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2014 DIGILAW 565 (BOM)

Motesma D'Silva v. Clemente Fernandes

2014-02-28

U.V.BAKRE

body2014
Oral Judgment: 1. Heard Mr. Coutinho, learned Counsel appearing on behalf of the petitioners and Mr. Diniz, learned Counsel appearing on behalf of the respondents no. 1 and 2. 2. Rule. Rule made returnable and heard forthwith by consent of the parties. 3. By this petition, the petitioners have challenged the order dated 04/08/2012, thereby closing the defence evidence and the order dated 31/10/2012 thereby rejecting the application for re-opening the evidence of the defence, both passed by the learned Civil Judge, Senior Division, Margao (Trial Court) in Regular Civil Suit No. 111/2004/A. 4. The petitioners and the respondents no. 3 to 7 are the defendants before the Trial Court in the said Regular Civil Suit whereas respondents no. 1 and 2 are the plaintiffs. For the sake of convenience, the parties shall hereinafter be referred to as per their status in the said suit. 5. After the plaintiffs closed their evidence on 21/01/2012, the matter was posted for defence evidence and after few adjournments on some ground or the other, the suit came to be fixed on 04/08/2012 for defence evidence. On 04/08/2012, as per the Roznama in the said suit, neither the defendants nor their advocate and even no witnesses for the defendants were present. The Trial Court was pleased to close the defence evidence stating that sufficient time was given to the defendants but they failed to produced the evidence. The matter came to be fixed for final arguments on 01/09/2012. On 01/09/2012, the defendants filed an application for re-opening their evidence. In that application, the defendants stated that the matter was posted for defence evidence on 06/08/2012 at 2.30 p.m. and that the defendants as well as their lawyers was present in the Court on 06/08/2012 at 2.30 p.m., but the matter was not called out and when this was informed to the learned Trial Court, the defendants were told that the above matter was taken up for hearing in morning session as the lawyer of the plaintiffs had mentioned to the Court that the matter was fixed in the morning session. They stated that there appeared to be some misunderstanding with regard to the date of hearing. It was alleged that non-appearance of the defendants and their lawyer was not intentional, considering their past conduct and that grave and irreparable injury will be caused to them, if they are not permitted to lead their evidence. They stated that there appeared to be some misunderstanding with regard to the date of hearing. It was alleged that non-appearance of the defendants and their lawyer was not intentional, considering their past conduct and that grave and irreparable injury will be caused to them, if they are not permitted to lead their evidence. 6. By order dated 31/10/2012, on the application for re-opening the evidence, the learned Trial Court observed that the plaintiffs had closed their evidence on 21/01/2012 and the suit was fixed for defence evidence and that no witness was present on behalf of the defendants after the plaintiffs closed their evidence till the date of the order i.e. till 31/10/2012. The Trial Court further observed that on 04/08/2012 in the morning session none was present for the defendants and hence the Court closed the defence evidence and adjourned the matter to 01/09/2012 on which day the application came to be filed. The Trial Court observed that averments in the application are not correct and not in accordance with the record. It was also observed that the application was not supported by any affidavit. At the end, the Trial Court, however, held that it had no jurisdiction to re-open the defence evidence and, therefore, rejected the application. 7. On 22/11/2012, the defendants even filed an application for review of the order dated 31/10/2012. The Trial Court, by order dated 04/01/2014 rejected the said application also. 8. Mr. Coutinho, learned Counsel appearing on behalf of the petitioners invited my attention to the roznamas in the said suit. I have perused the roznama. It is noticed that on 21/01/2012, the plaintiffs closed their evidence and the matter was fixed for defence evidence on 09/02/2012 at 2.30 p.m. On 09/02/2012, the plaintiffs as well as their advocate was absent and learned advocate on behalf of the defendant was present. The matter was adjourned for defence evidence on 23/02/2012 at 2.30 p.m. It is obvious that the said adjournment was on account of absence of the plaintiffs and their advocate. On 23/02/2012, the learned Counsel appearing for both the parties were present but the learned Counsel appearing on behalf of the plaintiff orally prayed for time which was granted and the matter was fixed for defence evidence on 01/03/2012. On 23/02/2012, the learned Counsel appearing for both the parties were present but the learned Counsel appearing on behalf of the plaintiff orally prayed for time which was granted and the matter was fixed for defence evidence on 01/03/2012. On 01/03/2012, the learned Counsel for both the parties were present and an application for adjournment was filed on behalf of the defendants along with a medical certificate of sickness of the defendant. The adjournment was granted and the matter was fixed for defence evidence on 09/04/2012. On 09/04/2012, the defendants filed an application for leave to examine witness prior to examination of the party-defendant. On 04/06/2012, say was endorsed by the learned Advocate for the plaintiffs on the said application dated 09/04/2012 and arguments were heard on that application. On 09/07/2012, none was present on behalf of the plaintiffs and the application dated 09/04/2012 filed by the defendants was rejected. It is thereafter that the matter was again fixed for defence evidence on 04/08/2012. From the above, it can be understood that the defendants were not negligent and the only adjournment which they had sought was on 01/03/2012 and that too was on account of the sickness of the party for which the medical certificate was produced. In my view, therefore, there was no reason for the Trial Court to observe that sufficient time was given to the defendants and the defendants failed to produce the evidence. It can be said that the order closing the defence evidence is harsh and arbitrary. The order passed by the Trial Court on 04/08/2012 was in the absence of the defendants and their advocate. On 01/09/2012 which was the next date of hearing, the defendants had filed an application for re-opening the evidence of defendants thereby explaining the reasons as to why they or their advocate could not remain present on the previous date of hearing. The learned Trial Court however dismissed the said application. No doubt the averments in the said application dated 01/09/2012 far as the date of hearing is concerned were not correct. Though the date of hearing was 04/08/2012, in the application for re-opening the evidence, it has been wrongly mentioned as 06/08/2012. Similarly, the application has been wrongly titled as for re-opening the evidence of the plaintiff. Mr. Diniz, learned Counsel appearing on behalf of the respondents no. Though the date of hearing was 04/08/2012, in the application for re-opening the evidence, it has been wrongly mentioned as 06/08/2012. Similarly, the application has been wrongly titled as for re-opening the evidence of the plaintiff. Mr. Diniz, learned Counsel appearing on behalf of the respondents no. 1 and 2 alleged that the suit is old being of 2004 and that the attitude of the defendants is only to drag the matter and cause harassment to the plaintiffs. He submitted that the mistake regarding the date made in the application is not inadvertent. He submitted that there was no ground made out for recalling the order closing the defence evidence. Learned Counsel pointed out from the application dated 09/04/2012, filed by the defendants before the Trial Court, that the defendant no 2 who was supposed to be examined on behalf of the defendants had received a call from his employer and as such had to join duty on board the ship. He submitted that this is the real cause for delaying the matter. In my view, the said mistakes in the application dated 01/09/2012, for re-opening the evidence, can be called as inadvertently committed mistakes, as submitted by Mr. Coutinho, learned Counsel appearing on behalf of the defendants, since it is a matter of record that the date of hearing was 04/08/2012 and not 06/08/2012 and that it was the defence evidence which closed and not the evidence of the plaintiffs. The Trial Court dismissed the said application holding that it had no jurisdiction to reopen the case closed by it. In my view, the said order dated 31/10/2012 is not in accordance with the established principles of law. The Trial Court ought to have considered that the plaintiff had led their evidence whereas the defendants had not led any evidence at all and that would cause great prejudice to their case. The Trial Court ought to have granted an opportunity to the defendants. If at all the suit is old, I am of the view, that the appropriate directions can be given to the Trial Court to expedite the disposal. In so far as inconvenience caused to the plaintiffs, I am of the view that they can be compensated by awarding costs. However, the interest of justice will require that the defendants get an opportunity to lead their evidence. Therefore, the petition is bound to succeed. 9. In so far as inconvenience caused to the plaintiffs, I am of the view that they can be compensated by awarding costs. However, the interest of justice will require that the defendants get an opportunity to lead their evidence. Therefore, the petition is bound to succeed. 9. In the result, the petition is allowed. (a) The impugned order dated 04/08/2012, thereby closing the defence evidence and the impugned order dated 31/10/2012 thereby rejecting the application for reopening the defence evidence, are both quashed and set aside. (b) The application for re-opening of defence evidence is allowed subject to payment of costs of Rs. 5,000/-(Rupees Five Thousand only) to the plaintiffs as condition precedent. The costs shall be deposited before the Trial court within time limit to be fixed by the Trial Court. (c) Disposal of the suit shall be expedited. (d) Parties to appear before the Trial Court on 14/03/2014 at 10.00 a.m. (e) Rule made absolute in the aforesaid terms. 10. Petition stands disposed of.