1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO 241 OF 2004. 1. Smt. Evaristina Godinho Fernandes, Widow of late Sebastiao Francisco Fernandes, adult, housewife, and her children. 2. Mr. Blasco Sebastiao Fernandes, son of late Sebastiao Francisco Fernandes, adult, Both residents of H.No.380, Naikwaddo, Sarzora, Salcete, Goa. … Petitioners. V/s 1. Shri Anastiacio Conceicao Rabindranath Dias e Pereira, adult, businessman and his wife, 2. Smt. Maria Rosita Yvette Pereira, adult, housewife, both residents of H.No. 70, Deussua, Chinchinim, Salcete, Goa. 3. Shri Kuthbuddin E. Antroli, adult, businessman, and his wife, 4. Smt. Bibijan Kuthbuddin Suleman, adult, housewife, both residents of C/o Shantadurga Sawmill, Cuncolim, Salcete, Goa. … Respondents. 2 Mr. S. G. Bhobe, Advocate for the Petitioner. Mr. C. A. Fereira, Advocate for the Respondents. Coram : A. H. Joshi, J. Reserved for judgment : 5th October, 2009 JUDGMENT 1. This is a writ petition by the defendants. 2. They did not file written statement within 90 days. 3. Application dated 16.12.2003, was filed by defendants by making following prayer: “ In view of the genuine difficulty of the defendants Nos. 1 and 2 - in obtaining documents necessary to file written statements- it is prayed that the delay in filing the written statement of the defendants Nos. 1 and 2 - beyond the period of 90 days from service of summons on them - be condoned and the written statement of the defendants Nos. 1 and 2 be taken on record.” (quoted from page 25 of paper book ) 4. By way of grounds, they had offered following explanation: 1. The defendants nos. 1 and 2 had sought time to file their written statement for the reason that the 3 defendants had applied to the Director of Archives, Panaji on 19.8.2003 for a certified copy of Orph. Inventory Proceedings instituted on th death of Lourenco Francisco Dias, and which was issued to the defendants on 23.9.2003; thereafter the translation of the said document- which runs into numerous pages- from Portuguese into English had to be carried out and a copy of its English translation was issued to the defendants only recently. 3. Besides the above document, the defendants also rely on other information/documents i.e. details pertaining to matriz certificate No. 784 relied on by the plaintiffs, birth/marriage records of the ancestors of the defendants, besides various other information/certificates and documents which even today are yet to be obtained. 4. The defendants could apply for copies of the said documents only after going through the copies of documents submitted by the plaintiff under serial nos. 3 to 5 of the list of documents- issued to the defendants in August 2003- and after going through the registration document in the Sub-Registration Office. (Quoted from pages 24 and 25 of paper book) 5. The said application was opposed by the plaintiff contending that the reasons offered were “lame excuses”. The learned trial court passed order on 31.1.2004 and by a speaking order rejected the application. 6. Perusal of the order discloses that the 4 learned trial judge took a view that no defendant can insist as a matter of right that after expiry of period prescribed under law, the written statement should be taken on record, which could be allowed depending upon the exercise of judicial discretion. 7. As regards factual aspect of sickness, the learned trial judge found that:- (a) Any medical evidence in support was not offered. (b) The period of 90 days had expired on 17.12.2003, while the application was filed on 5.12.2003. (c) The reasons given for inordinate delay were not satisfactory. 8. It seems that the learned trial court did not find it convincing that much time is required in procuring and translating the documents which were in Portuguese language into English. 9. Period of 90 days available after service for filing written statement expired on 17.10.2003. Present writ petition was filed on 6.5.2004 and interim stay of further proceedings was granted on 29.7.2004 though a notice of final disposal was issued, mostly because parties did not agree for 5 final hearing. 10. The petition is pending for last 5 years and 5 months. Record does not show that any efforts were made by respondents for early disposal of the petition which could have achieved the object of early disposal of the suit. 11. The purpose of opposing enlargement of time for filing written statement which was primarily for early disposal of the suit is already frustrated due to the plaintiff's objection and pendency of present petition. 12. Now this Court has to see whether the exercise of jurisdiction in rejecting the prayer for enlargement of time for filing written statement which was delayed by about two months was done with due and proper exercise of discretion. 13. This Court is of the view that, getting the translation of Portuguese documents into English and preparing of written statement could ordinarily take even a month or two and the reasons assigned cannot be denoted to be figment of imagination or untrue. 6 On the facts of the case, the delay which is caused cannot be denoted as inordinate and inexcusable. 14. In the background of the conduct of the respondents-plaintiffs, they did not come up for final hearing nor they have made efforts for early disposal of present writ petition, this court is satisfied that the petitioner-defendant has made out a satisfactory case for granting their prayer for enlargement of time by condoning the delay caused in filing the written statement and for direction to trial court to take their written statement on record. 15. In the result, petition succeeds as follows:- (a) Impugned order dated 31.1.2004 passed by C.J.J.D., Margao in R.C.S. No. 129/03/F refusing prayer for taking the written statement on record is set aside. (b) Application filed by defendants Nos. 1 and 2 praying for leave to file written statement by condonation of delay caused in filing the written statement in R.C.S. No. 129/03/F is hereby 7 allowed. (c) Written statement tendered by defendants be taken on record. (d) Defendant Nos. 1 and 2 shall pay to the plaintiff cost of Rs. 300/- which be added in the cost of suit. (e) Rule is made absolute in above terms. (f) In the circumstances, parties are directed to bear own costs of this petition. A. H. JOSHI, J. MF/-