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2012 DIGILAW 1147 (BOM)

Champabai Sadashiv Raut Dessai v. Luiza Fernandes

2012-06-29

F.M.REIS

body2012
Judgment : Heard Shri S. Redkar, learned Counsel appearing for the petitioners and Shri V. P. Thali, learned Counsel appearing for the respondent. 2. Rule. Heard forthwith by consent of the learned Counsels. 3. Shri V. P. Thali, learned counsel appearing for the respondent waives service. 4. The above petition challenges the orders dated 02.03.2012 and 30.03.2012 of the learned Civil Judge Junior Division at Quepem, whereby further examination of evidence of the petitioners was closed in view of the absence of PW2 on 02.03.2012. The learned Counsel appearing for the petitioners has assailed the impugned order on the ground that on 02.03.2012, PW2 was not present as according to him he had some election work. The learned Counsel further pointed out that on the said date, an application was filed by the petitioners to the effect that as PW2 was not available, the petitioners would examine a surveyor Mr. Tito D'Cunha. The learned Counsel further pointed out that despite of the stand taken by the petitioners to examine a new witness the learned Judge by the impugned order refused to grant any adjournment and closed the evidence of the petitioners. The learned Counsel has thereafter taken me through the records and proceedings of the suit and pointed out that the record reveals that PW2 was not present on the earlier occasion as he was subjected to an operation. The learned Counsel further pointed out that even the respondent on some occasions sought adjournments as she was not in a position to proceed with the evidence. The learned Counsel further pointed out that considering the facts and circumstances of the case, the learned Judge was not justified to pass the impugned order and the Court has acted in erroneous exercise of jurisdiction whilst passing the impugned order which would occasion an irreparable damage to the case of the petitioners. The learned Counsel as such submits that there are grounds which require interference by this Court in the impugned order in exercise of jurisdiction under Article 227 of the Constitution of India. 5. On the other hand, Shri Thali, learned Counsel appearing for the respondent has supported the impugned order. The learned counsel has pointed out that the conduct of the petitioners in seeking numerous adjournments during the course of the trial of the suit is not justified and as such the petitioners were not entitled for any further adjournments. 5. On the other hand, Shri Thali, learned Counsel appearing for the respondent has supported the impugned order. The learned counsel has pointed out that the conduct of the petitioners in seeking numerous adjournments during the course of the trial of the suit is not justified and as such the petitioners were not entitled for any further adjournments. The learned Counsel has taken me through the impugned order and pointed out that on the relevant date, the ground on which the adjournment was sought is not justifiable as it was not shown what was the nature of the election work the said witness was occupied on the said date. The learned Counsel further pointed out that the whole exercise of the petitioners is to delay the proceedings to the detriment of the rights of the respondent and any interference by this Court in the impugned order at this stage would jeopardize the right of the respondent as according to him DW1 is already in the witness box and the respondent would not be in a position to lead any additional evidence in case the petitioners are permitted to lead further evidence. The learned counsel as such submits that no interference is called for in the impugned order. 6. I have carefully considered the submissions of the learned counsels appearing for the respective parties and I have also gone through the Roznama entries produced by the petitioners alongwith the petition as well as the records and proceedings of this petition. On perusal of the Roznama, it appears that the petitioners no doubt sought an adjournment on previous occasion. But however the record also reveals that on some occasions the respondent also sought adjournments as she was not in a position to proceed with the cross examination of PW2. The record further reveals that an affidavit of PW2 was already submitted to the respondent way back in the year 2010. It is well settled that the Court has to consider the justification as on the date when an adjournment is sought and merely because on previous occasion an adjournment has been granted is not a ground to refuse an adjournment on such particular date. In the present case, though the petitioners had sought an adjournment on previous occasion, nevertheless the Court had found justification in granting such adjournment. In the present case, though the petitioners had sought an adjournment on previous occasion, nevertheless the Court had found justification in granting such adjournment. Hence, the only relevant aspect to be considered is whether the petitioners were entitled for adjournment on 02.03.2012. In the present case, the ground on which the adjournment was sought is that PW2 was involved in some election work. It is not in dispute that PW2 was a Zilla Panchayat Member. In the context of such activities of the PW2, it cannot be said that PW2 might not have been involved in such election work. In such circumstances, the learned Judge could have granted another opportunity to the petitioners for further cross examination of PW2 on some stringent terms. Apart from that, the record also reveals that the petitioners wanted to examine another witness instead of PW2 as he was not available on the said date. As such, the learned Judge could have exercised its jurisdiction and granted the permission to the petitioners to examine such witness on the said date. 7. Considering the facts and circumstance of the case and in the interest of justice, and in the peculiar circumstances as disclosed in the petition and also taking note of the fact that PW2 was not available on the earlier occasion as he was admittedly subjected to an operation, I find that the petitioners should be given an opportunity to examine PW2 as their witness in the suit. At this stage, the learned Counsel appearing for the petitioners states that besides PW2, the petitioners wish to examine one Mr. Tito D'Cunha as their next witness and no other witnesses. In such circumstances, the petitioners would be entitled to examine PW2 and the said witness Mr. Tito D'Cunha on the date as fixed by the learned Judge for recording their evidence. It is made clear that the present order is passed in the peculiar facts and circumstances and taking note of the fact that PW2 was not available to proceed with the evidence on the earlier occasion on account of his operation which is not disputed. Nevertheless, such liberty is to be given to the petitioners subject to payment of costs to the respondent. The costs are fixed at Rs.10,000/-as condition precedent to be paid to the respondent. Nevertheless, such liberty is to be given to the petitioners subject to payment of costs to the respondent. The costs are fixed at Rs.10,000/-as condition precedent to be paid to the respondent. It is further clarified that the evidence of the petitioners shall be recorded first and the respondent would be entitled to file an additional affidavit of DW1 if she so desires after the evidence of PW2 and the said witness Mr. Tito D'Cunha is examined by the petitioners. No doubt, such exercise would be carried out by the learned Judge in accordance with law. 8. In view of the above, I pass the following : ORDER (i) The impugned orders dated 02.03.2012 and 30.03.2012 are quashed and set aside. (ii) The petitioners are permitted to lead further evidence in the light of the observations made herein above subject to the petitioners paying costs of Rs.10,000/-to the respondent as condition precedent. (iii) Rule is made absolute in above terms. (iv) The petition stands disposed of accordingly.