1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.699 of 2009 1. Shri Jose Inacio de Cunha (since deceased) through his legal heirs :- 1(a) Smt. Linda de cunha, wife of late Jose Inacio de Cunha 1(b) Shri William de Cunha son of late Jose Inacio de Cunha, 1(c) Smt. Evelyn de cunha, daughter-in-law of late Jose Inacio de Cunha, (wife of William de Cunha) 1(d) Shri Edwin de Cunha, son of late Jose Inacio de Cunha, 1(e) Smt. Marina de Cunha, Daughter-in-law of late Jose Inacio de Cunha, (wife of Edwin de Cunha), 1(f) Shri Mathew Dennis, Son-in-law of late Jose Inacio de Cunha, all major of age, All residents of Eugeno wado, Caranzalem, Taleigao, Ilhas, Goa. But presently residing at 26/Ahmed Building, Opposite Central Bank, Dr. Ambedkar Road, Byculla, Mumbai 400 027. (Tel. No.23501471) The petitioners no.1(b) to 1(f) being represented by their duly constituted attorney the petitioner no.1(a) .. Petitioners 2 v e r s u s 1. Smt. Umeliana Martins (since deceased) through her legal heirs :- 1(a) Shri Fernando Martins, major, 1(b) Smt. Savia Godinho, major 1(c) Shri Antonio Martins, major, 1(d) Shri Francisco Xavier Martins major, (since deceased) All residents of Martisalem Morod, Caranzalem, Goa. 2. Shri Querobino Martins, 3. Smt. Lavin Martins, 4. Shri Minguel Joao Martis alias Babush Martins, 5. Smt. Goretti Martins, All major, All residents of Taleigao, Ilhas – Goa. 6. Smt. Anunciacao Fernandes alias Gina Fernandes, Major, 7. Miss Guilherme Fernandes, Major, 8. Miss Irene Ferandes, Major 9. Kum. Jessy Fernandes, Minor, represented by her natural Guardian, Smt. Anunciacao 3 Fernandes alias Gina Fernandes the respondent no.6 herein. All residents of Eugeno Waddo, Caranzalem, Taleigao, Goa. Respondent nos. 10 to 29 are deleted as per order dated 21/07/2010. .. Respondents Mr. S. D. Lotlikar, Senior Advocate with Ms. Sudha Pai Kir, Advocate for the petitioners. Mr. V. A. Lawande, Advocate for respondent nos.2 and 3. None for the other respondents, though served. CORAM : A. P. LAVANDE, J. DATE : 17 th March, 2011. ORAL JUDGMENT : Heard Mr. Lotlikar, learned Senior Counsel for the petitioners and Mr. Lawande, learned Counsel for respondent nos.2 and 3. 2. Rule. By consent heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioners, who are the original plaintiffs in Regular Civil Suit No.237/2000/C pending before the Civil Judge, Junior Division, Panaji challenge the orders 4 dated 17th July, 2009 and 3rd September, 2009 passed in the said suit. 4. In the above suit filed by the petitioners, the petitioners filed an application dated 28th April, 2009 for recording cross-examination of plaintiff no.2 at her residence at Mumbai. The said application is dismissed by order dated 17th July, 2009 on the ground that the commissioner cannot be appointed to travel all the way to Mumbai and also it would be hazardous to take the Court file to Mumbai. Thereafter, since the plaintiffs did not lead any evidence, the trial Court closed the case of the plaintiffs by order dated 3rd September, 2009. Both these orders are under challenge in this petition. 5. Having heard Mr. Lotlikar, the learned Senior Counsel for the petitioners and Mr. Lawande, learned Counsel for respondent nos.2 and 3, in my opinion, interest of justice would be served by permitting plaintiff no.2 to be examined on commission within the jurisdiction of the Civil Court. In my considered opinion, the reasons given by the trial Court for refusing to permit examination of plaintiff no.2 on commission at Mumbai, cannot be said to be unsustainable in law. It would be also appropriate to set 5 aside the order dated 3rd September, 2009 by which the evidence of the plaintiffs has been closed. 6. In view of the above, I pass the following order : (i) The impugned orders dated 17th July, 2009 and 3rd September, 2009 are quashed and set aside. (ii) Plaintiff no.2 is permitted to file her evidence by way of affidavit within a period of four weeks. (iii) Plaintiff no.2 shall be permitted to be examined before the Commissioner, to be appointed by the trial Court, within the territorial jurisdiction of the trial Court on such terms and conditions which the Court deems fit and proper. (iv) The plaintiffs are at liberty to examine other witnesses, if they so desire. (v) The defendants shall be also at liberty to examine witnesses in support of their case. (vi) Since the suit is of the year 1989, the trial Court shall dispose of the suit expeditiously. The parties are directed to co-operate with the trial Court in early disposal of the suit. 6 (vii) The petitioners/ plaintiffs shall pay costs of Rs.1,500/- to respondent nos.2 and 3. 7. Rule is made absolute in aforesaid terms. A. P. LAVANDE, J. SMA