1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 591/2009 Communidade of Bastora, Batora, Bardez, Goa Represented herein by its Attorney Mr. Darryl Menezes, Major of age, resident of Xell Bastora, Bardez-Goa. ... Petitioner. Versus 1. Mr. Vithal Babuso Tamonkar, Major of age 2. Mr. Namdev Babuso Tamonkar Major of age (a) Smt. Sugandha Gurudas Harmalkar (daughter) who was married to Gurudas Harmalkar, Gurudas expired leaving behind the following heirs (b) Shri Sidharth Gurudas Harmalkar, (son) major, businessman, married to (c) Smt. Resha Sidharth Harmalkar (daughter in law) major, housewife (d) Shri Sameer G. Harmalkar (son) Major, in service, unmarried (e) Kum. Shradha G. Harmalkar (daughter) Major, unemployed, unmarried All r/o Karashwaddo, Mapusa, Bardez Goa. 2 (f) Smt. Shoba Digambar Harmalkar, Major, married to (g) Shri Digambar Harmalkar Major Both r/o Dhargal, Pernem Goa. (h) Smt. Ganga Santosh Vengurlekar, (daughter) major, married to (i) Shri Santosh Saulo Vengurlekar, (son-in-law), major Both r/o H. No. 1/243/Porbavaddo, Calangute Bardez Goa (j) Shri Jaganath N. Tamonkar (son) Major, in service, married to (k) Smt. Vidhya Jaganath Tamonkar (daughter in law) married (l) Shri Sandeep M. Tamonkar (son) Major, in service, married to (m)Smt. Vanda S. Tamonkar (daughter in law) major (n) Shri Deepak N. Tamonkar (son) Major, in business, married to (o) Smt. Chandra D. Tamonkar (daughter in law), major, in business All r/o H. No. 98, Karraswaddo, Mapusa, Bardez, Goa 3. Mr. Shantaram Babuso Tamonkar Major of age 3 4. Mr. Sudan Babuso Tamonkar Major of age 5. Mr. Mahanand Babuso Tamonkar Major of age 6. Mr. Pundalik Babuso Tamonkar Major of age All residing at Carras vaddo, Mapusa, (house no. not known) Bardez, Goa ... Defendants. Mr. J. P. Mulgaonkar, Advocate for the Petitioner. Mr. Nitin N. Sardessai, Advocate for Respondent No. 1. CORAM:- R.M. SAVANT, J. DATE:- 6TH NOVEMBER, 2009. ORAL JUDGMENT: Rule, with the consent of the parties made returnable forthwith and heard. Facts necessary to be cited are stated thus. 2. This petition takes exception to the Order passed by the learned Civil Judge, Senior Division, Mapusa in the application for setting aside the Orders dated 12/01/2009 and 06/02/2009 in Regular Civil 4 Suit No: 538/2000/C by which the plaintiff's evidence was closed and the application for re-opening, the evidence filed by the plaintiff, came to be rejected. The petitioner is the original plaintiff who has filed the said suit for declaration, permanent and mandatory injunction. 3. After the completion of pre-trial formalities, the suit had appeared before the learned Judge on 05/12/2008 and was adjourned to 12/01/2009 at 10.00 a.m. It appears that the colleague of the Advocate for the plaintiff wrongly recorded in the diary that the suit was kept on 12/01/2009 at 2.30 p.m., when the suit was kept for evidence on 12/01/2009 at 10.00 a.m. When the Advocate for the plaintiff went to the Trial Court on 12/01/2009 at 2.30 p.m., it was noticed by him that the suit was already called out in the morning session and Order was passed in view of the plaintiff's absence, closing the plaintiff's evidence. 4. The Advocate for the plaintiff, thereafter, immediately on the next day i.e. on 13/01/2009 filed an application for setting aside/ recalling the order dated 12/01/2009 for allowing the plaintiff to lead 5 evidence. In the said application, it was mentioned that the date was inadvertently recorded as 12/01/2009 at 2.30 p.m. and accordingly the Advocate attended the Court on 12/01/2009 at 2.30 p.m., and also an application of PW-1 to be examined on commission as he was unable to attend the Court as both his legs were amputated was made. It was further mentioned in the application that on account of genuine reasons the Advocate of the plaintiff, could not remain present before the Court at 10.00 a.m. on 12/01/2009. It was further avered that PW- 1 was Attorney of the plaintiff and whose evidence was material to substantiate the plaintiff's case. 5. The said application dated 13/01/2009 was considered by the Trial Court and the same was rejected on the ground that plaintiff should have shown greater care in conducting the matter and also that no medical certificate in respect of PW-1 was annexed for recording of evidence on commission as well as for adjournment. The Trial Court was of the view that the application of the plaintiff was lacking in bonafides. 6 6. I have heard the learned Counsel for both the parties. It would be pertinent to note that the reason cited by the petitioner in its application dated 13/01/2009 has not been adverted to or considered by the Trial Court while deciding the application dated 13/01/2009. The Trial Court merely rejected the application on the ground that, no medical certificate was produced and that greater care should have been shown in conducting the matter. 7. No doubt there has been some callousness on the part of the petitioner in prosecuting the said suit, however considering the reason given by the petitioner, in the said application dated 13/01/2009, the same can be a plausible reason for the Advocate for the petitioner not to attend the Court in the morning session on 12/01/2009 as otherwise there was no reason for him to appear in the afternoon session on 12/01/2009. The appearance in the afternoon session can be attributed to the fact that the time was wrongly mentioned in the diary. 8. In so far as the case of the petitioner that PW-1 is to be examined on commission, it is stated that both his legs are amputated. Merely by stating that medical certificate is not produced, the reason 7 given by the petitioner cannot be disbelieved and rejected outright. 9. In my view the Trial Court has taken a highly technical view in rejecting the said application. It is well settled that a party is to be given an opportunity to prosecute its remedy on merits, rather than being thrown out on technical grounds. For the prejudice that is caused to the respondents, the same can be compensated by imposing appropriate costs on the petitioner. 10. For the aforesaid reasons, the impugned Order dated 12/01/2009 and the Order dated 06/02/2009 which is the consequential Order to the first Order is required to be set aside. The petitioner would be entitled to lead its evidence. Both the parties to appear before the Trial Court on 23/11/2009 at 10.00 a.m. and thereafter, the Trial Court to fix the schedule for recording of the evidence of the parties. 11. The petitioner to pay costs of Rs. 2,000/- to the respondent which is a condition precedent. The petitioner would be allowed to lead evidence after it produces evidence that it has paid the said costs 8 of Rs. 2,000/- to the respondent. In case costs are not paid, this order would not ennure to the benefit of the petitioner and the application would resultantly stand dismissed. 12. Rule is accordingly made absolute in the aforesaid terms. Parties to bear their respective costs. R. M. SAVANT, J. EV