IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 585 OF 2009 MRS. MARIA DE CONCEICAO ANGELICA FERNANDES E GONSALVES & ANR. ... Petitioner Versus MRS. SANDRA FERNANDES & ANR. ... Respondent Mr. J.P. Mulgaonkar, Advocate for the petitioners. Mr. P. A. Kamat, Advocate for the respondents. Coram:- N. A. BRITTO, J. Date:- 24th June, 2010 P.C. Heard. 2. Petitioners herein are the plaintiffs in Regular Civil Suit no. 208/98/F whose evidence was closed by Order dated 18.6.2009 and application to set aside the same was dismissed by Order dated 11.8.2009. 3. There is no dispute that the plaintiffs had sought several adjournments as mentioned by learned Civil Judge, Junior Division, on 9.1.2009, 3.2.2009, 6.4.2009, 17.4.2009 and 2.6.2009. However, the controversy starts from 9.6.2009. On this day the plaintiffs (PW1) evidence was completed and case was posted to 15.6.2009 and 18.6.2009 for further evidence of the plaintiffs. On 15.6.2009 the defendants remained absent and plaintiffs sought adjournment to file affidavit in evidence of PW2 who is stated to be a photographer and who was required to be examine by the plaintiffs. As a result the suit was fixed on 17.6.2009 and the plaintiffs filed an application on that day i.e on 17.6.2009 with a prayer that timing may be changed from 4.00p.m to the morning session of 18.6.2009 and also filed affidavit in evidence of the photographer. The notice of that application appears to have been issued, which was served upon the Advocate of the defendants who objected and stated that it was not possible for him to appear in the morning session. On 18.6.2009 the plaintiffs filed an application which came to be dismissed by the impugned order. 4. Learned Civil Judge, Junior Division, has only referred to the past adjournments granted to the plaintiffs but has not at all referred to the controversy from 9.6.2009. No message was conveyed to the plaintiffs either on 2/06/2009 or 9/06/2009 that the next would be final opportunity, as wrongly recorded by the learned Civil Judge, Junior Division. The plaintiffs had shown their bonafides by filing affidavit of PW2 and keeping him present on 17.6.2009. That Advocate of the defendants could not attend on that day is another matter. 5. Considering the facts of the case, learned Civil Judge, Junior Division, ought to have granted a further opportunity to the plaintiffs to complete the evidence of PW2 whose affidavit was already filed on 17/06/2009 but who was unable to attend the Court in the morning session of 18.6.2009. The learned Civil Judge, Junior Division, on facts of the case, does not appear to have exercised the discretion correctly. 6. Consequently, impugned Orders are hereby set aside and learned Civil Judge, Junior Division, is hereby directed to give another opportunity to the plaintiffs to complete their evidence. Parties to appear before the learned Civil Judge, Junior Division. Counsel on behalf of the parties inform that the next date has already been given. 7. An objection has been taken by the defendants that the present petition has been filed by the plaintiffs through a power of attorney, whose power has been already been withdrawn by the plaintiffs. The defendants are at liberty to take this objection before the trial Court and in case it is taken the same shall be decided by the learned Civil Judge, Junior Division, in accordance with the law. 8. Writ Petition is disposed off in the light of what has been stated in para 6 hereinabove. N. A. BRITTO, J. vn