-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 168 OF 2011 1. Mr. Shantikumar Bhalchandra Rao, married, employee, A-504, Nand Kuttir, Flat-21, Section 3, Kopar, Khairne, Navi Mumbai 400 709. 2. Smt. Sulbhadevi Bhalchandra Rao, widow of Bhalchandra Shivram Rao, A-504, Nand Kuttir, Flat-21, Section 3, Kopar, Khairne, Navi Mumbai 400 709. 3. Mrs. Smita Shantikumar Rao, married, housewife, A-504, Nand Kuttir, Flat-21, Section 3, Kopar, Khairne, Navi Mumbai 400 709. …... Petitioners V e r s u s 1. Smt. Lalita Premanand Rao, widow of Premanand Shivram Rao, Residing at Adarsh Nagar, Airport Road, Chicalim, Vasco-da-Gama, Goa. 2. Hede Consultancuy Pvt. Ltd., Having its registered office At 1st Floor, Durga Bhuwan, Tonca, Caranzalem, Panaji, Goa. …... Respondents Mr. Y. V. Nadkarni, Advocate for the Petitioner. Mr. R. G. Ramani, Advocate for the Respondent no.1. Coram :- F. M. REIS, J Date : 24 th November, 2011. ORAL JUDGMENT Heard Shri Y. V. Nadkarni, learned Counsel appearing for the Petitioner and Shri R. G. Ramani, learned Counsel appearing for the Respondent no.1. -2- 2. Shri Nadkarni, learned Counsel appearing for the Petitioner seeks leave to delete Respondent no.4. 3. Leave Granted. Respondent no.4 stands deleted at the risk of the Petitioner. 4. Rule. Heard forthwith with the consent of the learned Counsel. Shri Ramani, learned Counsel waives service. 5. The above Petition challenges the Order passed by the learned Civil Judge, Senior Division, Panaji, dated 25.08.2010, whereby the request of the Petitioner to lead evidence and recall the Order passed closing the evidence of the Petitioners in support of their defence came to be rejected. 6. Shri Nadkarni, the learned Counsel appearing for the Petitioners has assailed the impugned Order and pointed out that initially the evidence was closed at the instance of their Counsel on 05.07.2006. It is further his contention that the Petitioners are residing in Maharashtra and were not in constant contact with their Lawyer to give necessary instructions and, as such, the Lawyer was forced to close the evidence without appropriate instructions from the Petitioners. Learned Counsel further pointed out that immediately after they learnt about the actual consequences of such Order, an application was filed by the Petitioners dated 13.04.2010 to recall the said Order to enable the Petitioners to lead further evidence. The learned Counsel further pointed out that the records reveal that the -3- Petitioners were not present at the time when the endorsement was made by their Counsel to close their evidence. 7. On the other hand, Shri R. G. Ramani, learned Counsel appearing for the Respondent no.1, has supported the impugned Order. Learned Counsel has pointed out that much prior to the endorsement closing the evidence by the Advocate appearing for the Petitioners, there were many adjournments sought by the Petitioners to lead evidence. Learned Counsel has further pointed out that on 05.07.2006, though the matter was fixed for the evidence of Defendant no.4, nevertheless, the Petitioners never chose to file an application so as to enable them to lead evidence in support of their contention. Learned Counsel further pointed out that considering the conduct of the Petitioners, no interference is called for in the impugned Order. 8. On perusal of the record as well as the impugned Order, the same reveal that after 05.07.2006, the matter was adjourned on a number of occasions by filing applications by the Petitioners to the effect that the parties were trying to negotiate a settlement. It is not disputed that on the day the Order was passed closing the evidence, the Petitioners were not present in the Court. It is also not disputed that application to permit the Petitioners to lead evidence was filed by the same Lawyer. It appears that the facts narrated in the application are accepted by the Advocate who has been appearing for the Petitioners. Though Shri Ramani, the learned Counsel appearing for the Respondent no.1 may be justified to contend that there was some lack of diligence on the part of the Petitioners in taking steps to lead further evidence, I find that, in the interest of justice, an opportunity can be -4- given to the Petitioners to lead evidence in support of their contention in their written statement. Besides that, there is no procedural prejudice to the Respondents in case the Petitioners are permitted to lead evidence as it is not disputed that the evidence of Defendant no.4 had not yet begun though a copy of an affidavit has been furnished to the Respondents. No doubt, the Petitioners would have to compensate the Respondents for the lack of diligence in pursuing the matter from time to time. Mr. Nadkarni, at this stage, offers to pay costs of Rs.10,000/- on such count. As such, I find that the impugned Order deserves to be set aside and an opportunity be given to the Petitioners to lead evidence. 9. Considering the above, I pass the following : ORDER (i) The impugned Order dated 25.08.2010 is quashed and set aside. (ii) The Petitioners are permitted to lead evidence in support of their case by examining Petitioner no.1 in accordance with law subject to the Petitioners paying a sum of Rs.10,000/- to the Respondent no.1 as condition precedent. (iii) Rule is disposed of in the above terms. (iv) Petition stands disposed of accordingly with no order as to costs. F .M. REIS, J. arp/*