IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 585 OF 2008 MRS. VIJAYA PALEKAR ... Petitioner Versus MR. ANTHONY FERNANDES (DEC) THROUGH LR\'S AND 2 ORS., ... Respondents Mr. D' Costa, Senior Advocate with Mr. J. Abreu Lobo, Advocate for he Petitioner. Mr. P. Gadkar, Advocate for the Respondents. Coram:- S. C. DHARMADHIKARI, J. Date:- 25th September, 2008 P.C. Heard finally by consent. 2. Learned Advocate appearing for the Respondents waives the notice. 3. The application filed by the petitioner, original plaintiff, for recalling the Order dated 24.07.08 has been dismissed and that is how this Petition. It appears that on the relevant date i.e. 24.07.08, the Court found that neither the petitioner/plaintiff nor her Advocate was present. This was the position even at the prior date on 10.07.08. It is in such circumstances, that the matter was adjourned on 24.07.08 and it being an old case, the Court did not thereafter protect the petitioner/plaintiff. For such reasons, the application for recalling the Order dated 24.07.08 has been dismissed. 4. The application of the petitioner/plaintiff states that on 10.07.08, the matter was fixed for appearance of legal representatives of deceased defendant no.1 and, thereafter, it was adjourned for evidence. The plaintiff was in Mumbai. She lost one of her close relative in Mumbai. Further, on 22.07.08, the brother of the plaintiff's Advocate who had come down from U.K. on a holiday, fell sick. He had to be taken to Manipal Hospital, at Dona Paula. On 23.07.2008, he was admitted and, therefore, the Advocate could not remain present on 23rd and 24th July, 2008. It is in these circumstances, that the Order was sought to be recalled. The learned Judge proceeded on the basis as if the petitioner/plaintiff is not interested in going ahead with the matter. While it is true that the petitioner/plaintiff should have been diligent and even the Advocate should have made alternate arrangement, yet, in the peculiar facts of this case, the Court below should not have non-suited the petitioner/plaintiff, as the grounds for absence were genuine. In such circumstances, the Writ Petition is allowed. The impugned Order is quashed and set aside and the learned Judge to allow the petitioner/plaintiff to step into the witness box and lead her evidence provided she attends the trial Court on 06.10.08. S. C. DHARMADHIKARI, J. arp/*