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2012 DIGILAW 414 (BOM)

Jairam Anant Mandrekar v. Srimati Arjun Ghatwal

2012-02-24

F.M.REIS

body2012
judgment 1.heard shri d. Pangam, learned counsel appearing for the petitioners and shri j. E. coelho pereira, learned senior counsel appearing for the respondents. 2. Leave to amend. Amendment to be carried forthwith by the petitioners. 3. rule. Heard forthwith with the consent of the learned counsel. Learned counsel appearing for the respondents waives service. 4. The above petition challenges the order dated 05.01.2008 passed in civil misc. Application no. 104/07, order dated 05.06.2007, passed in civil misc. Application no. 219/06 and order dated 16.09.2006, dismissing the renumbered civil suit no. 16/2004. 5. Briefly, the facts of the case are that the petitioners filed this suit for recovery of compensation/money from the respondents herein. The suit came to be dismissed for default by order dated 16.09.2006 on the ground that the petitioners and the advocates did not remain present on the same day. Thereafter the petitioners filed an application for restoration before the learned judge being civil misc. Appeal no. 219/06. The said application came to be dismissed by order dated 05.06.2007 on the ground that no steps were taken to serve the respondent nos. 2(g) and (h). Thereafter, another application came to be filed by the petitioners for restoration of the said restoration application being civil misc. Application no. 104/07 which came to be rejected by order dated 05.01.2008. Being aggrieved by the said orders, the petitioners have preferred the present writ petition. 6. Shri pangam, learned counsel appearing for the petitioners, assailed the impugned order essentially on the ground that the original suit came to be dismissed for default as according to him, there was a wrong noting of the date by the advocate appearing for the petitioners. Learned counsel further pointed out that there is a sufficient cause made out by the petitioners for the restoration of the suit. Learned counsel further pointed out that the learned judge has erroneously dismissed the application for restoration when only two respondents namely respondent nos. 2 (g) and (h) were not served as at the most the learned judge could have dismissed the suit against the said respondents and not the whole application by order dated 05.06.07. Learned counsel further pointed out that the application for restoration of application came to be dismissed by the learned judge by next order dated 05.01.08 taking note of the conduct of the petitioners of not taking steps to serve the unserved respondents. Learned counsel further pointed out that the application for restoration of application came to be dismissed by the learned judge by next order dated 05.01.08 taking note of the conduct of the petitioners of not taking steps to serve the unserved respondents. Learned counsel further pointed out that the petitioners have been diligent in pursuing the matter and only due to the fact that the service was not affected on the unserved respondents, the application came to be dismissed thereby depriving the right of the petitioners to pursue the suit in accordance with law. 7. On the other hand, shri j. E. coelho pereira, learned senior counsel appearing for the respondents, has supported the impugned order and pointed out that the conduct of the petitioners has been only to delay the matter and, as such, no discretion can be exercised in favour of the said petitioners. Learned senior counsel further pointed out that the learned judge has noted the conduct of the petitioners and dismissed the applications. However, the learned senior counsel has not taken any serious objections to the ground made out by the petitioners for restoration of the suit. 8. Having heard the learned counsel and on perusal of the material on record, i find that, in the interest of justice and in view of the fact the dismissal of the suit was on the ground that the advocate appearing for the petitioners had not noted the date of the hearing, i find that, an opportunity can be given to the petitioners to pursue their remedy in law to proceed with the suit filed by the petitioners. The learned judge was not justified to pass the order dated 05.06.07 as at the most the learned judge could have dismissed the application as against the unserved respondents. Considering the facts and circumstances of the case, i find it appropriate not to delay further the proceedings. The impugned orders passed by the court below dated 05.01.08, 05.06.07 and 16.09.06, deserves to be quashed and set aside and the suit filed by the petitioners being civil suit no. 16/2004, be restored to the file so that the learned judge may proceed to decide the suit in accordance with law. The petitioners shall pay cost of rs.5,000/- to respondent nos. 1, 2, 3 and 4 as condition precedent. 16/2004, be restored to the file so that the learned judge may proceed to decide the suit in accordance with law. The petitioners shall pay cost of rs.5,000/- to respondent nos. 1, 2, 3 and 4 as condition precedent. The respondents shall also be at liberty to file the written statement in case such written statement has not been filed within the time fixed by the learned judge. 9. In view of the above, i pass the following : order (i) the impugned orders dated 05.01.08, 05.06.07 and 16.09.06, are quashed and set aside. (ii) the civil suit no. 16/2004, is restored to the file of the learned addl. District judge, north goa, mapusa, subject to the payment of cost of rs.5,000/- to respondent nos. 1, 2, 3 and 4 as condition precedent. (iii) the learned addl. District judge shall proceed to dispose of the said suit after permitting the respondents to file written statement in accordance with law. (iv)considering that the suit was originally filed in the year 2002, the learned addl. District judge, north goa, mapusa, is directed to dispose of the suit as expeditiously as possible in any event on or before 31.12.2013. (v) parties are directed to appear before the learned judge on 26.03.2012 at 10.00 a.m. (vi)rule is disposed of in the above terms. (vii) petition stands disposed of with no orders as to costs.