Smt. Eva Gomes e Correia (deceased) and Others vs Shri Lorgio Andre Rodrigues, (since deceased) (Legal heirs of deceased defendant no. 1) and Others

Heard Shri G. Shirodkar, the learned Counsel appearing for the appellants and Shri V. Lawande, the learned Counsel appearing for the respondents no. 1(a) to 1(h) in First Appeal No. 30 of 2012 and respondents no. 1 & 2 in First Appeal No. 33 of 2012. Admit. Heard forthwith with the consent of the learned Counsel appearing for the parties. The learned Counsel waives service on behalf of the respondents.

Both the above appeals are taken up together for final disposal as both the learned Counsel fairly accept that the points involved in both the appeals are similar and can be disposed of by a common judgment.

Both the appeals challenge the order passed by the learned Additional District Judge, South Goa, Margao both dated 29/01/2010 whereby the suit filed by the appellants came to be dismissed.

Considering the limited dispute raised in the present appeals, I need not advert in detail to the rival pleadings of the parties on merits. The short point which calls for determination in the present appeals is whether the learned Judge whilst passing the impugned judgment dated 29/01/2010 was justified to dismiss the suit filed by the appellants without completing the recording of evidence. The undisputed facts which can be found from the records of the proceedings are that the suit came to be filed by the appellants for declaration and permanent injunction in respect of two portions of the properties one surveyed under Chalta No. 20 of P.T. Sheet no. 96 admeasuring 240 square metres and the other surveyed under chalta no. 18 (part); new 38 (part) of P.T. Sheet No. 96 admeasuring about 279 square metres with specific boundaries which according to the appellants belong in their ownership and possession. These facts are strongly disputed by the respondents as according to them the property belongs to the respondents. Considering the pleadings, the learned Judge framed the issues and the matter was fixed for evidence. The records further reveal that though the suit came to be filed in the year 1994, the progress of the proceedings was at a very slow pace and ultimately on account of the fact that the appellants were not proceeding with the suit diligently the learned Judge dismissed the suit for default by order dated 17/01/2003. Thereafter, by an order dated 15/12/2003, the learned trial Court dismissed the application for condonation of delay and setting aside the order of dismissal of Regular Civil Suit No. 21/2001. An appeal came to be preferred before the lower Appellate Court which was allowed by order dated 15/12/2003. A Civil Revision Application was filed before this Court which came to be disposed of on 20/04/2006 whereby the restoration of the suit was confirmed and costs were awarded in favour of the respondents at Rs. 5,000/- in each suit which were then reduced to Rs. 2,000/-.

After the restoration of the said suit, the proceedings were posted by the learned trial Judge for recording of evidence of the appellant no. 3. The affidavit of the appellant no. 3 was already filed and she had entered the witness box for the purpose of examination in chief and production of document. The matter came to be adjourned for recording of further evidence of PW1/appellant no. 3 on 29/01/2010. On the said date, the appellants through their advocate made an oral request to the learned Judge for adjournment on the ground that the said PW1 was sick and was unable to attend the Court, but however, the learned Judge was not inclined to grant such adjournment and the matter was kept back. Ultimately, when the matter was called at 3.30 p.m. on the said date as the appellants were not ready to proceed with the suit the learned Judge passed the impugned order dismissing the said suit filed by the appellants. Immediately thereafter at around 3.55 p.m. the appellant no. 3 along with her advocate were present before the Court and were prepared to proceed with the evidence, but however, the learned Judge directed the appellants to file an appropriate application with that regard. Such application was filed on the same day supported by an affidavit of appellant no. 3. The learned Judge by an order dated 3/05/2010 dismissed the said application on the ground that such application was not maintainable. Whilst passing the said order, the learned Judge came to the conclusion that the order dismissing the suit was not under Order 17 Rule 2 of the CPC but such order was under Order 17, Rule 3 of the CPC and consequently the application to set aside the order dismissing the suit was not maintainable. The appellant challenged the said orders before this Court by preferring an Appeal From Order No. 42/2010 and an Appeal From Order No. 43/2010. The said appeals came to be disposed of by orders dated 20/01/2011 and 18/01/2011, respectively, whereby this Court upheld the order passed by the learned Judge to the effect that the order passed was under Order 17 Rule 3 of the Civil Procedure Code, but however reserved liberty to the appellants to challenge the said order in accordance with law. Consequently, the appellants filed the above First Appeals.

Shri G. Shirodkar, the learned Counsel appearing for the appellants has pointed out that on the relevant date the appellant no. 3 though was sick was present in the Court at about 3.55 p.m. to proceed with the evidence. The learned Counsel further pointed out that when the matter was called out at the first instance at around 3.00 p.m. request was made by the learned Counsel appearing for the appellants for an adjournment which did not find favour with the learned Judge and consequently the matter was asked to be kept after 4.00 p.m. The learned Counsel further pointed out that though the appellant remained present at 3.55 p.m. the matter came to be called out earlier and the learned Judge dismissed the suit as the appellant no. 3 was not present to proceed with the suit. The learned Counsel further pointed out that considering that this Court has held that such order was passed under Order 17, Rule 3 of the CPC considering the definition of the ''Decree'' u/s 2(2) of the CPC an appeal is maintainable. The learned Counsel further pointed out that in case the impugned order is not set aside grave prejudice shall occasion to the appellants as they will be deprived of their proprietary rights over the suit property which according to him belongs to the appellants. The learned Counsel has taken me through the impugned order as well as the order passed by this Court while disposing of Appeals From Order and submitted that the impugned orders passed by the learned Judge cannot be sustained and deserve to be quashed and set aside.

On the other hand, Shri V. Lawande, the learned Counsel appearing for the respondents no. 1(a) to 1(h) in First Appeal No. 30 of 2012 and respondents no. 1 & 2 in First Appeal No. 33 of 2012 has vehemently argued the fact that the appellants are unnecessarily dragging the respondents with the successive litigations. The learned Counsel initially pointed out that the suit filed by the appellants is an abuse the process of Court as according to him there is another litigation between the parties which had concluded in favour of the respondents. The learned Counsel further pointed out that considering the said aspect the conduct of the appellants discloses that they had no interest to proceed with the suit and consequently the question of interference by this Court in impugned order would not arise. The learned Counsel further pointed out that the question of holding that the impugned order was passed under Order 17, Rule 3 of the CPC cannot be accepted. The learned Counsel further pointed out that admittedly in the present case such situation did not arise as PW1 had not even completed her examination in chief. The learned Counsel further submitted that at the most the impugned order can be considered as an order passed for dismissing the suit for default of the appellants and consequently the present appeal is not maintainable. The learned Counsel has further taken me through the records and proceedings as well as roznama and pointed out that the appellants have shown disinterest in proceeding with the matter and did not pursue the litigation before the trial Court diligently and as such the question of interfering with the impugned order by this Court does not arise. The learned Counsel further pointed out that there is no due diligence by the appellants and as such the respondents should be compensated with exemplary costs. The learned Counsel, as such, submits that the appeal deserves to be dismissed.

Having heard the learned Counsel and on perusal of the records, the following point for determination arises in the present appeal:

POINT FOR DETERMINATION

Whether the learned judge was justified to dismiss the suit on the relevant date under Order 17, Rule 3 of the Civil Procedure Code.

Upon considering the rival contentions of the learned Counsel appearing for the parties, I find that taking note of the fact that this Court while disposing of the Appeals From Order preferred by the appellants came to the conclusion that the impugned order passed by the learned Judge is under Order 17 Rule 3 of the Civil Procedure Code, the contention of Shri Lawande to the effect that such order cannot be under Order 17, Rule 3 of the CPC cannot be accepted. Once this Court in the same proceedings by order dated 18/1/2011 has held that the impugned order is to be considered as one under Order 17 Rule 3 of the CPC the question of taking any contrary stand in the present appeal would not arise. The contention of Shri Lawande to the effect that the said order was passed without any notice to the respondents would not change the circumstance in any manner. Admittedly, the order impugned in the said appeals is against the order passed by the learned trial Judge wherein the respondents had raised the contentions that the application filed by the respondent under Order 9 was not maintainable as the impugned order was not an order passed under Order 17 Rule 2 of the Civil Procedure Code. Hence, it is not open to the respondents to resile their stand and raise the contention to the detriment of the rights of the appellants.

Taking note of the contentions of Shri Lawande to the effect that the appellants have not been diligent in proceeding with the matter before the learned trial Judge, I find that there is sufficient justification to the said grievance. The learned Counsel further pointed out that at least on 4 or 5 occasions prior to the relevant date the appellants have been seeking adjournments on one ground or the other. Hence, such conduct of the appellants cannot be condoned. But however, it is well settled that the previous conduct cannot influence the Court to decide any application for adjournment on a particular day.

The Apex Court in the judgment reported in State Bank of India Vs. Km. Chandra Govindji, thus:

In ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournments, if any, granted would certainly be for reasonable grounds and that aspect need not be once again examined if on the date on which adjournment is sought for the party concerned has a reasonable ground. The mere fact that in the past adjournments had been sought for would not be of any materiality. If the adjournment had been sought for on flimsy grounds the same would have been rejected. Therefore, in our view, the High Court as well as the learned District Judge and the Rent Controller have all missed the essence of the matter.

Considering the said judgment of the Apex Court, the only aspect to be considered is whether on the relevant date i.e. on 29/01/2012, the learned Judge was justified to pass the impugned order dismissing the suit. The undisputed fact which curl out from the record and the submissions of the learned Counsel is that on the relevant date the learned Counsel appearing for the appellant had orally sought an adjournment which did not find favour with the learned Judge and the matter was kept back for evidence. It is also not in dispute that the learned Counsel appearing for the appellant had also requested the learned Judge to keep back the matter after 4 p.m. It is also not in dispute that the impugned order was passed at around 3.30 p.m. It is also not in dispute that before the rising of the Court, PW1 along with the advocate were present in the Court at around 3.55 p.m. and requested the learned Judge to take up the matter and the appellants were directed to file an appropriate application.

The Division Bench of this Court in the judgment reported in 2009 (5) Mh.L.J. 900 in the case of Sanjay Dagadappa Kapse V/s. State of Maharashtra & Ors. wherein it has been held at para 5 thus:

Having regard to the number of applications, which are filed, we reiterate the observations of this Court in Shamdasani''s case and hold that where a matter is dismissed in default on account of slight negligence on the part of the party or Advocate in appearing before the Court, an oral application for restoration may be considered if made before the rising of the Court and it is not necessary for the party to file an application for restoration in writing.

As such even at an oral request of the parties it is open to the Court to allow restoration of the proceedings when such request is made on the same day before the rising of the Court. In the present case, considering that such request was made before the rising of the Court, I find that the learned Judge was not justified in refusing to set aside the order dismissing the suit. The learned judge was not justified to proceed under Order 17 Rule 3 of the CPC when substantial evidence was admittedly not recorded at the stage when the suit came to be dismissed. Considering the said aspect, I find that the impugned order passed by the learned judge dismissing the suit cannot be sustained and deserves to be quashed and set aside.

Considering the conduct of the appellants as highlighted by Shri Lawande, the learned Counsel appearing for the respondents no. 1(a) to 1(h) in First Appeal No. 30 of 2012 and respondents no. 1 & 2 in First Appeal No. 33 of 2012, I find that such dismissal of the suit can be set aside subject to payment of costs. Considering that on the relevant date the appellants were present in the Court, though belatedly, it is appropriate in the interest of justice and taking note of the past conduct of the appellants, to quantify the costs at Rs. 5,000/- in each appeal. As such, the appellants have to pay an aggregate sum of Rs. 10,000/- to the respondents no. 1(a) to 1(h) in First Appeal No. 30 of 2012 and respondents no. 1 & 2 in First Appeal No. 33 of 2012. Shri Lawande, the learned Counsel appearing for the respondents no. 1(a) to 1(h) in First Appeal No. 30 of 2012 and respondents no. 1 & 2 in First Appeal No. 33 of 2012 pointed out that costs be directed to be paid to Shri Honarato Rodrigues, who is the power of attorney holder of respondents no. 1(a) to 1(h) in First Appeal No. 30 of 2012 and respondent no. 1 in First Appeal No. 33/2012. Shri Shirodkar, the learned Counsel further pointed out that he has no objection to that effect. Hence, such costs are to be paid to respondents no. 1 & 2 in First Appeal no. 30/2012. In view of the above, I pass the following order:

ORDER

(i) The appeal is partly allowed.

(ii) The impugned order dated 29/01/2010 is quashed and set aside.

(iii) Civil Suit No. 9 of 2006 and Civil Suit No. 10 of 2006 are restored to the file of the learned Additional District Judge subject to the appellants paying an aggregate costs of Rs. 10,000/- to the respondents no. 1 & 2 and as power of attorney holder for respondents no. 1(a) to 1(h), as condition precedent.

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

(v) The parties are directed to appear before the learned Additional District Judge on 18/06/2012 at 10.00 a.m. and abide by its further directions.

(vi) The learned Judge is directed to dispose of the suits as expeditiously as possible and in any event on or before 30/06/2013.