Shri Ramchandra or Raghunath Devasthan vs Shri Ramchandra Anant Garde and Others

A.P. Lavande, J.—Heard Mr. Lawande, learned Counsel for the Petitioner and Mr. Kansar, learned Counsel for Respondent Nos. 1 to 10. None appears on behalf of the other Respondents, though served.

Rule. By consent heard forthwith.

By this petition under Article 227 of the Constitution of India, the Petitioner challenges two orders dated 3rd September, 2007. By the first order the application filed in Regular Civil Suit No. 13/1994 by the Petitioner/Plaintiff for adjournment has been dismissed by Civil Judge, Senior Division, Bicholim and by the second order, the suit of the Plaintiff was dismissed on the ground that the Plaintiff had not led any evidence.

The Petitioner herein filed the above suit seeking reliefs of declaration and injunction against the Defendants. The suit was contested by the Defendants. It appears that when the suit was fixed for evidence of the Plaintiff several adjournments were sought by the Plaintiff for leading evidence. On 3rd September, 2007, when the matter was fixed for evidence of the Plaintiff, an application for adjournment was filed by the Plaintiff supported by medical certificate of Shri Suresh Chari, the attorney of the Plaintiff, who was to be examined on the said date. The trial Court dismissed the application on the ground that the Plaintiff had several opportunities to make alternate arrangement and that they have been constantly asking adjournments from 26th February, 2007 and consequently, dismissed the suit for not leading evidence by the Plaintiff.

Mr. Lawande, learned Counsel for the Petitioner/Plaintiff submitted that serious prejudice would be caused if the impugned orders are not set aside in as much as it is only Suresh Chari, the attorney of the Devasthan, who is conversant with the facts in the suit and if he is not allowed to examine in support of the Plaintiff''s case, serious prejudice would be caused to the Plaintiff. He further submitted that the trial Court ought to have granted the application for adjournment supported by the medical certificate by imposing costs and consequently, ought not to have dismissed the suit for want of evidence.

Mr. Kansar, learned Counsel for Respondent Nos. 1 to 10 has supported the impugned orders and submitted that no case is made out for interference with the impugned orders.

Having heard the learned Counsel for the Petitioner and Respondent Nos. 1 to 10, I am of the considered opinion that it would be appropriate in the interest of justice to set aside the impugned orders by imposing heavy costs on the Petitioner. No doubt, the Petitioner had sought several adjournments for leading evidence in the suit. However, the fact remains that on 3rd September, 2007 when the matter was fixed for evidence of the Plaintiff, Shri Suresh Chari, the attorney of the Plaintiff was ill and as such, could not attend the Court. This being the factual position, I am of the considered opinion that the Plaintiff deserves to be given an opportunity to lead evidence in the suit by restoring the suit subject to payment of costs.

In view of the above, both the impugned orders dated 3rd September, 2007 are quashed and set aside and consequently, the suit is restored subject to payment of costs of Rs. 10,000/- in favour of Respondent Nos. 1 to 10 herein since the other Respondents have chosen not to put in appearance in spite of service. The costs shall be deposited in the trial Court within six weeks. Liberty to Respondent Nos. 1 to 10 herein to withdraw the costs after they are deposited. The parties are expected to cooperate with the trial Court in early disposal of the suit, which is of the year 1994. The parties to appear before the trial Court on 14th June, 2011 at 10.00 a.m.

Rule is made absolute in aforesaid terms.