1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 433/2008 Dr. K. Subbaramaiah Proprietor of Proprietary Concern functioning under the name and style of M/s. The White Horse Distilleries, Door No.3-10-67, Trunk Road, Opp. Railway Station, Nayudupeta, Nellore District, Andhra Pradesh. .......... Petitioner. Versus SPECTRUM ADVERTISING DESIGN a sole proprietary concern registered under Small Scale Industries represented by its Sole proprietor Mr. Andre Da Costa, son of Mr. Joseph Sotter Da Costa having its administrative Office at H.No.1221,Curtorim, Salcete, Goa. .......... Respondent. Mr. Shivan Dessai, Advocate for the Petitioner. Mr. Anthony D'Silva, Advocate fort he respondent. CORAM : S.C. DHARMADHIKARI, J. Date : 5th September, 2008. ORAL ORDER : 1. By this petition under Article 227 of the Constitution of India, the petitioner-original defendant in Special Civil Suit No.47/2003, challenges 2 an order dated 4.7.08, passed by the Additional Civil Judge, Sr. Division, at Margao. 2. The respondent/plaintiff filed the suit for recovery of money. The suit is filed in the year 2003. The plaintiff's witness stepped into the Witness Box and the petitioner-defendant cross examined the said witness. Thereafter, the cross examination concluded on 18.4.08 and the matter was adjourned for evidence of the petitioner-defendant. 3. On 9.6.08, the petitioner-defendant and his Advocate was absent and thereafter, a last opportunity was given and the matter was adjourned to 20.6.08. On that day, the petitioner-defendant as also his Advocate were absent and that is how the learned Judge proceeded to record that ample opportunities were given, but the petitioner has not led any evidence in defence. The learned Judge, therefore, closed the defence evidence and placed the matter for arguments. 4. The petitioner-defendant made an application Exhibit 45-D to recall the order closing defence evidence. That application was opposed by the respondent-plaintiff and after hearing both sides, the learned Judge has proceeded to reject the same. This order is challenged before me. 3 5. In the application for reopening of the evidence, the learned Advocate appearing for the petitioner stated that he could not appear due to personal difficulty and even on 20.6.08, when the matter was called out, the petitioner-defendant could not remain present as he was undergoing medical treatment. The petitioner-defendant could not contact his Advocate and, therefore, was unable to remain present. 6. An affidavit has been also filed by the petitioner's Advocate. In para 2 of the same, that is what is stated : “2. I say that on 18/04/2008, Respondent examined PW-1 as its witness and closed its evidence and the matter was posted for evidence of the Respondent on 09/06/2008. However, I reached late on the said date and therefore was marked absent. In the morning of 20/06/2006, my uncle Mr. Deepak Halornekar who was admitted in Goa Medical College Bambolim and who was operated became seriously ill on account of which I had to rush to Goa Medical College in Bambolim and could not attend the matter on the said date. On account of the tension and nervousness, I could not even inform my lawyer to hold for me in the said matter. In the circumstances, I could not attend the hearing on 20/06/2008. I went to the concerned court on the following date i.e. on 21/06/2008 and I was informed by 4 the court staff that the said matter was not kept on 04/07/2008. However I was not aware that the evidence of the Petitioner was closed.” 7. Now, it is sought to be urged on behalf of the respondent- plaintiff before me that the application for recalling the order and the permission to lead evidence sought by the petitioner-defendant sets out one cause, namely ailment of the petitioner, but the affidavit of the Lawyer speaks of the difficulty faced on account of his uncle's hospitalization. In such circumstances, the version is not reliable and the learned Judge, therefore, was right in rejecting the application. He urged that the order passed by the Trial Court is in exercise of discretion and cannot be termed as arbitrary or capricious so as to warrant interference under Article 227 of the Constitution of India. He submits that all such orders which are interlocutory do not require interference as the learned Judge has assigned reasons for closing the evidence. In such circumstances, merely because another view is possible, this Court should not interfere with such orders. 8. On the other hand, the petitioner's Counsel contends that the Court below had before it only the plaintiff's evidence. The petitioner- defendant had yet to lead evidence. However, he was not present, nor his Lawyer. In such circumstances, the Court below could have taken recourse 5 to Order 17, Rule 2 of the C.P.C. and disposed off the suit in the manner provided by Order 9 thereof and the learned Judge could not have passed an order closing the defence case. 9. After hearing both sides and perusing with their able assistance the impugned order, in my view, it is not necessary to enter into any larger controversy. The decision of the learned Single Judge of Rajasthan High Court in Arjun Singh vs. A.D.J., Behror and anr., reported in AIR 2004 Rajasthan 246 relied upon by the learned Counsel for the respondent is obviously distinguishable. There four months' time was granted and yet, the Petitioner before the Rajasthan High Court did not turn up to lead evidence in rebuttal. Despite this, last opportunity was granted to the Petitioner and evidence closed. It is at that stage that the petitioner questioned the order closing evidence. In the peculiar facts of that case, the learned Single Judge of the Rajasthan High Court reached the conclusion that the writ petition was not maintainable. 10. Principles for interfering in writ petitions under Article 227 of the Constitution of India are well settled. The Court below having failed to exercise powers conferred in it to permit defence evidence being led despite its clear orders to the contrary passed earlier, would show that unless this 6 Court steps in, there would be a failure of justice. The petitioner cannot be expected to complete the arguments only on the basis of the plaintiff's evidence and thereafter challenge the final orders in the suit, if adverse to him and make a request that he be permitted to lead evidence in support of his case. It is true that one cannot presume that the suit would be decreed on the evidence already before the Court, yet, in the peculiar facts of this case, no prejudice would have been caused if one last opportunity was given to the petitioner to lead evidence and by imposing appropriate conditions. The impugned order does not assign any reason as to why the version of petitioner- defendant that he remained absent on two occasions on medical grounds was not acceptable. The opportunity is straight away denied, more so, when the petitioner seeks it on medical grounds. It may be that the Lawyer's affidavit also presents an additional reason as even he was handicapped on the relevant date. However, that does not mean that the petitioner's version of his own illness is false. That is also not the reason assigned for rejecting the request. In such circumstances and when the petitioner resides out of Goa, one last opportunity deserves to be granted. 11. Accordingly, writ petition succeeds. The impugned order is quashed and set aside. However, the petitioner to appear before the trial Court on 22/9/08 and if he remains present, so also his Lawyer, the petitioner be 7 permitted to lead evidence in defence. However, it is clarified that if the petitioner does not avail of this final opportunity, his right to lead evidence stands forfeited and thereafter the suit to proceed in accordance with law. In the peculiar facts of this case when the petitioner was absent on two occasions, it is directed that he shall deposit costs which are quantified at Rs.2500/- prior to the date for appearance and the costs to be deposited in the Trial Court. Petition disposed off. S.C. DHARMADHIKARI, J. ssm.