Oral Judgment:
Heard Shri M. Pereira, learned Counsel appearing for the petitioner and Shri A.D. Bhobe, learned Counsel appearing for the respondents.
2. Rule. Heard forthwith with the consent of the learned Counsel. Learned Counsel appearing for the respondents waives service.
3. The above petition challenges an order dated 10/10/2012 passed by the learned Civil Judge, Senior Division at Vasco whereby the evidence of the petitioner came to be closed in view of the absence of the witness of the petitioner.
4. Shri M. Pereira, learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that the petitioner had sought two adjournments and thereafter the advocate appearing for the petitioner returned the brief. The learned Counsel further pointed out that on the subsequent date when the advocate appearing on behalf of the petitioner sought an adjournment, witness of the petitioner was not present and, as such, the learned Judge passed the impugned order closing the evidence of the petitioner. The learned Counsel further pointed out that the petitioner has not sought any adjournment on the prior dates and, as such the learned Judge was not justified to close the evidence of the petitioner. The learned Counsel further pointed out that the petitioner desired to examine another two witnesses in support of his case. The learned Counsel, as such, submitted that the impugned order be quashed and set aside.
5. On the other hand, Shri A.D. Bhobe, learned Counsel appearing for the respondents supported the impugned order. The learned Counsel pointed out that the petitioner is unnecessarily dragging the matter and delaying the disposal of the suit and according to him the suit has no substance. The learned Counsel further pointed out that on the date when the new advocate appeared on behalf of the petitioner, the witness of the petitioner was not present and the learned Judge was as such justified to pass the impugned order. The leaned Counsel further pointed out that considering the conduct of the petitioner no interference is called for in the impugned order under Article 227 of the Constitution of India.
6. I have carefully considered the submissions of the learned Counsel. The records reveal that prior to the impugned order dated 10/10/2012, the petitioner had sought two adjournments for the purpose of recording of the evidence. The records further reveal that on 10/10/2012 though the petitioner had taken steps to engage a new lawyer, such lawyer could not appear as the requisite NOC from the earlier lawyer could not be obtained. As such, in the peculiar facts and circumstances of the case and taking note of the contention that the absence of the petitioner's advocate was on account of non-receipt of the NOC, I find that in the interest of justice another opportunity is to be given to the petitioner to lead further evidence. No doubt the inconvenience caused to the respondents would have to be compensated by awarding costs. Thus, in the facts and circumstances of the case, such costs are quantified at Rs.5,000/-.
7. In view of the above, I pass the following order:
ORDER
(i) The impugned order dated 10/10/2012 is quashed and set aside subject to the petitioner paying costs of Rs.5000/- to the respondents as condition precedent.
(ii) The petitioner shall ensure that his witnesses are present on the dates fixed by the learned Judge for recording such evidence.
(iii) Rule is made absolute in the above terms.
(iv) The petition stands disposed of accordingly.