The said applicant came to be rejected inter alia on the ground that since the order dated 09.01.2009 was passed under Order 17, there was no provision for setting aside the said order and the plaintiff should have challenged the said order, if he was so aggrieved by the same. The Trial Court has also observed that the suit had been repeatedly adjourned at the behest of the plaintiff and a last opportunity was given to him on 09.01.2009 and consequently the evidence of the plaintiff was closed on 09.01.2009. The Trial Court therefore, dismissed the said application and in view of the dismissal of the said application, the Trial Court observed that there was no question of condonation of delay in filing the said application. 5. On behalf of the petitioner, submissions have been made reiterating the grounds which have been alleged in the said application dated 14.02.2009 mainly to the effect that the other plaintiff i.e. the petitioner herein was interested in prosecuting the said suit and therefore, he should not be made to suffer on account of the mis-communication of the plaintiff no.2 and the Advocate on record. A contention was also sought to be advanced that the numerous occasions on which the suit has been adjourned was not only at the behest of the plaintiffs but also at times at the behest of the defendants. 6. The respondent no.4 herein has filed an affidavit in reply in which, it has been stated that the said suit has been adjourned on numerous occasions (18 adjournments have been mentioned). It has been further mentioned that the suit was to be withdrawn and accordingly a statement was made before the Trial Court and the decision to prosecute the said suit now by one of the plaintiffs is an afterthought. The bonafides of the plaintiffs that is the petitioner herein are also tried to be questioned. 7. It has been further mentioned that the suit was to be withdrawn and accordingly a statement was made before the Trial Court and the decision to prosecute the said suit now by one of the plaintiffs is an afterthought. The bonafides of the plaintiffs that is the petitioner herein are also tried to be questioned. 7. Be that as it may, the fact remains that the suit is pending since the year 1990 and has been adjourned on numerous occasions at the behest of the plaintiffs, in my view, the plaintiffs cannot be non suited, so to say by closing the evidence for the reasons mentioned in the order and in my view, one last indulgence is required to be shown to the plaintiff. It is well settled by judgments of the Apex Court that in matters of this kind a highly technical and pedantic approach should be avoided and an approach which furthers the cause of justice should be adopted. Though an element of callousness is writ large on the conduct of the petitioner in prosecuting the said suit, it should not be that the petitioner should be non suited for a technical reason. No doubt, there is some prejudice that is likely to be caused to the contesting defendants especially the defendant no.4. However, the petitioner can be put to terms so that there is no further delay in a decision being arrived at in the said suit. 8. In that view of the matter, the impugned order dated 23.06.2009 is set aside and the following directions are issued: (i) The petitioner would be entitled to lead his evidence. (ii) The parties would appear before the Trial Court on 18.11.2009 which is the date fixed by the Trial Court. The Trial Court would thereafter allow the petitioner to complete the cross examination of the petitioner and lead evidence of other witnesses within a fixed time frame that would be fixed by the Trial Court, which should not be more than four weeks from 18.11.2009. (iii) The Trial Court to hear and dispose of the said suit within a period of three months from 18.11.2009. (iv) The petitioner/plaintiff has deposited an amount of Rs.5000/-on 15.09.2009. The petitioner to further deposit an additional amount of Rs.10,000/- on or before 18.11.2009. (iii) The Trial Court to hear and dispose of the said suit within a period of three months from 18.11.2009. (iv) The petitioner/plaintiff has deposited an amount of Rs.5000/-on 15.09.2009. The petitioner to further deposit an additional amount of Rs.10,000/- on or before 18.11.2009. (v) The petitioner would be allowed to lead evidence only after he produces the receipt of having deposited the additional amount of Rs.10,000/-on 18.11.2009. In case the amount is not deposited, the benefit of this order will not enure to the petitioner and the instant petition would be deemed to have been dismissed. (vi) The Trial Court to pay over to the respondent no.4, 13 and 14, 15, 16 and 18, 17 and 22 from the said amount of Rs.15,000/-i.e. the amount should be divided into five sets of Rs.3000/- each and paid over to the said respondents, who are represented by the five advocates mentioned in the list of appearance. 9. Rule is accordingly made absolute in the aforesaid terms. No order as to costs.