Mrs. Sabas Sequeira And 2 ORS., v. Mrs. Lucia Pereira E Barreto And 21 ORS.,

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.309 OF 2017 1.

Mrs Sabas Sequeira, W/o late Blasio Sequeira and her children 2.

Mr. Ricky Sequeira S/o late Blasio Sequeira 3.

Mrs. Jennifer Sequeira H. No.75, Gontonaik Orlim, Salcete Goa The Petitioner at Sr. No.3 is represented by her Constituted Attorney Mrs. Ana Luela D'Souza e Fortes, wife of Damaso Filipe Nery Fortes, and daughter of late Austin D'Souza, residing at House No.230, Bironaik, Orlim, Salcete Goa under General Power of Attorney executed before Notary Vinod Pundalik Halarnkar, Margao Goa, State of Goa under reg. No.7335/2014 dated 13/10/2014 .. Petitioners Vs.

1.

Mrs. Lucia Pereira e Barreto Aged 51 years, Pereira and her daughter 2.

Miss Lizel Barreto Age 26 years, d/o Mr. Roque Barreto (missing for last more than 7 years)

both residing at H.No.352(C) Khandy, Cavelossim, Salcete Goa.

3.

Mrs. Julia Pereira Age 49 years, Pereira married and her husband 4.

Mr. Roy Barreto Age 54 years, s/o late Lourenco Barreto both residing at H.No.329, Batty, Orlim, Salcete, Goa 5.

Mrs. Maria H. Pereira e Fernandes Age 46 years, d/o late Jorje Minguel Ciriaco Pereira married and her husband 6.

Mr. Joao Gabriel Fernandes Age 46 years, s/o late Francisco Fernandes both residing at H. No.106, Udguelem, Orlim, Salcete, Goa 7.

Mr. Alipio Sequeira s/o late Blasio Sequeira 8.

Mr. Celso Sequeira S/o late Blasio Sequeira both H.No.75, Gontonaik, Orlim, Salcete Goa 9.

Mrs. Fatima Gomes Wife of late Filomena Gomes, And her children 10.

Mr. Daryl Gomes, s/o late Filomena Gomes,

11.

Mrs. Birdie Gomes d/o late Filomena Gomes married and her husband 12.

Mr. Niel D'Cruz All residing at H.No.not known Murda Grande, Nuvem, Salcete, Goa 13.

Mr. Franklin Coutinho s/o late Luis Coutinho and late Felelecola Pereira, 14.

Mr. Fritegerald Coutinho s/o late Luis Coutinho late Felelecola Pereira, 15.

Miss Farida Coutinho, d/o late Luis Coutinho and late Felelecola Pereira all residing at H.No.136, Luis Vaddo, Calata, Majorda, Salcete, Goa 16.

Mrs. Jeru Pereira e Barreto Pereira and her children 17.

Mr. Fidelis Barreto s/o late Joseph Paul Barreto 18.

Mr. Felix Barreto s/o late Joseph Paul Barreto 19.

Mr. Freddy Barreto S/o late Joseph Paul Barreto

20.

Mr. Jovito Barreto s/o late Joseph Paul Barreto all residing at H.No.not known Calconda, Navelim, Salcete, Goa 21.

Mrs. Conceicao Pereira, Pereira married and her husband 22.

Mr. Sebastiao Pereira s/o late Lucio Pereira both residing at H.No. not known Comba, Paricotto Cuncolim, Salcete, Goa ...

Respondents Mr. S. S. Kakodkar, Advocate for the petitioners. Mr. C. A. Ferreira, Advocate for respondent nos.1, 3, 5 and 6. Coram :- M. S. SONAK, J.

Date :- 11 th April, 2017 ORAL JUDGMENT :- Heard Mr. Kakodkar for the petitioners and Mr. C. A. Ferreira for respondent nos.1, 3, 5 and 6, who are the contesting respondents.

2.

Rule. Rule is made returnable forthwith. With the consent of the learned Counsel for the parties, heard forthwith.

3.

In the order dated 10/04/2017, it is recorded that the service is complete in the matter.

4.

The challenge in this petition is to the order dated 08/03/2017, by which the learned Trial Judge has closed the petitioners' (original defendants') evidence. 5.

From perusal of the impugned order, it does appear that the petitioners have dragged the matter for the last one year without stepping into the witness box. Despite grant of opportunities, the petitioners did not file the affidavit in lieu of examination-in-chief, though the copy of the same, was furnished to the respondents/ plaintiffs.

6.

Mr. Ferreira, the learned Counsel for the contesting respondents has placed on record the roznama, which indicates that for the last one year, the petitioners have not been diligent in the matter. Mr. Kakodkar, the learned Counsel for the petitioners points out that even the plaintiffs have not been diligent in the matter. This is entirely irrelevant for the purposes of examining whether there was any justification for making the impugned order.

7.

Though, there is, to some extent, negligence or at least, lack of due diligence on the part of the petitioners, the order, directing that the defence evidence be closed, is rather harsh. The respondents, no doubt, may have been prejudiced on account of delay attributable to the petitioners. However, such prejudice is one, which can, in the facts and circumstances of the present case, be compensated by suitable costs. Further, the petitioners are also required to be put to terms, so that the petitioners do not further delay the matter.

8.

Accordingly, the impugned order dated 08/03/2017 is set aside. The petitioners shall pay costs of Rs.15,000/- to the respondents. The amount of costs have already been deposited by the petitioners and, therefore, respondent nos.1, 3, 5 and 6, who have contested this matter, are entitled to withdraw the same unconditionally.

9.

Further, Mr. Ferreira points out that the matter is fixed before the learned Trial Judge on 12/04/2017 i.e. tomorrow. The petitioners to step into the witness box tomorrow itself, so that evidence can proceed from tomorrow itself, if convenient to the learned Trial Judge. The petitioners, to co-operate fully with

learned Trial Judge, so that there is no further delay in the record of evidence and the disposal of the suit. Unless there is any exceptional circumstance, the learned Trial Judge need not consider motions for adjournments on behalf of the petitioners. 10.

Rule is disposed of in the aforesaid terms.

11.

All concerned to act on the basis of authenticated copy of the order.

M. S. SONAK, J.

SMA