-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 674 OF 2011 1. Smt. Shakuntala Raghuvir Paigankar, (expired) Wife of Late Raghuvir R. Paigankar, House No.442, Aquem Alto – Margao, Goa. 2. Smt. Savita Bhisam Gianani, 38 years of age, married, Daugher of Late Raghuvir R. Paingankar, Residing at Flat No.A-2, Damodar Housing Society Margao Goa. 3. M/s. Raghuvri Paigankar & Co. A registered Partnership firm with its head office at Margao, Goa, through its partner, Smt. Savita Bhisam Gianani, 38 years of age, married, Daugher of Late Raghuvir and Shakuntala Paingankar, Residing at Flat No.A-2, Damodar Housing Society Margao Goa. …... Petitioners V e r s u s 1. Shri Rohit Raghuvir Paiginkar, Aged about 35 years, married, resident of House No.442, Aquem Alto – Margao, Goa. 2. Shri Rajendra alias Rajesh Raghuvir Paigankar, Aged 33 years, married, Residing at Flat No.A-2, Damodar Housing Society Margao Goa. 3. Shri Chandrahas Atmaram Zambaulikar, 56 years of age, Businessman, Residing at Zambaulim, Goa. 4. The Manager, United Bank of India, Margao Branch, Cine Vishant Road, Aquem Alto, Margao, Goa. …... Respondents Above are registered addresses of parties. WP-674-11 -2- Heard Shri J. J. Mulgaonkar, Advocate for the Petitioner. Shri Valmiki Menezes, Advocate for the Respondent nos. 1 and 2 Coram :- F. M. REIS, J Date : 1 st December, 2011. ORAL JUDGMENT Heard Shri J. J. Mulgaonkar, learned Counsel appearing for the Petitioner and Shri Valmiki Menezes, learned Counsel appearing for the Respondent nos. 1 and 2. The remaining Respondents though served absent. 2. Shri Mulgaonkar, the learned Counsel appearing for the Petitioner, upon instructions of the Petitioner, pointed out that all the Respondents have been duly served. 3. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel Shri Menezes waives service on behalf of Respondent nos.1 and 2. 4. The above Petition challenges the Order passed on 29.09.2011, by the learned Civil Judge Senior Division at Margao in Regular Civil Suit No.414/2010/II(Old No. Special Civil Suit No.121/2003/\A) whereby an application for adjournment filed by the Petitioners came to be rejected and the cross of Pw.1 was closed. WP-674-11 -3- 5. Shri Mulgaonkar, learned Counsel appearing for the Petitioner, pointed out that prior to the impugned Order, the Petitioners had availed of two adjournments and, as such, there was no reason for the learned Judge to pass such a harsh Order which would cause great prejudice to the case of the Petitioners by closing the cross of the Respondents. Learned Counsel further pointed out that on the relevant date, the adjournment was sought essentially on the ground that the Advocate appearing for the Petitioner was unable to attend the Court on account of some personal difficulty. The learned Counsel further pointed out that considering that the Petitioners had not availed of three adjournments, the learned Judge could have exercised discretion in favour of the Petitioner and granted a further adjournment to enable the Petitioners to cross examine the Respondent no.1. Learned Counsel further submits that the learned Judge has exceeded its jurisdiction in passing the impugned Order and, as such submits that the impugned Order be quashed and set aside. 6. On the other hand, Shri V. Menezes, learned Counsel appearing for the Respondents, who are the Plaintiffs in the suit, has disputed the contention of the learned Counsel appearing for the Petitioner. The learned Counsel fairly points out that prior to the relevant date, the Petitioners had only availed of two adjournments. The learned Counsel further pointed out that the Petitioners are unnecessarily dragging the matter and, as such, in case this Court is inclined to grant any adjournment, the Petitioners should be put to terms that no adjournments would be sought by the Petitioners in disposing the suit on merits. WP-674-11 -4- 7. Having heard the learned Counsel and on perusal of the record and taking note of the fact that it is not disputed that the Petitioners had availed of only two adjournments prior to the relevant date and the fact that the Counsel of the Petitioners was unable to remain present on the relevant date, I find that the learned Judge could have exercised discretion by granting another opportunity to the Petitioners to cross examine Pw.1 in peculiar facts of the case. Though the reasons given by the Petitioners may not be very adequate, but, nevertheless, considering that the parties should not be penalised on account of default on the part of their Counsel, I find that, in the interest of justice, the impugned Order deserves to be quashed and set aside and the Petitioners be permitted to cross examine Respondent no.1 subject to paying costs of Rs.5,000/- to Respondent nos. 1 and 2. The Order has been passed in the peculiar facts and circumstances of the case and taking note of the nature of the dispute between the parties herein. 8. In view of the above, I pass the following : ORDER (i) The impugned Order dated 29.09.2011 is quashed and set aside. (ii) The Petitioners are permitted to continue with the cross examination of Pw.1 subject to the Petitioners paying the Respondent nos. 1 and 2 costs of Rs.5,000/- as condition precedent. (iii) The Petitioners shall not seek any adjournment to WP-674-11 -5- proceed with the cross examination on the date fixed by the learned Judge. (iv) Rule is disposed of in above terms. (v) Petition is accordingly disposed of wit no Orders as to costs. 9. At the request of the learned Counsel Shri Menezes, the Respondent nos. 1 and 2 are permitted to withdraw the costs of Rs.5,000/- deposited by the Petitioners. F .M. REIS, J. arp/* WP-674-11