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Judgment
F. M. Reis, J
Heard Ms. Gawas, learned Counsel appearing for the Petitioners and Shri Sudesh Usgaonkar, learned Counsel appearing for the Respondent. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the Respondents waive service.
The above Petition challenges the Order passed by the learned Civil Judge, Senior Division, at Margao, in Regular Civil Suit no. 253/2009/III, whereby the cross examination of Pw.1 came to be closed as the adjournment was refused by the learned Judge.
The learned Counsel appearing for the Petitioners has assailed the impugned Order on the ground that the advance copy of the affidavit of Pw. 1 was served on the Petitioners on 24.01.2012 and the matter was posted for examination in chief of Pw.1 on 01.03.2012. Thereafter, the evidence of Pw.1 was recorded and the matter was posted for cross examination on 20.03.2012 on which date, the Petitioner was absent and an opportunity was given by the learned Judge and the matter was posted for cross examination on 27.03.2012. On 27.03.2012, the learned Advocate appearing for the Petitioners filed an application to the effect that he desires to withdraw his appearance on behalf of the Petitioners and sought an adjournment. But, however, the learned Judge on the said date dismissed the application for adjournment and closed the cross examination of the Petitioners as well as the evidence of the Plaintiff and the matter was thereafter posted for defence evidence on 10.04.2012. Learned Counsel as such pointed out that on the basis of the records before the learned Judge, it is evidence that the Petitioners sought only one adjournment prior to 27.03.2012 when the impugned Order came to be passed. Learned Counsel as such submits that taking note of the fact that the Petitioners were not given notice by the learned Advocate about his intentions to withdraw from the case, there was justification for the Petitioners absence on the said date and, as such, the impugned Order deserves to be quashed and set aside.
On the other hand, Shri Sudesh Usgaonkar, learned Counsel appearing for the Respondent, has supported the impugned Order passed by the learned Judge. Learned Counsel pointed out that the conduct of the Petitioners disentitle them for any relief in exercise of the jurisdiction under Article 227 of the Constitution of India. Learned Counsel has taken me through the roznama in the proceedings and pointed out that the Petitioners had not been pursuing the matter diligently and, as such, the question of exercising any discretion in favour of the Petitioners, does not arise. Learned Counsel further pointed out that after the said date i.e. 27.03.2012, there were two hearings before the learned Judge when the evidence of Pw.2 was recorded and the cross of the Petitioners was closed and the matter is now posted to 12.06.2012 for further evidence of the Respondent. Learned Counsel as such submits that there is no reason why interference is called for in the impugned Order.
I have carefully considered the submissions of the learned Counsel and have also perused the records and the roznama as pointed out by the learned Counsel appearing for the Respondent. The records reveal that prior to the date of the impugned Order i.e. 27.03.2012, the Petitioners had sought only one adjournment. As such, considering that the Advocate appearing for the Petitioners showed his intention that he wanted to withdraw his appearance on behalf of the Petitioners and, admittedly, such notice was not given to the Petitioners prior to the said date, there was justification for the absence of the Petitioners on 27.03.2012. But however, taking note of the conduct of the Petitioners to the effect that they have failed to remain present on the earlier occasion, I find that such indulgence to the Petitioners can be exercised only on payment of costs to the Respondent. Shri Usgaonkar, learned Counsel appearing for the Respondent, has pointed out that subsequently Pw.2 has also been examined and the evidence of Pw.2 has been closed. Considering the said Order passed on 27.03.2012, closing the evidence of the Respondent/Plaintiff, I fail to understand how the evidence of Pw.2 was recorded by the learned Judge. Be that as it may, considering the overall facts and circumstances of the case, I find that the Petitioners should be given an opportunity to cross examine Pw.1 as well as Pw.2 on payment of costs to the Respondents. The costs are quantified at Rs.5,000/-to be paid on or before the next date of hearing. It is pointed out by the learned Counsel that the matter is now posted on 12.06.2012. The learned Judge shall first proceed with the cross examination of Pw.1 and thereafter the cross examination of Pw.2 by the Petitioners and, thereafter, continue to record further evidence of the parties in accordance with law. The learned Counsel appearing for the Petitioners ensures that the Petitioners shall co-operate with the Court and shall not seek adjournment on frivolous excuses. In view of the above, I pass the following :
ORDER
(i) The impugned Order dated 27.03.2012 closing the cross examination of Pw.1 is quashed and set aside.
(ii) The Petitioners are permitted to cross examine Pw.1 as well as Pw.2 as on the dates fixed by the learned Trial Judge on payment of costs of Rs.5,000/-to the Respondent herein as condition precedent.
(iii) Rule is made absolute in the above terms.
(iv)Petition stands disposed of accordingly with no orders as to costs.
(v) Authenticated copy of this Judgment be issued to the parties in accordance with law.