1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.490 of 2010 1. Smt. Tulshi Apa Sattarkar, (Since deceased) through her Legal Heirs :- a) Smt. Jayanti Sadanand Kerkar, Major, married, widow of Late Sadanand Kerkar and Daughter of late Smt Tulshi Apa Satarkar alias Gaunkar, b) Shri Gurudas Sadanand Kerkar Major, married, S/o. Sadanand Kerkar, c) Smt. Sulaksha Gurudas Kerkar, Major, married, w/o. Gurudas Kerkar, d) Shri Anand S. Kerkar, Major, S/o. Sadanand Kerkar, e) Rekha S. Kerkar, Major Bachelor, Daughter of Sadanand Kerkar, f) Smt. Kamal Kamlakant Sattarkar W/o. Kamlakant Sattarkar, All resident of Kasauli, Mollem, Sanguem- Goa .. Petitioners v e r s u s 1. Shri Vijaykumar Fakirappa Gaddi, Major, married businessman, R/o. House No.207, Ward No.1, Gadag, Karnataka, 2. Shri Kamlakant Apa Sattarkar, Alias Gaunkar, major, married, Resident of Kasauli, Mollem, Sanguem-Goa .. Respondents 2 Mr. S. D. Padiyar, Advocate for the petitioners. Mr. J. De Mello, Advocate for respondent no. 2. None for respondent no.1, though served. CORAM : A. P. LAVANDE, J. DATE : 23 rd February, 2011. ORAL JUDGMENT : Rule. By consent of the learned Counsel for the parties heard forthwith. 2. By this petition under Article 227 of the Constitution of India, the petitioners challenge the order dated 2nd January, 2008 passed by the Civil Judge, Junior Division, Sanguem in Regular Civil Suit no.4/2005 pending before the Civil Judge, Junior Division, Sanguem as well as judgment and order dated 2nd April, 2009 passed in Miscellaneous Civil Appeal No.77/2008 by the Ad hoc District Judge-II, South Goa, Margao dismissing the appeal preferred against the order dated 25th July, 2008 passed in Civil Miscellaneous Application No.2/2008 in Regular Civil Suit no.4/2005 by learned Civil Judge, Junior Division, Sanguem. 3 3. Perusal of the record discloses that the learned trial Judge by order dated 2nd January, 2008 dismissed the above suit for non-payment of costs and for non-prosecution. 4. The lower appellate Court has by the judgment and order dated 2nd April, 2009 dismissed the appeal preferred against the order passed by the trial Court refusing to set aside dismissal of the suit. 5. Having heard the learned Counsel for the parties and having perused the record, I am of the considered opinion that interest of justice would be served by setting aside the order dated 2nd January, 2008 passed by the trial Court and judgment and order passed by the lower appellate Court dated 2nd April, 2009 in as much as by both the orders the suit filed by the petitioners has been dismissed on the ground of non-payment of costs and for non-prosecution. No doubt, perusal of the record discloses that the petitioners have been negligent in pursuing the matter before the trial Court. The fact remains that by the impugned orders, the plaintiffs/ petitioners have been non-suited. Therefore, in my considered opinion, interest of justice would be served by setting aside both the orders and by compensating defendant no.2. 4 6. In view of the above, the order dated 2nd January, 2008 passed by the trial Court and the judgment and order dated 2nd April, 2009 passed by the lower appellate Court are quashed and set aside and Regular Civil Suit No.4/2005 pending before the Civil Judge, Junior Division, Sanguem is restored subject to the plaintiffs paying costs of Rs.10,000/- to respondent no.2. The costs shall be deposited before the trial Court within a period of four weeks from today. Upon deposit of the costs, liberty to respondent no.2 herein to withdraw the costs. 7. Rule is made absolute in aforesaid terms. A. P. LAVANDE, J. SMA