IN THE HIGH COURT OF BOMBAY AT GOA *** WRIT PETITION NO. 569 OF 2003 Edgar Melo Furtado, major of age, with office S-2, 2ns Floor, Fatima Chambers Building, Minguel Loyola Furtado Road, New Market, Margao, Goa. ... Petitioner. Versus 1. Janet Fernandes, d/o Francis Fernandes, spinster, major of age, with office F-4, lst Floor, Fatima Chambers Bldg., Minguel Loyola Furtado Road, New Market, Margao, Goa, and 2. M/s Ruby Builders, a partnership Firm duly constituted under the Indian Partnership Act, 1932, with its office on the first floor, Fatima Chambers, Margao, Goa. Represented by its duly constituted Attorney Mr. Haroon Ibrahim, now having office at Carpenters, 31st January Road, Panaji. ... Respondents. Shri C. A. Coutinho, advocate for the petitioner. Shri S. D. Lotlikar, Senior Advocate with Shri A. D. Bhobe, advocate for respondent no.1. CORAM : SMT. NISHITA MHATRE, J. DATE : 22nd January, 2004. ORAL JUDGMENT Rule. Rule made returnable forthwith. This petition has been filed impugning the Order passed by the Additional District Judge, South Goa, at - 2 - Margao, in Miscellaneous Civil Application No.73/2002 and the Order passed by the Civil Judge, Junior Division, Margao, in Civil Miscellaneous Application No. 445/2001. These orders have been passed consequent upon an application filed by the petitioner for setting aside the ex parte decree against him and for condoning the delay in filing such an application. The ex parte decree against the petitioner was passed on 31st August, 1998. The defendant in the trial court, i.e. the petitioner herein was served with a notice of execution on 30th March, 2001 when, according to the petitioner, he came to know for the first time, that such a decree had been passed against him. The defendant then approached his lawyer in April, 2001. However, according to the defendant the file was not traceable in the lawyer’s office and it was found only in August, 2001. Immediately thereafter, the defendant filed an application for setting aside the ex parte decree passed against him with an application for condoning the delay. Both the trial Court and the Appellate Court have found that the petitioner was not vigilant enough while prosecuting his case and that he had been served with a letter from the advocate that the latter would be withdrawing his appearance. Both the Courts were of the view that the petitioner ought to have taken steps immediately thereafter to engage another advocate and to defend the suit. Both the Courts have found that the delay of five months in filing the application for setting aside the decree, was not to be condoned. - 3 - 2. Heard advocates. Although the petition is vehemently opposed on behalf of the respondents, I am of the view that the petitioner could not be considered negligent in defending the suit. Obviously, he was under the impression that his advocate was appearing and would represent him effectively in the suit. In fact, the advocate whom he had engaged was not able to trace the files pertaining to the suit when the petitioner was served with the execution application. Therefore, negligence could not be attributed to the petitioner. A reasonable and sufficient ground has been made out by the petitioner to condone the delay. It is not in all cases of delay that the Court should take a stringent view and refuse to condone it. 3. The learned advocate appearing for the petitioner has cited the judgments of the Apex Court in the cases of N. Balakrishnan vs. M. Krishnamurthy N. Balakrishnan vs. M. Krishnamurthy N. Balakrishnan vs. M. Krishnamurthy, 1998(5) SCALE 105, Ram Nath Sao aias Ram Nath Sahu & Ors. vs. Ram Nath Sao aias Ram Nath Sahu & Ors. vs. Ram Nath Sao aias Ram Nath Sahu & Ors. vs. Gobardhan Sao & Ors., Gobardhan Sao & Ors., Gobardhan Sao & Ors., AIR 2002 SC 1201 and M. K Prasad vs.P. M. K Prasad vs.P. M. K Prasad vs.P. Arumugam Arumugam Arumugam, AIR 2001 SC 2497, wherein the Apex Court has held that although there could be some lapse on the part of the litigant concerned in every case of delay, this would not be enough to turn down his plea and to shut the door against him. If the application put forth does not smack of mala fides or is not put forth as a dilatory strategy, the Court must show utmost consideration to the suitor. In the present case, there is no doubt that the petitioner was lax in - 4 - defending the suit, but it could not be said that his attitude was because of certain mala fides or as a part of a dilatory strategy. In view of this, the impugned Order is set aside. Rule made absolute with costs.. In view of the suit being of the year 1991, the suit be disposed of as expeditiously as possible and in any event within a period of one year from today. SMT. NISHITA MHATRE, J. mc.