On perusal of the findings in the impugned order, I find that the learned
Judge failed to note that on two occasions the matter was adjourned on
account of administrative reasons. These adjournments cannot be attributed
to the Appellant. Apart from that, the matter was fixed for clarification at the
instance of the learned Judge and ultimately though the matter was adjourned
at the instance of the Appellant to lead evidence on 10.09.2014, the matter
was posted on the said date for clarification. The matter was thereafter
posted on 26.09.2014 when the order came to be passed closing the evidence
of the Appellant in view of the objections raised by the respondent.
15. Though it is well settled that adjournment cannot be granted at the
asking of the parties but the fact remains that the adjournment sought in the
present case, i.e., on 26.09.2014 was as the Advocate desired to withdraw his
appearance on behalf of the Appellant. The fact that there was a delivery in
the family of the Appellant and, in fact, a child was born during the first
fortnight of September, 2014 on 04.09.2014 cannot be disputed. The fact that
the Appellant was in Pune in connection with the delivery of his daughter has
also not been disputed. Though the learned Judge has taken into
consideration the information produced by the Respondent no. 1 that the
delivery of his daughter was normal, that by itself cannot exclude a situation
when complications can occur subsequent to the delivery. There is no
positive material produced by the Respondent to suggest that the contention
of the Appellant that the delivery resulted in some complications to his
daughter is patently false. In any event, in case the respondents were
seriously disputing the averments on the grounds which the application was
filed, the Court could have proceeded to hold an inquiry and an opportunity
given to the parties to support their respective contentions in terms of the
provisions of the Civil Courts Manual. In the present case the records cannot
suggest that the Appellant was not diligent and was only bent on delaying the
matter. Though the learned Advocate for the Appellant before the Trial Court
sought adjournment for three weeks on the subject dates, the learned Judge in
view of the objections raised by the Respondents could have granted a shorter
adjournment subject to payment of costs or other terms. In such
circumstances, I find that the learned Judge was not justified to dismiss the
application filed by the Appellant for recalling the order of closing of the
evidence. It would be material to note that the application itself was filed
within 30 days and an affidavit was sworn by the Appellant on the said date.
This would further suggest that the Appellant was in Goa to proceed with the
evidence in case the learned Judge had permitted him to do so. Rules of
procedure are meant for facilitating the cause of justice and not to defeat it.
16. The Judgment of the Apex Court relied upon by Mr. Lawande, learned
Counsel appearing for the Respondent no. 1, would be applicable to the facts
of the present case. Considering the old age of the Petitioner and the facts
that the ground raised by the Petitioner to justify his absence on the relevant
date are plausible as admittedly his daughter had delivered a few days prior
to such date and looking into the roznama of the Court proceedings, it cannot
be said that the Petitioner has been deliberately seeking adjournments in
recording his evidence.
IN THE HIGH COURT OF BOMBAY AT GOA
FIRST APPEAL No. 65 OF 2015
Mr. Deepak Shah,
V/s.
M/s. Shah Builders,
CORAM:- F.M. REIS, J
Dated : 02.12.2016
Citation: 2017 (2) ALLMR 207
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