1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.21 OF 2009 Shri Ramchandra or Raghunath Devasthan, Guimonem, Piligao, Bicholim Taluka, Represented by its special attorney Shri Suresh Govind Chari R/o Duler, Mapusa, House No.62 .. Petitioner. V e r s u s 1. Shri Ramchandra Anant Garde, (Sarpanch of Piligao) 2. Smt. Mangala Ramchandra Garde Both r/o Sharada Colony, Bordem, Bicholim, Goa. 403 504. 3. Shri Ramdas Anant Garde 4. Smt. Usha Ramdas Garde Both r/o. Bardem Bicholim, Goa 403 504. 5. Shri Ramkrishna Anant Garde 6. Smt. Suneeta Ramkrishna Garde Both r/o Naik Nagar, Bordem, Bicholim, Goa 403 504. 7. Shri Shridhar Anant Garde alias Balu Anant Garde 8. Smt. Trupti Shridhar Garde Both r/o Guimonen, Piligao Taluka Bicholim, Goa 403 504 9. Shri Durgadas Anant Garde (Bachelor) 10. Shri Ratnakant Anant Garde (Bachelor) Both /o Guimonem, Piligao Taluka Bicholim, Goa 403 504. 2 11. Smt. Vidhya Anant Garde alias Vidhya Suhas Thakur 12. Shri Suhas Shripad Thakur Both r/o Lamgao Bicholim Goa 403 504 13. Shri Venkatesh Ramkrishna Garde Major, resident of Guimonem, Piligao, Taluka Bicholim, Goa – 403 504. 14. Dr. Vinayak Venkatesh Garde 15. Smt. Pratima Vinayak Garde Both r/o Anandi Nursing Home Marcela Goa- 403 107. 16. Shri Bhaskar Venkatesh Garde 17. Smt. Madhumati Bhaskar Garde Both r/o Behind Bhakhale's Clinic Curti, Ponda Goa 403 401 18. Shri Rohidas Chafadkar 19. Smt. Sumitra R. Chafadkar Both r/o Kazi Bldg., Opp. Hotel Pearl Near Petrol Pump, Ponda Goa 403 401. 20. Shri Shripad Sawaikar (expired) A) Sameer Shripad Sawaikar B) Swapna Shripad Sawaikar Both are majors in age Residents of Panshe, Pissurlem, Honda, Satteri, Goa 403 505. 21. Smt. Laxmi Shripad Sawaikar Both r/o Panashe, Pissurlem, Honda, Sattari, Goa 403 505 22. Shri Janardan Nambiar 3 23. Smt. Malini Janardan Nambiar Both r/o. Central Electric Department Colony, near M.P.T. IInd Colony, IV Bldg., Headland Sada, Vasco, Goa 403 802. 24. Shri Atchut Ramkrishna Garde (deceased) 25. Smt. Rukmini Atchut Garde (since deceased) though legal heirs 25(a) Ashok Atchut Garde (Bachelor) (expired) deleted as per order dated 28/07/2010. 25(b) Anand Achut Garde and his wife 25(c) Shamal Anand Kiran Garde Both r/o. Barazan, Bicholim Goa. Both residents of Near Venus Theatre, Shahpuri, Kholapur, Maharashtra. 26. Ideal High School, Piligao, represented By its Managing Committee a) Chairman, Jaidev Apa Gaonker b) Vice President- Mohan Naik c) Manager Secretary R. A. Garde d) Treasurer Damodar M. Mashelkar 27. Kemo Nilu Bomkar (deceased) 27(a) Mr. Shrikant Kemo Bomonkar, Son of late Kemo Bimonkar Major in age resident of Piligao 4 Bicholim, Goa 28. Smt. Satyawan Soiru Bimonkar 29. Laxmi Kusta Bimonkar All major in age, resident of Piligao, Bicholim, Goa 29(a) Mr. hnu Kushta Bimonkar s/o late Kushta Bimonkar, major in age, married and his wife (b) Mrs. Prabhavati Vishnu Bimonkar, major, married, wife Vishnu Bimonkar (c) Mr. Ramakant Kushta Bimonkar Son of late Mr.Kushta Bimonkar Major, maried and his wife, (d) Mrs. Rama Ramakant Bimonkar, Wife of Ramakant Bimonkar, major in age, Resident of Piligao, Bicholim, Goa. .. Respondents Mr. V. A. Lawande, Advocate for the petitioner. Mr. Amrut Kansar, Advocate for respondent Nos.1 to 10. CORAM : A. P. LAVANDE, J. DATE : 26 th April, 2011. ORAL JUDGMENT : Heard Mr. Lawande, learned Counsel for the petitioner and Mr. Kansar, learned Counsel for respondent nos.1 to 10. None appears on behalf of the other respondents, though served. 2. Rule. By consent heard forthwith. 5 3. By this petition under Article 227 of the Constitution of India, the petitioner challenges two orders dated 3rd September, 2007. By the first order the application filed in Regular Civil Suit No.13/1994 by the petitioner/ plaintiff for adjournment has been dismissed by Civil Judge, Senior Division, Bicholim and by the second order, the suit of the plaintiff was dismissed on the ground that the plaintiff had not led any evidence. 4. The petitioner herein filed the above suit seeking reliefs of declaration and injunction against the defendants. The suit was contested by the defendants. It appears that when the suit was fixed for evidence of the plaintiff several adjournments were sought by the plaintiff for leading evidence. On 3rd September, 2007, when the matter was fixed for evidence of the plaintiff, an application for adjournment was filed by the plaintiff supported by medical certificate of Shri Suresh Chari, the attorney of the plaintiff, who was to be examined on the said date. The trial Court dismissed the application on the ground that the plaintiff had several opportunities to make alternate arrangement and that they have been constantly asking adjournments from 26th February, 2007 and consequently, dismissed the suit for not 6 leading evidence by the plaintiff. 5. Mr. Lawande, learned Counsel for the petitioner/ plaintiff submitted that serious prejudice would be caused if the impugned orders are not set aside in as much as it is only Suresh Chari, the attorney of the Devasthan, who is conversant with the facts in the suit and if he is not allowed to examine in support of the plaintiff's case, serious prejudice would be caused to the plaintiff. He further submitted that the trial Court ought to have granted the application for adjournment supported by the medical certificate by imposing costs and consequently, ought not to have dismissed the suit for want of evidence. 6. Mr. Kansar, learned Counsel for respondent nos.1 to 10 has supported the impugned orders and submitted that no case is made out for interference with the impugned orders. 7. Having heard the learned Counsel for the petitioner and respondent nos.1 to 10, I am of the considered opinion that it would be appropriate in the interest of justice to set aside the impugned orders by imposing heavy costs on the petitioner. No doubt, the petitioner had sought several 7 adjournments for leading evidence in the suit. However, the fact remains that on 3rd September, 2007 when the matter was fixed for evidence of the plaintiff, Shri Suresh Chari, the attorney of the plaintiff was ill and as such, could not attend the Court. This being the factual position, I am of the considered opinion that the plaintiff deserves to be given an opportunity to lead evidence in the suit by restoring the suit subject to payment of costs. 8. In view of the above, both the impugned orders dated 3rd September, 2007 are quashed and set aside and consequently, the suit is restored subject to payment of costs of Rs.10,000/- in favour of respondent nos.1 to 10 herein since the other respondents have chosen not to put in appearance in spite of service. The costs shall be deposited in the trial Court within six weeks. Liberty to respondent nos.1 to 10 herein to withdraw the costs after they are deposited. The parties are expected to cooperate with the trial Court in early disposal of the suit, which is of the year 1994. The parties to appear before the trial Court on 14th June, 2011 at 10.00 a.m. 9. Rule is made absolute in aforesaid terms. A. P. LAVANDE, J. SMA