Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 981 (BOM)

Agency Real Margao Pvt. Ltd. v. Sandeep Naik

2012-05-10

F.M.REIS

body2012
Judgment : 1. Heard Shri V. Korgaonkar, the learned Counsel appearing for the petitioner. None for the respondent though served. 2. The above petition challenges an order passed by the learned Civil Judge Senior Division, Margao dated 19/04/2011 whereby an application filed by the petitioner for an adjournment on the ground that their witness Shri Alex Fernandes was sick and was unable to attend the Court and further stating that the petitioner would take steps to appoint a Commissioner to examine such witness, was dismissed. 3. Shri Korgaonkar, the learned Counsel appearing for the petitioner points out that the said witness is crucial witness & further that only on two occasions earlier the petitioner had sought an adjournment to examine the said witness as the earlier witness who was summoned failed to remain present. The learned Counsel further points out that only on account of the sickness of the said witness the petitioner was unable to proceed with the case on the said date. The learned Counsel further pointed out that the petitioner had already examined five witnesses in support of their case and there was no allegation of any deliberate delay on the part of the petitioner as the suit filed by the petitioner is for recovery of the money. The learned Counsel has taken me through the impugned order as well as he records and proceedings and pointed out that there are no malafides or any deliberate delay on the part of the petitioner in pursuing the case. The learned Counsel further points out that despite of the fact that the matter is fixed for evidence of the respondent after the passing of the impugned order, such evidence has not been recorded. The learned Counsel, as such, submits that the impugned order be quashed and set aside. 4. The respondent though served failed to remain present even after service of Rule at the time of hearing of the above petition. 5. I have considered the submissions of the learned Counsel & have perused the records. The records reveal that on 4/12/2010 an application filed by the petitioner to issue summons to witness came to be allowed. Thereafter, the matter was fixed on 13/01/2011 when opportunity was given to the petitioner to take steps. The matter was thereafter adjourned at the instance of the petitioner on 5/02/2011 & 14/03/2011. The records reveal that on 4/12/2010 an application filed by the petitioner to issue summons to witness came to be allowed. Thereafter, the matter was fixed on 13/01/2011 when opportunity was given to the petitioner to take steps. The matter was thereafter adjourned at the instance of the petitioner on 5/02/2011 & 14/03/2011. The matter was thereafter posted on 19/04/2011 when the impugned order came to be passed. No doubt the records reveal that the petitioner has unduly delayed in examining the witnesses. Considering the records referred to herein above, the petitioner had also filed an application to issue summons to examine one witness. The witness who was intended to be examined on 19/04/2011 Shri Alex Fernandes was apparently sick. The respondent has not disputed the sickness of the said witness. The respondent also chose not to file any reply to the petition. The petitioner has stated at para 8 of the above petition the fact that the said witness is 69 years old and does not enjoy good health and is presently ailing at home. These facts have not been disputed by the respondent. 6. Considering the contention of the learned Counsel appearing for the petitioner to the effect that the said witness Shri Alex Fernandes is their crucial witness and in view of the fact that the said witness is sick and confined to household on account of his old age, I find that the petitioner should be given another last opportunity to examine the said witness. No doubt considering the conduct of the petitioner in seeking adjournment to examine the said witness, the inconvenience caused to the respondent is to be compensated with costs payable by the petitioner. Such costs are quantified at Rs.10,000/- payable by the petitioner to the respondent. Subject to the payment of the said amount of Rs.10,000/-, I find that the petitioner should be given an opportunity to examine the said witness Shri Alex Fernandes in the peculiar facts and circumstances of the case. The learned Counsel appearing for the petitioner points out that he will ensure the presence of the said witness on the date fixed by the learned trial Judge to record such evidence and shall not delay the matter any further on that count. 7. The learned Counsel appearing for the petitioner points out that he will ensure the presence of the said witness on the date fixed by the learned trial Judge to record such evidence and shall not delay the matter any further on that count. 7. In the peculiar facts and circumstances of the case, I find that the learned Judge was not justified to pass the impugned order dated 19/04/2011 refusing the adjournment and closing the evidence of the petitioner. The impugned order, as such, deserves to be quashed & set aside. 8. In view of the above, I pass the following order: ORDER (i) Rule is made absolute in terms of prayer (a) subject to the petitioner paying costs of Rs.10,000/- to the respondent as condition precedent. (ii) The petition stands disposed of accordingly with no order as to costs.