1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 794 OF 2009 Shri Rex Fernandes, major, presently residing at House No.1291, Baman Waddo, Siolim, Bardez, Goa. ... Petitioner versus Mrs. Tessie Josephine Correia, major, widow of Mr. Adolph Ignatius Wilfred Correia, resident of “Havana”, 1st floor, Flat No.6, Seven Bungalows, Versova Road, Andheri(West), Mumbai 400 061. (Plaintiff since deceased represented through legal heirs/legal representatives). 1(a) Mr. Brian Ethelbert Correia, son of Mr. Sabino A.E. Correia, brother of late Mr. Adolph I.W. Correia, resident of Flat No.5, 1st floor, “Havana” Co-op. Housing Society Ltd., Jayaprakash Road, Seven Bungalows, Andheri West, Mumbai, 400 061. 1(b) Mr. Tyrone N. D'Souza, son of late Shri Nicolas Thomas D'Souza, brother of late Smt. Tessie Josephine Correia, and his wife; 1(b)(b) Mrs. Patricia D'Souza, sister in law of Smt. Tessie 2 Josephine Correia, both residing Opp. Shatranjay Darshan, Cosy Cottage, Flat No.1, Ground floor, Seth Motishah Cross Lane, Byculla East, Mumbai 400 027. 1(c) Mr. Aloysius Andrew Aguiar, widower, husband of late Smt. Noreen Cirila Aguiar, and brother-in-law of late Smt. Tessie Josephine Correia, resident of flat no.3, Ground floor, “Gulshan” Co-op. Housing Society Ltd. Gavthan Lane No.1, Off. Swami Vivekananda Road, Andheri West, Mumbai 400 058. 1(d) Mrs. Agnes A. D'Souza, widow, wife of late Mr.Adrian Franklin D'Souza, sister in law of late Smt. Tessie Josephine Correia, resident of D-503, Poonam Residency 2, Holy Cross Extn. I.C. Colony, Borivali West, Mumbai-400 092. 1(e) Mrs. Anna N. D'Souza, widow, wife of late Mr. Noel Leslie B. D'Souza, sister in law of late Smt. Tessie Josephine Correia, resident of B-12, Church Road, Marol Village, Andheri East, Mumbai 400 059. 1(f) Ms. Judith N. D'Souza, major of age, sister of late Smt. Tessie Josephine Correia, resident of Flat No.106, 1st floor, Thakkar Palace Janakalyan Nagar, Malwani, Malad West, Mumbai 400 064. 3 1(g) Mrs. Edith A. D'Mello, major of age, sister of late Smt. Tessie Josephine Correia, and her husband; 1(g)(g) Mr. Allwyn O.D'Mello, major of age, both residents of “Seadoll” Co-op. Housing Society Ltd., Chimbai Road, Near St. Andrew's Church, Bandra West, Mumbai 400 050. ... Respondents Shri J. E. Coelho Pereira, Senior Advocate with Shri A. Phadte, Advocate for the Petitioner. Shri S. S. Kantak with Shri A. Kamat, Advocates for the Respondents. CORAM : N. A. BRITTO, J. DATE : 1ST JULY, 2010. ORAL JUDGMENT Rule. By consent, heard forthwith. 2. This is Defendant's Writ Petition and is directed against Order dated 10-11-2008 of the learned Civil Judge, Senior Division, Mapusa by which Defendant's application dated 4-6-2008 has been rejected. 3. The Defendant had filed an appeal against the said Order before the District Court but the said appeal came to be dismissed as not maintainable 4 and with an observation that the Defendant's application dated 4-6-2008 ought to have been filed under Order 9, Rule 7, C.P.C. as the suit was not decreed and was still pending. 4. The Defendant was served with summons for the settlement of issue in the said suit through his uncle who was residing with him, and, the Defendant appeared before the learned trial Court. The relevant roznama dated 20-10-2004 reads as follows:- “20-10-2004 – Taken up today. Plaintiff represented by Adv. Rosario. Pursuant to the service of notice the Deft. present in person and orally prays for time to file W.S. Matter is fixed for W.S. on 8-11-2004 at 2.30” 5. The entire case of the Defendant is that he could not remain present before the learned trial Court on 20-10-2004 as the Defendant was in Delhi attending a Seminar between 12-10-2004 to 18-10-2004. As rightly pointed out, on behalf of the plaintiff, the correctness of the roznama entry was not challenged by the Defendant in his said application dated 4-6-2008 or at any time inspite of the fact that the Defendant had obtained copies of the roznama before filing the same. The learned Senior Counsel has tried to contend that the Defendant was not served with summons as required under C.P.C. Since the Defendant was present before the Court 5 on 20-10-2004 and sought adjournment to file written statement, whether the Defendant was rightly served or not with summons as required under the Code of Civil Procedure pales into insignificance. 6. The learned Civil Judge, Senior Division, has considered the said roznama dated 20-10-2004 and has observed that the Defendant had remained present and prayed for time to file written statement. Learned Civil Judge has also observed that the certificate produced does not show that the Defendant was undergoing training on 20-10-2004 at 2.30 p.m. That finding cannot be faulted. 7. Considering the facts of the case, no fault can be found with the impugned Order more so in extraordinary jurisdiction. Writ Petition is therefore hereby dismissed. N. A. BRITTO, J. RD