1 IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 90 of 2011 1. Shri Shyam M. Naik, resident of Anandi Niwas, Kurti, Ponda, Goa. 2. Shri Vinayak S. Naik, son of Shivram Naik, aged 66 years, resident of Mardol, Ponda-Goa. 3. Shri Rama C. Naik, aged 62 years, son of Chandru Naik, resident of Veling, Mardol-Goa. 4. Shri Rayu D. Naik, son of Dhaktu Naik, aged 67 years, resident of House No.210, Corlim, Tiswadi-Goa. 5. Shri Deepak R. Naik, son of Rayu Naik, aged 39 years, resident of House No.210, Corlim, Tiswadi-Goa. .. Petitioners. Versus 1. Shri Krishna K. Khedekar, son of late Kashinath Khedekar, 2 aged 64 years resident of Khedem, Priol, Mardol-Goa. 3. Smt. Shevanti A. Bhomkar, major, resident of Varcha Wada, Bhoma, Marcel-Goa. 4. Shri Shyamsundar S. Bhomkar, major, resident of Varchawada, Bhoma-Goa. 5. Shri Popat R. Bhomkar, aged 49 years, son of late Ramchandra Bhomkar, resident of House No.260, Gauthanwada, Bhoma, Marcel-Goa. 6. Shri Ramesh V. Kundaikar, major, resident of Gauthanwada, Bhoma-Goa. 7. Shri Purshottam B. Phadte, major, resident of Banastarim, Goa. 8. Shri Damodar G. Phadte, son of late Guna P. Phadte, resident of House No.491, Mangurar, Carambolim, Tiswadi-Goa. 9. Shri Keshav G. Phadte, son of late Guna P.Phadte, resident of House No.491, 3 Mangurar, Carambolim, Tiswadi-Goa. 10. Shri Mahabaleshwar R. Phadte Gaonkar, aged 41 years, resident of Adcona, Banastari-Goa. .. Respondents Mr. D. J. Pangam, Advocate for the Petitioners. Mr. P. Lotlikar, Advocate for the respondents 1 to 8. Coram:- A. P. LAVANDE, J. Date:- 22nd March, 2011. ORAL JUDGMENT Heard Mr. Pangam, learned counsel appearing for the petitioners and Mr. P. Lotlikar, learned counsel appearing for respondents 1 to 8. 2. Rule. By consent heard forthwith. 4 3. By this petition under Article 227 of the Constitution of India, the petitioners who are defendants 1 and 3 to 6 in Regular Civil Suit No.75/2007 filed by the respondents 1 to 8 before the Civil Judge, Junior Division, Ponda by respondents 1 to 8 challenge the order dated 10.11.2010 by which the application filed by the petitioners for adjournment has been refused. 4. A perusal of the records discloses that the plaintiffs sought four adjournments for filing affidavit of plaintiff no.1 and the said affidavit was filed on 11.1.2010. Thereafter the matter was adjourned for exhibiting the documents and cross examination on behalf of the defendants to 11.2.2010 on which date the advocate for the plaintiff asked for time. Thereafter, the matter was adjourned on several dates and on 25.6.2010 deposition of plaintiff/Pw1 was partly recorded. On 16.7.2010 plaintiff sought adjournment which was granted by way of last opportunity and the matter was adjourned to 11.8.2010 on which date an application for adjournment was sought on behalf of the 5 petitioners herein which was granted. Again on 6.9.2010 an application for adjournment was filed on behalf of the petitioners which was granted. 5. On 11.10.2010 the petitioners herein filed an application for adjournment on the ground that advocate Sawaikar who was representing them was ill. The same was objected to on behalf of the plaintiffs. 6. By the impugned order the trial Court has dismissed the application on two grounds namely that no medical certificate was produced in support of the same and the second on the ground that the defendants were represented by Advocate Vivek Naik. 7. Shri Pangam, learned counsel for the petitioners submitted that serious prejudice will be caused to the petitioners herein if the impugned order is not set aside in as much as the petitioners would be deprived of their valuable right to cross examine the plaintiff no.1. He further 6 submitted that the trial Court could not have dismissed the application for adjournment on the ground that no medical certificate was produced by the petitioners. He, therefore, submitted that the impugned order is liable to be set aside. 8. Mr. Lotlikar, learned counsel, appearing for respondents 1 to 8 submits that the petitioners are guilty of gross latches in as much as the petition has been filed after about a month of passing of the impugned order and the plaintiffs have closed their evidence in view of the impugned order. Shri Lotlikar further submitted that the petitioners have participated in further proceedings before the trial Court without any protest and the defendants have also led evidence in the said suit. Shri Lotlikar further submitted that in the event the impugned order is set aside, the plaintiff be also given an opportunity to lead further evidence. 9. Having heard the learned counsels for the parties and having perused the records, I am of the considered opinion that the impugned order deserves to be quashed and set aside. The fact remains that on 7 10.11.2010 Shri Sawaikar, learned Advocate, who was to cross examine Pw1 on behalf of the defendants 1 and 3 to 6 was ill and as such, the plaintiff/Pw1 could not be cross examined. The learned trial Judge ought to have given an opportunity to produce medical certificate and could not have dismissed the application for adjournment forthwith on the said ground. No doubt, Advocate Vivek Naik was present on behalf of the defendants but it appears that he was not in a position to cross examine the plaintiff/Pw1 being unaware of the facts. In my considered opinion, serious prejudice will be caused to the petitioners if they are not allowed to cross examine the plaintiff/Pw1. Therefore, the impugned order closing the cross examination of Pw1 deserves to be quashed and set aside. I also find merit in the submission of Shri Lotlikar that on account of the impugned order, the plaintiffs closed their case and did not lead further evidence. Mr. Lotlikar is justified in contending that because of the impugned order, the plaintiffs did not challenge the order closing the evidence of the plaintiffs. In the peculiar circumstances of the case, interest of justice would be served by setting aside the 8 impugned order dated 10.11.2010 and further permitting the plaintiffs to examine the witnesses, if any, subject to making them available on the dates fixed by the Court. It is made clear that in the event the witnesses for the plaintiffs or defendants do not remain present on the dates fixed, the trial Court shall be at liberty to pass appropriate orders in accordance with law. 10. For the reasons aforesaid impugned order dated 10.11.2010 is quashed and set aside and the defendants 1 and 3 to 6 are permitted to cross examine the plaintiff no.1 subject to said defendants paying costs of Rs.1,500/- to the plaintiffs. The plaintiffs are also permitted to lead further evidence if they so desire subject to the observations made above. Both the parties are directed to co-operate with the trial Court in early disposal of the suit. 11. The costs shall be deposited by the petitioners in the trial Court within a period of four weeks, with liberty to the plaintiffs to withdraw 9 the same. 12. Rule is made absolute in aforesaid terms. A. P. LAVANDE, J. oc.