Shri Ravindra Tukaram Gaonkar and Shri Kishore Tukaram Gaonkar vs Shri Tulshidas Vassudeo Gavde, (Deceased),Since deceased through his legal heirs (Mrs. Reshma Tulshidas Gavde and others

F. M. Reis, J

Heard Shri P. Talaulikar, learned Counsel appearing for the petitioners and Shri A. D. Bhobe, learned Counsel appearing for the respondent nos. 1 to 5. Rule. Heard forthwith by consent of learned Counsels.

The learned Counsel appearing for the respondent nos. 1 to 5 waives service.

The above petition challenges an order passed by the learned Civil Judge Junior Division, Ponda, dated 16.03.2012 whereby the evidence of the petitioners came to be closed. Shri Talaulikar, learned Counsel appearing for the petitioners has pointed out that on the relevant date, the petitioners sought for an adjournment as they had preferred a Writ Petition before this Court challenging the order whereby the petitioners have sought a reference with regard to their claim of tenancy before the learned Mamlatdar. The learned Counsel has pointed out that the matter was posted before this Court on 16.03.2012 and thereafter on 23.03.2012 and on 16.03.2012, the adjournment sought by the petitioners came to be refused and the evidence of the petitioners was closed. The learned Counsel as such submits that considering the facts and circumstances of the case, the petitioners should be given one more opportunity to lead evidence and undertakes that the petitioners shall not seek any adjournment on the next date of hearing fixed by the learned judge.

Shri Bhobe, learned Counsel appearing for the respondents has pointed out that the petitioners have been seeking adjournments on false and illusory grounds and delaying the matter and as such no discretion be exercised in favour of the petitioners herein. The learned Counsel has further submitted that even on the said date, the petitioners were specifically informed that they should proceed with their evidence and despite of the said direction, the petitioners have failed to lead any evidence on the said date. The learned Counsel as such submits that the petition deserves to be rejected.

Having heard the learned Counsels, the fact that a writ petition was filed before this Court challenging the order refusing to make a reference before the learned Mamlatdar as sought by the petitioners has not been disputed. The petition apparently was filed on 16.03.2012 and was disposed of by this Court on 27.03.2012. As a writ petition was filed before this Court, I find that the learned Judge could have granted a final opportunity within its discretion, to the petitioners to lead further evidence in the peculiar facts of the case. The misconception on the part of the petitioners is justified inasmuch as in case the issue was referred to the learned Mamlatdar, the question of leading evidence before the learned Trial Court would not arise. In such circumstances, though the petitioners should have otherwise been diligent in pursuing the matter, I find it appropriate in the interest of justice that a final opportunity be given to the petitioners to file an affidavit in evidence and produce their evidence before the learned Civil Judge Junior Division, Ponda, in Regular Civil Suit No. 91/2006/C subject to payment of costs to the respondents. It is made clear that the petitioners shall not be permitted to seek further adjournments on such grounds and delay the disposal of the suit. At this stage, the learned Counsel appearing for the respective parties point out that the case is posted before the learned Judge on 19.04.2012. As such, the petitioners are directed to file their affidavit in evidence on 19.04.2012 and proceed with the deposition as per the direction of the learned Trial Judge. In view of the above, I pass the following order :

O R D E R

(i) The impugned order dated 16.03.2012 is quashed and set aside.

(ii) The petitioners are directed to lead further evidence in Regular Civil Suit No. 91/2006/C subject to payment of costs of Rs.5000/-to the respondent nos. 1 to 5 which amount has been deposited in this Court by the petitioner and as such liberty is given to the respondent nos. 1 to 5 to withdraw the said amount.

(iii) Rule is disposed of in above terms.

(iv) The petition stands disposed of accordingly with no order as to costs.