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Judgment
A.P. Lavande, J.—Heard Mr. Karpe, learned Counsel for the Petitioners and Ms. Razak, learned Counsel for Respondent No. 1.
Rule. By consent heard forthwith.
By this petition under Article 227 of the Constitution of India, the Petitioners challenge the order dated 5.10.2010 passed by the learned 4 Civil Judge, Senior Division, Margao in Special Civil Suit No. 107/03 by which the evidence of the Petitioners has been closed.
The Petitioners and Respondents Nos. 2 and 3 are Plaintiffs in the above suit filed against Respondent No. 1 seeking release of the fixed deposits receipts.
The suit was filed in August, 2003. The written statement was filed on 17.12.2003. Thereafter several adjournments were sought by the Plaintiffs and on 6.3.2010 on behalf of the Plaintiffs, an Affidavit in evidence of Plaintiff No. 2 Shri Francis Xavier Furtado was filed. The suit was posted on 24.7.2010 for production of documents and cross examination on behalf of Defendant. On that day, none appeared on behalf of the Defendant and the matter was adjourned to 17.6.2010. It appears that on 17.6.2010 learned Judge was on leave and the matter was adjourned to 17.7.2010 on which day adjournment was sought by the Defendant. On next date i.e. 7.8.2010, on behalf of the Plaintiffs time 5 was sought to examine Plaintiff No. 2 on the ground that he was not well. The said adjournment was granted and the matter was adjourned to 7.9.2010. On the said day, yet another application for adjournment was filed by the Plaintiffs on the ground that settlement talks were in progress between the parties. Adjournment was granted and the matter was adjourned to 5.10.2010.
On 5.10.2010 the Plaintiffs filed an application for adjournment on the ground that settlement talks were in progress between the Plaintiffs. On behalf of the Defendant an endorsement was made that Defendant would leave the matter to the Court. The learned Judge passed an order closing the evidence of the Plaintiffs on the ground that Plaintiffs had already taken more than three adjournments.
Mr. Karpe, learned Counsel appearing for the Petitioners submitted that serious prejudice would be caused to the Plaintiffs in the event the impugned order is not set aside in as much as by the impugned 6 order, the evidence of the Plaintiffs has been closed. He further submitted that in the event the impugned order is not set aside, the suit will have to be necessarily dismissed since the Plaintiffs would be precluded from leading any evidence in support of their case. Learned Counsel, therefore, submitted that the impugned order be set aside by imposing appropriate costs.
Ms. Razak, learned Counsel on behalf of Respondent No. 1 supported the impugned order and submitted that no case has been made out for setting aside the impugned order in exercise of jurisdiction under Article 227 of the Constitution of India. She further submitted that the conduct of the Plaintiffs does not entitle them for seeking discretionary relief under Article 227 of Constitution of India. Ms. Razak further submitted that the Petitioners/Plaintiffs do not deserve any indulgence since the Plaintiffs have sought several adjournments. None appears for Respondents 2 and 3.
Having considered the rival submissions and on perusal of the records, I am of the considered opinion that the impugned order is liable to be set aside. By the impugned order the entire evidence of the Plaintiffs has been closed and as such, the suit is liable to be dismissed in the absence of any evidence having been led on behalf of the Plaintiffs. In my opinion, having regard to the conduct of the Plaintiffs, this is a fit case in which the impugned order deserves to be set aside by imposing appropriate costs in favour of Respondent No. 1.
In view of the above, impugned order dated 5.10.2010 passed by the learned Civil Judge, Senior Division, Margao, in Special Civil Suit No. 107/2003 is quashed and set aside subject to Petitioners paying costs of Rs. 5,000/-in favour of Respondent No. 1. The costs shall be deposited in the trial Court within a period of two weeks. Liberty to Defendant/Respondent No. 1 to withdraw the costs after they are deposited. In case costs are not deposited within two weeks, the impugned order shall stand revived.
The Petitioners/Plaintiffs are expected to co-operate with the trial Court in early disposal of the suit and the trial Court shall be free to pass appropriate orders in the event an application is filed for adjournment by the Plaintiffs.
Rule is made absolute in aforesaid terms.