1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.414 OF 2004 Mr. Edmund Godwin Lino Romeo Antao, son of late Longuinho Innocencio Remington Romeo Antao, major, Indian National, residing at Vasco da Gama, Goa. …. Petitioner V/s Mr. Daniel Vincent Philips, son of Vincent Philips, major, married, retd. Navy Officer, residing at Cruz Mansion, Margao, Goa. …. Respondent Shri C.A. Coutinho, Advocate for the Petitioner. CORAM : F.M. REIS, J. DATE : 18th OCTOBER, 2011 JUDGMENT : Heard Shri C.A. Coutinho, learned Counsel appearing for the petitioner. None for the respondent though served. 2. The above petition challenges the order passed by the learned Civil Judge Senior Division at Vasco whereby an application for condonation of delay as well as restoration of the suit bearing Special Civil Suit No.113/91/A came to be allowed by 2 order dated 7/04/2003. Thereafter, the petitioner filed an application for review of the said order being Civil Miscellaneous Application No.3/2003/A in the said suit on the ground that the reply of the petitioner was not considered by the learned Judge while passing the said order restoring the suit. The said application came to be rejected by the impugned order dated 13/08/2004. 3. Shri C.A. Coutinho, learned Counsel appearing for the petitioner has assailed the impugned order and pointed out that the learned Judge while passing the order restoring the said suit has not considered the reply filed by the petitioner opposing the application for condonation of delay. Learned Counsel further submitted that the learned Judge failed to review the order though it was borne out from the records that the reply of the petitioner was not even considered by the learned Judge while passing the impugned order. Learned Counsel further submitted that the grounds on which restoration was sought by the respondent were not bona fide and, as such, the question of restoring the suit does not arise at all. Learned Counsel has taken me through the impugned order and pointed out that the learned Judge has acted with material irregularity while passing the impugned order which is to be 3 quashed and set aside. 4. Having heard the learned Counsel and on perusal of the record, I find that though the learned Judge appears to have not considered the reply filed by the petitioner, I find that this by itself may not be a ground for interference by this Court under Article 227 of the Constitution of India. The learned Judge while passing the impugned order found that the petitioner has failed to remain present when the matter was fixed for arguments in respect of application for condonation of delay as well as for restoration of the suit. The learned Judge further found that there was no explanation of the petitioner as to why he failed to remain present on the said date. As such, the learned judge came to the conclusion that there is no error apparent on record which requires any review of the order restoring the suit. 5. Considering the facts and circumstances of the case and in view of the fact that the suit is ordered to be restored, I find that taking note of the conduct of the petitioner no relief can be granted to the petitioner when he has failed to show any justification as to why he failed to remain present on the date the matter was fixed 4 for considering the application for condonation of delay. The main contention of the learned Counsel appearing for the petitioner is that the petitioner has pointed out in the reply that an application for restoration was earlier dismissed in default. On perusal of the impugned order, I find that the learned Judge has considered the said aspect as well as the reply filed by the petitioner while passing the impugned order. Considering the absence of the petitioner on the relevant date to contest the application for restoration and in the facts and circumstances of the case as the petitioner opposed application for condonation of delay, learned Judge ought to have awarded costs while restoring the suit. To that extent, the impugned order deserves to be modified. The costs are quantified at Rs.1,500/-. 6. The impugned order passed by the learned Judge allowing the application for condonation of delay and restoration of the suit shall be subject to payment of costs of Rs.1,500/- by the respondent no.1 to the petitioner as condition precedent. In view of the above, I pass the following order, O R D E R (i) The impugned orders passed by the learned 5 Civil Judge Senior Division, Vasco dated 07/04/2003 and 13/08/2004, are modified and the application made by respondent for condonation and restoration of the suit is allowed subject to the respondent paying costs of Rs.1,500/- as condition precedent. (ii) Rule is made absolute in the above terms. (iii) Petition stands disposed of accordingly with no order as to costs. (iv) Considering the suit is of the year 1991, the learned Judge is directed to decide the suit on merits as expeditiously as possible. F.M. REIS, J. NH/-