1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 93 OF 2010 1. Vijaya Bank A Body corporated constituted Under the banking companies (Acquisition and transfer of Undertaking) Act, 1969 having itshead office at 41/2 M.Groad Bangalore 560001 and having branch office at Mapusa Bardez Goa represented by its Branch Manger. .. Petitioner Versus 1. Smt. Sharmila Shrikant Alornekar, widow of late Shrikant Alornekar, H.No.301/6 Khagin wado, Colvale, Bardez, Goa. 2. Mr. Darshan Yashwant Halarnekar, r/o. House No.309, Colvale, Bardez, Goa. .. Respondents Mrs. A. A. Agni, Advocate for the petitioner. Mr. J. Godinho, Advocate for the respondent No.2. CORAM :- U. D. SALVI, J. DATE : 6 th August, 2010. ORAL JUDGMENT : Rule returnable forthwith. By mutual consent, taken up for final hearing. Heard. Perused petition and the annexures therewith. 2 2. Closure of the petitioner's / plaintiff's evidence for the reason of the absence of the petitioner on the given date and subsequent dismissal of the application moved on behalf of the petitioner for setting aside the order dated 20th October, 2009 closing the plaintiff's evidence by the learned CJJD, Mapusa, Goa has given rise to the present petition. 3. It is submitted on behalf of the petitioner that the default in appearance on the given date occurred as a result of the mistake committed by the petitioner's Advocate to record the correct date of appearance and it would be harsh to stop the petitioner from leading their evidence any further for such lapse. 4. Learned Advocate Godinho for the respondent No.2 / defendant No.2 submitted that the conduct of the petitioner in pursuing the suit being Regular Civil Suit No.58/2008/D for recovery of money in the Court of CJJD, Mapusa has been not free from blame and the petitioner/ plaintiff had taken considerable time for making beginning in recording the evidence before the Trial Court. He placed a copy of the rojnama before this Court. Indeed, several opportunities were given to the petitioner for leading their 3 evidence since framing of issues on 2nd July, 2009 and ultimately, the affidavit-in-evidence came to be tendered on behalf of the petitioner on 5th October, 2009. Costs were imposed by the trial Court for adjournment sought by the petitioner/ plaintiff for placing their affidavit-in-evidence on record. The trial Court did see the reason in giving such time and compensating the defendants from time to time for delay caused in making beginning of the evidence before the trial Court. What, therefore, remained to be considered is the lapse on the part of the petitioner in appearing before the Court on the next given date. Taking account of the petitioner's conduct, the learned trial Court was rightly upset while closing the evidence on the given date and this mood persisted while dismissing the application moved by the petitioner for setting aside the order dated 20th October, 2009 closing the evidence of the petitioner / plaintiff. 5. The learned trial Court observed that the order closing the evidence came to be made to meet the ends of justice in the given situation and setting aside of such order would amount to re-adjudication of the same order. What was to be examined at the time of deciding the application moved by the petitioner for setting aside the order dated 20th 4 October, 2009 for closing the evidence were the circumstances explaining the lapse and not the past conduct of the petitioner prior to filing of affidavit-in-chief. This aspect was completely overlooked by the learned Trial Court and he became prey of his mood which lingered since the closing of the evidence. 6. What is shown as a cause for the lapse committed by the petitioner has not been disputed, and it justifies setting aside of the order closing the evidence, particularly for the reason that the complete evidence would help the Court to resolve the controversy in the suit in just and complete manner. However, the respondents/ defendants need to be adequately compensated for a day lost in the Court on the date fixed for cross-examination of the petitioner's witness. Hence, the order. (i) Rule is made absolute in terms of prayer clause (a) with costs. (ii) The petitioner shall deposit costs of the petition as well as Rs.1,000/- in the trial Court. (iii) Parties shall appear before the learned CJJD, Mapusa, Goa on 23rd August, 2010. (iv) The petitioner shall keep PW1 Ramesh Rai, 5 its Manager present before the Court on 23rd August, 2010 for the purposes of his cross- examination. U. D. SALVI, J. SMA