1 IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 603 OF 2010. Smt. Belarmina D'Souza alias Carmelina Belarmina D'Souza, widow of David D'Souza, aged 57 years, domestic affairs, resident of Gaunsavaddo, Sodiem, Siolim, Bardez Goa. …....... Petitioner. Versus 1 Village Panchayat of Sodiem, Siolim, represented by its Sarpanch, Siolim, Bardez Goa. 2 Mr. Jose Pereira, major, businessman; 3 Mr. Peter Rodrigues, major, Tailor; 4 Mr. Babi Pednekar, major, agriculturist (Respondent no. 4 be deleted by Order dated 10.10.2002) All residents of Gaunsavaddo, Sodiem, Siolim, Bardez-Goa. …....... Respondents. Mr. D. Pangam, Advocate for the petitioner. Mr. P. S.Lotlikar, Advocate for the respondent no.1. 2 CORAM :- A. P. LAVANDE, J. DATE : 1 st October, 2010. ORAL JUDGMENT : Heard Mr. D. Pangam, learned Counsel for the petitioner and Mr. P. S. Lotlikar, learned Counsel for the respondent no.3. Respondent nos. 1, 2 and 4 though served are absent. 2. Rule by consent heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioner challenges the order dated 6.8.2009 and 7.7.2010 passed by the learned Civil Judge, |Senior Division "A" Court Mapusa in Regular Civil Suit No. 35/1993/A by which the evidence of the plaintiff has been closed and the application for recall of order closing the evidence of the plaintiff has been dismissed. 4. Briefly, the facts leading to filing of the present petition are as under:- 3 Petitioner filed the above suit against the respondents/ defendants seeking permanent injunction. The plaintiff examined herself. Thereafter Mr. Mahadev Tuenkar, PW2 was partly examined on behalf of the plaintiff. On 16.6.2009 the plaintiff sought adjournment on the ground that the Advocate appearing for the plaintiff was hospitalised. The matter was adjourned to 23.7.2009 for continuation of the evidence of the plaintiff witness. On 23.7.2009 again time was sought on the same ground which was granted. On 6.8.2009 the plaintiff again sought adjournment on the very same ground. The defendants did not seriously oppose the application. However, the trial Court passed an order closing the evidence of PW2 Mr. Mahadev Tuenkar. Thereafter the plaintiff filed an application for recalling of the said order which has been dismissed by the impugned order dated 7.7.2010. By the present petition, the petitioner has challenged both the orders. 5. Mr. Pangam, learned Counsel appearing for the petitioner submitted that if the impugned orders are allowed to stand, serious prejudice would be caused to the plaintiff in as much as the plaintiff would be deprived of an opportunity of 4 proving her case which will entail in dismissal of the suit. Mr. Pangam further submitted that in the interest of justice both the orders be set aside by putting the petitioner to terms since the impugned orders have virtually deprived the petitioner/plaintiff from proving her case set up in the plaint. 6. Per Contra, Mr. P. S. Lotlikar, learned Counsel appearing for the respondent no.3 has supported the impugned orders. As stated above none appeared on behalf of respondent nos.1, 2 and 4. 7. I have considered the rival submissions and perused the record. 8. Perusal of the order dated 7.7.2010 discloses that the trial Court has dismissed the application primarily on the ground that the order dated 6.8.2009 by which the evidence of the PW2 was closed was not challenged by the plaintiff. Moreover, the defendants have also made an endorsement on 5.2.2009 that they do not want to lead any evidence. 5 9. No doubt, the plaintiff ought to have challenged the order dated 6.8.2009 by which the evidence of PW2 was closed and the second application filed by the plaintiff for recall of the order dated 6.8.2009 was not maintainable. However, the fact remains that by the impugned order the petitioner/plaintiff has been deprived of any opportunity of proving her case as set up in the plaint. Therefore, I am of the considered opinion that the interest of justice requires that the plaintiff must be given an opportunity to lead evidence of PW2. Moreover, on 6.8.2009 the defendants had not oppose the application for adjournment sought by the plaintiff. Therefore in my considered opinion, interest of justice would be served by setting aside both the orders and putting the plaintiff to the term. 10. In view of the above discussion, the order dated 6.8.2009 passed by the trial Court closing the evidence of Mr. Mahadev Tuenkar, PW2 and order dated 7.7.2010 refusing to recall the order dated 6.8.2009 are quashed and set aside subject to the petitioner/plaintiff paying costs of Rs.5,000/- (Rupees five 6 thousand only) to the contesting respondent i.e respondent no.3. 11. The petitioner shall deposit the costs in the trial Court within a period of two weeks. Upon the deposit, liberty to the respondent no. 3/defendant no.3 to withdraw the said amount. The plaintiff shall not seek unnecessary adjournment in the matter and in the event her Advocate is not in a position to appear before the Court, she will make alternate arrangement. It is made clear that since plaintiff is permitted to further examined PW2, defendants are at liberty to lead defence evidence if they so desire. 12. In view of the above, the interim order 11.8.2010 stands vacated. The parties shall appear before before the Trial Court on 29.10.2010 at 10.00a.m. The trial Court shall proceed to dispose of the suit in the light of directions given above and in accordance with the law. A. P. LAVANDE, J. vn*