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2012 DIGILAW 2392 (BOM)

Ian Patton Macwhannol v. Delphin Menezes

2012-12-20

F.M.REIS

body2012
Judgment : At the outset, the learned counsel appearing for the petitioner seeks leave to delete the names of the respondent nos. 2 to 6 from the above petition. The names of the respondent nos. 2 to 6 stand deleted at the risk of the petitioner. Amendment to be carried out forthwith. 2. Heard Shri J. J. Mulgaonkar, learned Counsel appearing for the petitioner and Shri Nigel Da Costa Frias, learned counsel appearing for respondent no.1. 3. Rule. Heard forthwith by consent of the learned counsel. 4. The learned counsel appearing for the respondent no.1 waives service. 5. The above petition challenges an order passed by the learned Civil Judge Senior Division, Mapusa, dated 05.11.2012 whereby the application filed by the petitioner for adjournment was dismissed since the witness was not present when the matter was called out and consequently, the evidence of the petitioner was closed. 6. Shri Mulgaonkar, learned counsel appearing for the petitioner has pointed out that the petitioner had gone abroad for medical treatment and on such count the petitioner failed to remain present on the relevant date. Shri Mulgaonkar, learned counsel upon instructions points out that the petitioner would examine himself and three more witnesses and the petitioner would ensure that the petitioner shall remain present on the date fixed by the Court for recording of evidence. The learned Counsel also pointed out that the petitioner will not seek adjournment before the learned Judge on the ground that the petitioner was not available for recording of evidence as according to him, the petitioner will not leave the Country until his evidence is recorded. 7. With the assistance of the learned counsel appearing for the respective parties, I have gone through the Roznama produced on record and on perusal thereof, I find that the matter was posted for evidence of the petitioner/defendant no.6 on 17.10.2012 when the application was filed for adjournment and the matter was thereafter posted on 05.11.2012. On the said date, the impugned order came to be passed whereby the evidence of the petitioner was closed. It is not in dispute that prior to the said date, the petitioner has also sought two adjournments. On the said date, the impugned order came to be passed whereby the evidence of the petitioner was closed. It is not in dispute that prior to the said date, the petitioner has also sought two adjournments. It is the contention of the petitioner that he had gone abroad for medical treatment though in the application filed by the petitioner on 05.11.2012 there was no appreciable averments to justify an adjournment on the relevant date, nevertheless, the records produced reveal that in fact the petitioner had gone abroad. This can be found from the copy of the passport produced by the petitioner. In the petition, there is an averment to the effect that the petitioner had gone abroad for some medical treatment. 8. Considering the facts and circumstances of the case and in the interest of justice and taking note of the number of adjournments which the petitioner has otherwise taken to record his evidence, I find that the impugned order passed by the learned Judge deserves to be quashed and set aside subject to payment of costs to the respondents. In the peculiar facts of the case, the costs are quantified at Rs.5000/-. 9. In view of the above, I pass the following : ORDER (i) The impugned order dated 05.11.2012 is quashed and set aside. (ii) The petitioner is permitted to lead his evidence and that of his witnesses in the Special Civil Suit No. 54/2003/B in the light of the observations made herein above in accordance with law subject to payment of costs of Rs.5000/-to the respondents as condition precedent. (iii) Rule is made absolute in the above terms. (iv) The petition stands disposed of accordingly.