Penthouse Builders vs Valeriano Leo De Souza
2006 Latest Caselaw 53 Bom

JUDGMENT

Khandeparkar R.M.S., J.

1. Heard. Rule. By consent, the rule is made returnable forthwith. Shri Menezes waives service for the respondent. The petitioner challenges the orders passed by the courts below, dismissing the application to get order of dismissal of the suit set aside and further for restoration of the suit. The trial Court has dismissed the application solely on the ground that the petitioner had availed of sufficient opportunity to proceed with the suit and yet had failed to appear on the concerned date and, therefore, there was no merit in the application for restoration of the suit. The lower Appellate Court has dismissed the appeal against the said order on the ground that the matter was already adjourned on three earlier occasions at the instance of the petitioner and further that there was no medical evidence in support of the claim of the petitioner that he had approached the doctor on the relevant day. Relying upon the decision in the case of Mukesh Chandandas Harvani v. Pramilabai Ramesh Sangole and Ors. , the learned Advocate for the petitioner has submitted that mere absence of the medical certificate would not lead to a conclusion that the petitioner was not ill on the date when the matter was called out and dismissed for default. On the other hand, the Advocate for the respondent has submitted that the conduct of the petitioner does not warrant any interference in the impugned order and the same has been passed by the lower Appellate Court based on the documentary evidence as well as all other materials placed on record, and has rightly held that the petitioner had availed three adjournments and that the partitioner had failed to justify its absence when the suit was dismissed for default.

2. It is not necessary to go into the rival contentions canvassed on behalf of the parties. Suffice it to refer to the fact that neither the trial Court nor the lower Appellate Court has taken into consideration the most relevant fact which is required to be considered in this case where the application was filed essentially for restoration of the suit which was dismissed for default. In such cases, the Court has to consider primarily whether the applicant has shown sufficient cause for remaining absent on the day when the suit was dismissed for default. His past conduct can be considered as a corroborative piece of evidence in support of the dismissal of the suit for default as well as to justify findings against such applicant while dismissing the application for restoration of the suit. However, without considering the basic point regarding sufficient cause for absence of the applicant on the day when the suit was dismissed for default, mere consideration of other aspects of the matter cannot be a justification to reject the application for restoration of the suit. A perusal of the order passed by the lower Appellate Court apparently discloses that the Court was more concerned about the past conduct of the petitioner rather than considering the issue regarding the cause for absence of the party on the day when the suit was dismissed for default.

3. Undoubtedly, the petitioner had failed to produce the medical certificate in support of his claim regarding his illness. Nevertheless, there is nothing placed on record by the respondent to show that in fact on the concerned day the petitioner was not ill or had been attending any other work ignoring his obligation to attend the Court in the above matter. In such circumstances, the learned Advocate for the petitioner is justified in drawing attention of this Court to the decision of the learned Single Judge of this Court in the case of Mukesh Chandandas Harvani (supra).

4. The observations by the lower Appellate Court that the suit was adjourned on three occasions earlier at the instance of the petitioner does not seem to be correct as it is borne out from the record that in fact the suit was dismissed for default on 16.6.04 itself and the same is considered as one of the adjournments at the instance of the petitioner. Besides, the matter does not appear to have been fixed for recording evidence of the petitioner on 25.3.04 nor does it appear that it was adjourned at the instance of the petitioner. The matter, prior to 25.3.04 was referred to the Lok Adalat and the settlement at the Lok Adalat having been failed on 28.2.04 the matter was directed to be placed on regular board on 25.3.04. The Roznama entries do not disclose that the matter was fixed for recording evidence on 25.3.04. Being so, the record nowhere discloses that the suit was adjourned from 25.3.04 to 27.4.04 at the instance of the petitioner.

5. For the reasons stated above, therefore, the findings arrived at by the lower Appellate Court do not appear to be borne out from the records. As already observed above, the trial Court did not consider any of the above aspects of the matter and has merely dismissed the application because the partitioner had already availed of the opportunity to proceed with the matter and had failed to take advantage of such opportunity, without considering any cause for the petitioner to remain absent on the relevant day.

6. In the circumstances, the impugned orders cannot be sustained and are liable to be quashed and set aside and are, hereby, quashed and set aside. Considering the fact that the suit is of the year 1989, it is necessary to direct the trial Court dispose of the suit as expeditiously as possible and, in any case, on or before 31 December, 2006. The petitioner shall file its affidavits of evidence within 15 days from today and shall appear on the day fixed for cross-examination, without fail. With these observations, the impugned orders are, hereby, quashed and set aside and the Special Civil Suit No. 64/89, re-registered as Regular Civil Suit No. 54/ 2004 is, restored, to the file of the Civil Judge, Senior Division at Margao and the Court is directed to proceed with the same bearing in mind the aforesaid observations. The parties to appear before the said Court for further proceedings in the matter on 1 February, 2006 at 10.30 a.m.

7. The writ petition is allowed. Rule is made absolute in the above terms with costs of Rs. 500/-.