-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 493 OF 2003 1. Ajay Pal Son of Ratiram Pal Major of age through his Power of Attorney Ramlakhan Yadav Vide P/A dated 2/1/2001 …... Petitioner V e r s u s 1. Chitra Pednekar, Spinster, residing at MHNo.52, near MPT Chairman's Bungalow 2. Ramnath Kossambe, Major in age, H. No. 51, Near MPT Chairman's Bungalow, Headland Sada. 3. N. Shivaji, Major in age, H. No. 51, Near MPT Chairman's Bungalow, Headland Sada. 4. Ratiram Pal, S/o. Ram Pal, major in age, Retired employed at present Residing at Uttar Pradesh Through his Power of Attorney Holder Digambar Chandrakant Naik, M. H. no. 74, Moprmugao Jetty Vasco da Gama, Vide P/A dated 18.11.1997. 5. Sarju Pal, S/o. Sukhdev Pal, Service Residing at Head land Sada Vasco da Gama Major in age, through his Power of Attorney Holder Digambar Chandrakant Naik, M. H. No. 74, Mormugao Jetty Vasco da Gama, Vide P/A dated 18.11.1997. -2- 6. Parsuram Vamona Parab, a) Shamsundar Parsuram Parab major of age, son, married, Indian National r/o. C/o. Omkar Bungalow, Opp. M.P.T. Administrative Office, Headland Sada, Mormugao-Goa Pin Code 403 804 b) Shobha Shamsundar Parab, major, wife of Shri Shamsundar Parsuram Parab Indian National, r/o. Omkar Bungalow, M.P.T. Administrative Office, Headland Sada, Mormugao-Goa Pin Code 403 804 c) Premanand Parsuram Parab, major of age, son, married, Indian National Omkar Bungalow, H. No. 54 A, Opp. M.P.T. Administrative Office, Headland Sada, Mormugao-Goa Pin Code 403 804 d) Rohini Premanand Parab, major, wife of Shri Premanand Parsuram Parab, Indian National, Omkar Bungalow, H. No. 54A, Opp. M.P.T. Administrative Office, Headland Sada, Mormugao-Goa Pin Code 403 804 e) Ashwini Ramdas Gawas major, daughter of Parsuram V. Parab, married, Indian National, r/o. c/o w/o. R B Gawas SMQ 273/3 AF Station Ozar Nasik, Maharashtra Pin Code 422221. f) Ramdas Babaji Gawas, major, husband of Ashwini Ramdas Gawas Indian National SMQ 273/3 AF Station Ozar Nasik Maharashtra Pincode 422221. -3- g) Prashanti Prabhakar Shetye major, daughter of Parsuram V. Parab, married, Indian National, Omkar Bungalow Opp. M. P. T. Administrative Office Mormugao, Headland Sada, Goa, Pincode : 403 804. h) Prabhakar Ragoba Shetye Major, Husband of Smt. Prashant Prabhakar Shetye, Indian National, Omkar Bungalow, Opp. M.P.T. Administrative Office, Headland Sada, Mormugao-Goa Pin Code 403 804. I) Dipti Dilip Desai, Major, daughter of Parsuram V. Parab Indian National, r/oc/o J.W.O. Dilip Desai Cinher Section Air Force Station Amritsar Cantt, Amristsar Punjab Pin Code 143001 j) Dilip Amrut Dessai major, Husband of Dipti Desai Indian National, r/o. Ciher Cantt Amritsar Punjab Pin Code 143 001. Mr. A. Kamat, Advocate for the Petitioner. Mr. Thalman Pereira, Advocate for the Respondents. Coram :- F. M. REIS, J Date : 19 th September, 2011. ORAL JUDGMENT The above Petition challenges the Order passed by learned Civil -4- Judge, Junior Division at Vasco da Gama, in Civil Misc. Application no. 1/2001/D in Regular Civil Suit No. 5/1998/D, dated 02.06.2001, whereby the application dated 02.01.2001 filed by the Petitioner to set aside the exparte Order dated 02.12.2000 came to be rejected. 2. It is the case of the Petitioner that the Petitioner was served in a suit filed by Respondent nos. 4, 5 and 6 in Uttar Pradesh somewhere in November 2000 and immediately thereafter, he contacted a lawyer Shri Menino Pereira to file his written statement to the counter claim filed by the Respondent nos. 1, 2 and 3. It is further his case that the Petitioner is an illiterate person and he was relying upon the advise given by the said Counsel and, as such, there was a delay in filing such written statement. It is further his case that immediately after he learnt about the said exparte order, an application was filed on 02.01.2001 to the learned Judge to set aside the Order to proceed exparte against the said Petitioner and permit him to file his written statement. The Respondent nos. 1, 2 and 3 opposed the said application by filing a reply and claiming, inter alia, that the Petitioner has failed to make out any sufficient cause to set aside the exparte order. The said Respondents as such pray that the application deserves to be rejected. 3. After hearing the learned Counsel for the respective parties, the learned Judge by the impugned Order dated 02.06.2001, dismissed the application filed by the Petitioner. Being aggrieved by the said Order, the Petitioner has preferred the present Petition. 4. Shri A. Kamat, the learned Counsel appearing for the Petitioner, has -5- assailed the impugned Order and pointed out that the Petition is an illiterate person and was relying upon the advise of his Advocate to file the written statement. The learned Counsel further pointed out that there was no delay on the part of the Petitioner which would disentitle the Petitioner to file the written statement to the counter claim and, as such, the learned Judge was not justified to pass the impugned Order refusing to set aside the exparte Order. The learned Counsel has taken me through the said application filed by the Petitioner as well as the reply filed by the Respondents and pointed out that there is no substantial dispute raised by the Respondent nos. 1, 2 and 3 to the fact that the Petitioner is an illiterate person and he was relying on the advice of his Advocate. Learned Counsel further pointed out that the learned Judge has erroneously refused to exercise its discretion whilst passing the impugned Order which resulted in irreparable injustice to the Petitioner as the Petitioner will not be able to effectively defend the counter claim filed by the Respondent nos. 1 and 2. The learned Counsel as such submitted that the impugned Order deserves to be quashed and set aside. 5. Learned Counsel, Shri T. Pereira appearing for the Respondents has supported the impugned Order. The learned Counsel has submitted that the Petitioner has not shown any sufficient cause for the purpose of setting aside the exparte order against him and, as such, no interference is called for in the impugned Order. 6. Having heard the learned Counsel and on perusal of the record, I find that the learned Judge was not justified to discard the affidavit of Advocate Menino Pereira. The affidavit discloses that in fact the Petitioner approached him to file the -6- written statement and that the Petitioner was residing in Uttar Pradesh. Apart from that , there are no malafides attributed by the Respondent nos. 1, 2 and 3 to the Petitioner in deliberately delaying the filling of such written statement. Considering the overall facts and circumstances of the case, I find that the learned Judge was not justified to pass the impugned Order thereby refusing to allow the Petitioner to file the written statement to the counter claim filed by the Respondent nos. 1, 2 and 3. If the impugned Order is allowed to stand, irreparable injustice would occasion to the Petitioner inasmuch as he will not be able to effectively defend the contentions raised by the said Respondents in the counter claim. It is well settled that parties should not suffer on account of the lapse of the Advocate. The Petitioner is stated to be an illiterate person and as such considering the facts and circumstances of the case,, the exparte order deserves to be set aside. Considering the above, I find that the impugned Order cannot be sustained and deserves to be quashed and set aside. 7. In view of the above, I pass the following : ORDER 1. The impugned Order dated 02.06.2001 is quashed and set aside. 2. The application filed by the Petitioner to set aside the exparte order is allowed and the Petitioner is permitted to file the written statement to the counter claim filed by the Respondent no.1 on or before 06.12.2011. -7- 3. Rule is disposed of accordingly with no orders as to costs. 4. The parties are directed to appear before the Trial Court on 06.12.2011 at 10.00 a.m. F .M. REIS, J. arp/*