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Judgment
F.M. Reis, J.—Heard Shri A. D. Bhobe, learned Counsel appearing for the petitioner and Shri V. Menezes, learned Counsel appearing for respondent no.1.
Rule.
Heard forthwith by consent of learned Counsel.
Shri V. Menezes, the learned Counsel waives service on behalf of respondent no.1.
The above petition challenges the order dated 15.09.2011 passed by the learned Civil Judge Senior Division, Panaji in Special Civil Suit No. 83/2003/B.
The Petitioner filed an application on 15.09.2011 seeking for an adjournment on the ground that the matter was likely to be settled between the parties. Accordingly, an adjournment was sought to file the affidavit in evidence of the witness as in view of such settlement talks, the same could not be prepared. The said application was not objected by the Respondents. The learned Judge by the impugned Order found that the conduct of the Petitioner was not conducive to grant any further adjournment and, as such, the application came to be rejected.
Shri Bhobe, the learned Counsel appearing for the Petitioner has submitted before me that in fact the matter has been settled between the parties and only because some Inventory Proceedings are pending which would affect any such settlement, the filing of consent terms were delayed. The learned Counsel further submitted that as such a joint application was also filed before the learned Judge to keep the matter in abeyance until the disposal of the Inventory Proceedings. The learned Counsel further points out that the conduct of the Petitioner itself suggests that there was a genuine attempt by the parties to settle the dispute and, as such, the learned Judge was not justified in dismissing the application to keep the suit in abeyance as well as the application for adjournment both dated 15.09.2011. Shri Bhobe, the learned Counsel also submitted that he will examine only two more witnesses in support of his case. The learned Counsel as such submitted that the impugned Order deserves to be quashed and set aside.
On the other hand, learned Counsel Shri V. Menezes appearing for the Respondent no.1 has pointed out that in fact the Respondents had filed a joint application to keep the suit in abeyance. He further points out that in fact the parties are settling the matter and only on account of the pendency of the Inventory Proceedings, the settlement could not be finalised.
Having heard the learned Counsel and on perusal of the record, I find that the learned Judge was justified to refuse the request of the parties to keep the suit in abeyance merely because Inventory Proceedings was pending. This cannot be a ground to keep the trial of the suit pending as such the Order dated 15.09.2011 refusing the joint request of the parties to keep the matter in abeyance is justified.
With regard to the Order passed by the learned Judge in refusing to grant an adjournment to file affidavit in evidence of the witnesses of the Petitioner, I find that in the peculiar facts and circumstances of the case, an adjournment could be granted on such count. Considering the fact that it is not disputed that the parties were settling the matter, it would be appropriate that a last and final opportunity could have been given by the learned Judge to lead further evidence in the matter as the application to keep the suit in abeyance came to be rejected on the same day.
Considering the facts and circumstances of the case as stated herein above and which are not disputed by the parties, I find that the Order passed by the learned Judge dated 15.09.2011 refusing to grant time to the Petitioner deserves to be quashed and set aside.
In view of the above, I pass the following
ORDER
(i) The impugned order dated 15.09.2011 is quashed and set aside.
(ii) The petitioner is permitted to examine two more witnesses in support of his case as per the convenience of the learned Judge.
(iii) After the evidence of the petitioner is recorded, the respondents will have an opportunity to record their evidence in the suit in accordance with law.
(iv) The parties are directed to appear before the learned Judge on 08.11.2011 at 2.30 p.m. and the Petitioner shall file the affidavit in evidence of his witness on the said date and abide by further directions of the learned Judge.
Rule is made absolute in the above terms.
The petition stands disposed of accordingly with no order as to costs.