1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.856 OF 2010 1. Mrs. Maria Filomena de Silva, 60 years of age, married wife of Joao Minguel Cardoso, Housewife, r/o. House no.66, 1st ward, Colva, Salcete, Goa. Through her power of attorney, Sharen K. Dias, r/o Margao, Goa, major in age, service. 2. Mr. Joao Minguel Cardoso, Son of Sebastiao Cardoso, married, 63 years of age, retired, resident of H.No.66, 1st ward, Colva, Salcete, Goa Now deceased through legal heir 3. Mr. Cruz Sebastiao Cardozo, son of late Minguel Cardozo, 32 years, married,service, resident of Bungalow A/3, S.K. Residency, Grande Vanelim, Colva, Salcete, Goa …. Petitioners v e r s u s 1. Mrs Julieta Imelda Siva Fernandes, widow, housewife, resident of House no.58, Perde de Igreja, Cuncolim, Salcete, Goa. 2. Mrs. Maria Clara Silva Gomes, wife of Anton Jose Gomes, Housewife, resident of H.No.328, Volly-11, Cavorim, Chandor, Salcete, Goa, expired through legal heirs. 2a. Mr. Remedios Fernandes, Major in age, married,service, Resident of 1st ward, Colva, Salcete, Goa. 2b. Mrs. Flora Francisca J. Gomes, 2 Daughter of Antonio Jose Gomes, major in age, married,services, resident of 1st ward, Colva, Salcete, Goa. 2c. Mr. Jose Nelson P. dos M. Gomes, son of Antonio Jose Gomes, major in age, married,service, resident of Cavorim, Chandor, Salcete, Goa. 2d. Mr. Jesus Edwin Rex Gomes, Major in age, married,service, Resident of 9-3-1, Chapel road, Borda, Margao, Salcete, Goa. 2e. Mrs. Livia Gomes, Daughter of Antonio Jose Gomes, Major in age, married, housewife, and her husband 2f. Mr. Milton D'Cruz, Major in age, married, service, Both residents of Baga, Velim, Salcete, Goa. 2g. Fr. Eucharisto Gomes, s/o Shri Antonio Jose Gomes, Major in age, unmarried, priest, resident of Navelim, Salcete, Goa. 3. Mr. Anton Jose Gomes, Service, resident of house no.328, Volly 11, Cavorim, Chandor, Salcete, Goa. 4. Mrs. Maria Natalina Silva Barreto, d/o Joao Baptista da Silva, Majo in age, married, housewife, resident of house no.113/A, Nagvado, Betalbatim, Salcete Goa. 5. Mr. Joao Baptista Barreto, Major in age, retired, resident of H.No.113/A, Nagvado, Betalbatim, Salcete Goa. Expired through legal heirs. 3 5a. Mrs. Ruth Aduzinha Barreto e Pereira, Daughter of late Joao Baptista Barreto, Major in age, married, service, resident of house no.113/A, Nagvado, Betalbatim, Salcete Goa. 5b. Mr. Antonio Lucas Justinho Pereira, Son of Jose Casmiro Pereira, Major in age, married, service, Resident of house no.113/A, Nagvado, Betlbatim, Salcete Goa. 5c. Rochelle Pereira, Daughter of Antonio Lucas Justinho Pereira, minor, through her mother respondent no.5a, who is the mother of respondents nos.5c & 5d. 5d. Josua Pereira, Son of Antonio Lucas Justinho Pereira, minor, Both residents of house no.113/A, Nagvado, Betalbatim, Salcete Goa. Through her mother respondent no.5a, who is the mother of respondents nos.5d and 5c. 6. Mr. Jacinto Dias alias Jacinto da Silva, Son of Cato Dias, 59 years of age, married, resident of house no.304, 4th ward, Colva Salcete Goa, and his wife; 7. Mrs. Joaosinha Filomena Fernandes e da Silva, Major in age, married, wife of Mr. Jacinto Dias alias Jacinto da Silva, resident of house no.304, 4th ward, Colva Salcete Goa. Mrs. Asha Dessai, Advocate for the petitioners. Mr. V. Rodrigues, Advocate for respondent nos.6 and 7. None for the other respondents, though served. 4 CORAM : A. P. LAVANDE, J. DATE : 9 th February, 2011. ORAL JUDGMENT : Heard Mrs. Dessai, learned Counsel for the petitioners and Mr. Rodrigues, learned Counsel for respondent nos.6 and 7. None for the other respondents. 2. Rule. By consent of the learned Counsel for the parties heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioners challenge the order dated 13th December, 2010 passed by the Civil Judge, Senior Division, Margao in Regular Civil Suit No.173/1997/A by which the evidence of the plaintiffs has been closed. 4. Perusal of the record discloses that the matter has been adjourned on several occasions at the instance of the plaintiffs and the evidence of the plaintiffs has been spread over for a quite long time. After granting several adjournments to the plaintiffs to examine witnesses, on 13th December, 2010 when Mr. Cruz Sebastiao Cardozo – plaintiff 5 no.2(a) who was to be examined on behalf of the plaintiffs, could not remain present since he has been serving at Dubai and could not get leave. Consequently, the trial Court dismissed the application for adjournment and closed the evidence of the plaintiffs. 5. Mrs. Dessai, learned Counsel for the petitioners submits that plaintiff nos.2(a)- Mr. Cruz Cardozo could not remain present to depose in the matter since he could not get leave to come down to Goa from Dubai. She further states that presently, plaintiff no.2(a)- Cruz Cardozo is in Goa and the impugned order would cause serious prejudice to the plaintiffs if it is not set aside in as much as the plaintiffs would be deprived of the important evidence which the plaintiffs want to tender through Cruz Cardozo. She, therefore, submitted that in the interest of justice the impugned order closing the evidence of the plaintiffs be set aside on such terms and conditions this Court deems fit. 6. On behalf of respondent nos.6 and 7 Mr. Rodrigues submitted that several opportunities have been given to the plaintiffs to lead evidence and, therefore, the trial Judge was perfectly justified in passing the impugned order since the suit filed by the plaintiffs was pretty old. He 6 further submitted that no case is made out for interference with the impugned order. 7. Having considered the rival submissions and having perused the record, I am of the considered opinion that interest of justice would be served by giving one more opportunity to the plaintiffs to examine Cruz Cardozo- plaintiff no.2(a) in support of the case of the plaintiffs. The record discloses that the plaintiffs have sought several adjournments in the matter. However, the fact remains that if the impugned order is not set aside the plaintiffs would be deprived of an opportunity of leading evidence of an important witness to prove the case of the plaintiffs. 8. In view of the above, the order dated 13th December, 2010 closing the case of the plaintiffs is quashed and set aside and the plaintiffs are permitted to examine only Mr. Cruz Sebastiao Cardozo subject to the condition that he shall appear on all the dates fixed by the trial Court and further subject to payment of costs of Rs.10,000/- in favour of defendants / respondent nos.6 and 7 herein, who have contested the petition. 9. The parties shall appear before the trial Court on 7 14th February, 2011 at 10.00 a.m. The petitioners shall deposit the costs in the trial Court by 14th February, 2011. Upon deposit, liberty to respondent nos.6 and 7 to withdraw the same. In case the costs are not deposited, this order shall stand vacated and the impugned order shall stand revived. It is made clear that in the event plaintiff no.2(a) fails to appear on the date fixed for evidence, the trial Court will be free to close evidence of the said witness. 10. Rule is made absolute in aforesaid terms. 11. Petitioners to act on the copy of this judgment duly authenticated to be supplied on payment of charges. A. P. LAVANDE, J. SMA