Bombay High Court
NATALINA M. RODRIGUES ALIAS NATTY ALMEIDAversusROQUE PERPETUO FROIS (DECEASED) THR HIS LRS AND HIS WIFE AND 5 ORS
- Disposal
- Allowed
Holding
The High Court held that the 38‑day delay was condonable and allowed the petition, quashing the lower court’s orders.
Summary
Natalina M. Rodrigues filed a writ petition challenging the trial court's refusal to condone a 38‑day delay in filing an application to set aside an ex‑parte decree dated 07‑03‑2017 in suit No.55/2000/C. The delay arose because her original advocate withdrew, a new advocate was engaged, and a communication gap caused her to obtain certified copies of the decree only a month later. The trial court, relying on the Supreme Court’s decision in Basawaraj v. Land Acquisition Officer, held the delay was not bonafide and denied condonation. The High Court held that the reasons for delay were technical and not intentional, and that a 38‑day lapse could be condoned. Consequently, the High Court allowed the writ petition, quashed the impugned orders, and directed the trial court to decide the application to set aside the decree on its merits, imposing a cost of Rs.10,000 on the petitioner. The court also ordered the trial court to dispose of the matter within three months. The decision underscores a liberal approach to condonation of delay where no prejudice or advantage is shown by the petitioner.
Issues considered
- Whether a delay of 38 days in filing an application to set aside an ex‑parte decree can be condoned.
- Whether the trial court’s reliance on Basawaraj v. Land Acquisition Officer justifies refusal of condonation in the present facts.
Subjects
- ex‑parte decree
- condonation of delay
- Civil Procedure Code
- setting aside decree
- injunction
- high court
- writ petition
- cost award
- advocate withdrawal
- communication gap
Judgment
2026:BHC-GOA:1946
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IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.811 OF 2026
NATALINA M. RODRIGUES
VERSUS
SHRI. ROQUE PERPETUA FROIS AND ORS.
…
Ms. Maria Viegas, Advocate for Petitioner.
Mr. Vandit Joshi (through V.C.) Advocate for Respondent No.2.
Mr. Dinesh Naik, Advocate for Respondent No.5.
Ms. Maurisa Aquina Monteira, Advocate for Respondent No.6.
…
CORAM : S. G. CHAPALGAONKAR, J.
RESERVED ON : 24th SEPTEMBER, 2026.
PRONOUNCED ON : 30th SEPTEMBER, 2026.
FINAL ORDER:-
1. The petitioner impugns order dated 13.11.2025 passed by Ad-hoc
District Judge-1, Merces, Tiswadi, Goa in Miscellaneous Civil Appeal
No.75/2024 as well as order dated 12.09.2019 passed by Civil Judge
Junior Division, ‘C’ Court, Panaji in Civil Miscellaneous Application
No. 40/2017/C in RCS No. 55/2000/C, thereby dismissing petitioner’s
application for condonation of delay caused in filing application for
setting aside ex-parte decree dated 07.03.2017.
2. The respondent no.1 filed Regular Civil Suit No.55/2000/C
before Civil Judge Junior Division at Panaji claiming relief of
mandatory and permanent injunction against petitioner. On 29.09.2010,
suit was decreed. The petitioner challenged decree in Regular Civil
Appeal No.460/2010 before District Court, North Goa, who allowed
Appeal and remanded matter back to Trial Court with direction to
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appoint surveyor. On 07.03.2017, ex-parte judgment and decree came
to be passed in suit. As soon as petitioner got knowledge of decree, she
filed application for setting aside ex-parte decree alongwith Civil
Miscellaneous Application No.40/2017/C seeking condonation of delay.
The Trial Court refused to condone delay and dismissed Civil
Miscellaneous Application No.40/2017/C. The petitioner filed
Miscellaneous Civil Appeal No.75/2024 before District Judge, North
Goa, which came to be rejected by impugned order dated 13.11.2025.
3. Heard learned Advocates appearing for respective parties.
4. The record indicates that learned Civil Judge Junior Division,
Panaji passed ex-parte judgment and decree dated 07.03.2017 in
Regular Civil Suit No.55/2000/C. The petitioner filed application for
setting aside ex-parte decree on 16.05.2017 alongwith application
seeking condonation of delay. The petitioner asserted date of
knowledge of ex-parte decree as 23.03.2017. As such, there is delay of
about 38 days in filing application. The petitioner explained aforesaid
delay contending that petitioner was prosecuting two suits i.e. Regular
Civil Suit No.55/2000/C and Regular Civil Suit No.135/1999. She had
engaged Advocate B. Prabhu Dessai. Mr. Prabhu Dessai withdrawn his
appearance. Then petitioner approached Advocate M. Silveira. While
handing over documents to him, she furnished documents pertaining to
Regular Civil Suit No.135/1999 to Mr. Silveira. The papers relating to
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Regular Civil Suit No.55/2000/C were inadvertently not given to him.
Further, there was communication gap between her and Advocate
Silveira. On 23.03.2017, when petitioner approached Advocate Silveira
and solicited information regarding Regular Civil Suit No.55/2000/C,
she came to know that Advocate Silveira was not following Court
proceeding in Regular Civil Suit No.55/2000/C since May 2016.
Eventually, suit was decreed ex-parte. On 24.03.2017, Advocate M.
Silveira applied for certified copies. However, she was engaged in her
personal work and collected certified copies on 24.04.2017. Thereafter,
petitioner took steps for filing application for setting aside ex-parte
decree.
5. The Trial Court was of the view that aforesaid explanation was
not sufficient to condone delay and by relying upon observations of
Supreme Court in case of Basawaraj Vs. Land Acquisition Officer1
refused to condone delay. The Court observed that petitioner’s
Advocate could have easily obtained status of suit through CIS system
and there is no justification for belatedly applying for certified copies
and further collecting same a month thereafter. The Trial Court
observed that conduct of petitioner was lethargic and delay was not
bonafide.
6. This Court finds that aforesaid reasons recorded in impugned
order are hyper-technical in nature. The petitioner is lady and litigating
1 (2013) 14 SC 81.
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in respect of immovable property. She was dependent upon services
provided by Advocate. Due to withdrawal of appearance of Advocate
B. Prabhu Dessai, she availed services of another Advocate. The
communication gap between petitioner and Advocate engaged resulted
into delay of 38 days in filing application for setting aside ex-parte
decree.
7. Perusal of record nowhere indicates that delay was intentional or
petitioner could have drawn any advantage by making delay. Even
assuming that, there was some laxity on part of petitioner to take
diligent steps that itself cannot be reasons to refuse application for
condonation of delay of approximately 38 days. It is true that,
respondents must have suffered inconvenience and for that they can be
appropriately compensated. In result, Writ Petition deserves to be
allowed subject to certain conditions. Hence, following order:
ORDER
a. Writ Petition is allowed.
b. The impugned order dated 13.11.2025 passed by Ad-hoc District
Judge-1, Merces, Tiswadi, Goa in Miscellaneous Civil Appeal
No.75/2024 as well as order dated 12.09.2019 passed by Civil Judge
Junior Division, ‘C’ Court, Panaji, in Civil Miscellaneous Application
No.40/2017/C in Regular Civil suit No.55/2000/C are quashed and set
aside.
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c. Civil Miscellaneous Application No.40/2017/C is allowed subject
to cost of Rs.10,000/- to be paid to respondents/original plaintiffs within
period of four weeks from date of this order. In case of failure to
deposit cost within stipulated period, order dated 12.09.2019 passed by
Civil Judge Junior Division, ‘C’ Court, Panaji shall govern proceeding.
d. Delay of 38 days caused in filing application for setting aside ex-
parte decree is condoned. The Trial Court shall decide petitioner’s
application for setting aside ex-parte decree on its own merits within
period of three months from today.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/September-2026
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