Shri Surinder Kumar Khosla vs Shri Suresh Atmaram Jaca, & Ors.

Rule made returnable forthwith. The learned counsel for the respondent nos.1 and 2 waives service. Heard finally by consent of parties.

The petitioner is challenging the order dated 10/4/2017 passed by the learned Adhoc Additional Senior Civil Judge, Mapusa, thereby dismissing application (Exhibit 96) filed by the petitioner (original defendant no.6 and 7) thus refusing to recall the order closing the cross examination of Pw2, Mr. Milind Kamat).

It is contended by the petitioners that he was under impression that Advocate Karkera and his associates, who were engaged by him were looking after the matter. It is contended that Advocate Karkera and his associates, remained absent and therefore the petitioner had to make alternate arrangements as Advocate Karkera was unable to pursue the matter on account of sickness of his wife, who was diagnosed with cancer since 2014 and she was undergoing treatment. It was only around first half of 2015 that the petitioner was informed by Advocate Karkera that his associate Shri Raikar was given instructions to conduct the matter. However, he failed to cross examine PW2 as a result of which the cross examination was closed.

The learned trial court has refused to recall the order on the ground that the suit is old and apart from advocate Shri Karkera, his associate was holding power and as such, the inability of advocate Karkera would not be sufficient. The learned trial court has found that the petitioners have not shown diligence in pursuing the matter and getting "timely updates from their advocates". The learned trial court has finally held that the Court cannot help any party who is not diligent.

I have heard Ms. Agni, the learned Senior Counsel for the petitioner and Mr. Usapkar, the learned counsel for the respondent nos.1 and 2. It is true that the suit is old and there were two advocates who were engaged and had filed vakalatnama to conduct the matter. However merely because there was another advocate engaged will not be sufficient in the facts of the present case, to decline permission to recall Pw2. Considering the overall circumstances and in order to afford a fair opportunity and in the interest of justice I find that recall can be allowed subject to condition of payment of appropriate costs. Hence, the following order is passed: Order:

(i) The petition is allowed.

(ii) The impugned order dated 10/4/2017 is set aside, subject to payment of costs of Rs.15,000/- (Rupees fifteen thousand only) to respondent nos.1 and 2 within two weeks from today.

(ii) On payment of costs aforesaid application Exhibit 96 shall stand allowed as prayed.

(iii) The trial court shall recall Pw2 and permit the petitioner to cross examine him. The petitioner shall not seek any further time or adjournment for cross examination of PW2 and shall complete the cross examination on the date fixed by the trial court.

(iv) Rule is made absolute in the aforesaid terms with no order as to costs.