Junaram Bora v. Saruchoali Kuchuni and others — 1975 DIGILAW 13 (GAU)

Judgement JUDGMENT:- This appeal is by the principal defendant, Junaram Bora (hereinafter referred to merely as the defendant.) 2. The plaintiff filed a suit for declaration of her title and confirmation of possession in respect of the suit land measuring 1 katha and 1/2 lecha being half of the total land covered by Dag No. 377. Her case is that the total land covered by dag No. 377 was the joint property of her husband Krishnaram and his brother Mihiram, who had equal shares in the land. The land was partitioned during the lifetime of her husband and the eastern half fell to her husbands share and he was in possession thereof. Before his death the husband made a gift of the suit land together with some other property under a registered deed of gift date 18-7-32 and since then she was in physical possession of the land. The defendant set up his title to the suit land and threatened to dispossess the plaintiff. Hence she filed the present suit. 3. The defendant does not deny that the property in question was the joint property of Krishnaram and Mihiram. His case is that on the death of Mihiram his shares devolved on his daughter Moina, who was enjoying her fathers share jointly with Krishnaram. During 1942-43 there was an amicable partition of the property and Moina got the entire land of dag No. 377 and Krishnaram got his share elsewhere. Moina died leaving a minor son, Puspa. Kamala, Moinas husband, sold the land on behalf of Puspa to one Jadunath by a registered deed of sale on 8-12-1949 and delivered possession. In turn Jadunath sold the land to the defendant by a registered deed of sale on 9-12-1949. 4. The Munsiff decreed the plaintiffs suit. 5. In order to appreciate the points raised before me a few further facts need be stated. The suit was filed in Court of Munsiff on 11-7-1969 and it was protracting, several adjournments having been given for one reason or other. One of the adjournments was granted on 11-12-1970 on which date the suit was fixed for peremptory hearing. On that date the plaintiff was ready with witnesses but the defendant prayed for an adjournment on the ground of illness. The adjournment was granted and the defendant was directed to pay a cost of Rs. 10/-. One of the adjournments was granted on 11-12-1970 on which date the suit was fixed for peremptory hearing. On that date the plaintiff was ready with witnesses but the defendant prayed for an adjournment on the ground of illness. The adjournment was granted and the defendant was directed to pay a cost of Rs. 10/-. Ultimately, after several adjournments thereafter, the suit was fixed for peremptory hearing on 27-7-71. On that date the plaintiff was ready with witnesses, but the defendant prayed for an adjournment on the ground that due to his illness, he could not summon his witnesses. The Munsiff granted adjournment on payment of Rs. 50/- as adjournment cost to be paid on the following date and the case was fixed for peremptory hearing on 3-9-71. On that the date both the parties were ready with witnesses; three witnesses of the plaintiff were examined and the hearing was adjourned till 9-11-71 as there was no time for further hearing. The defendants on that date filed a petition with a prayer for reducing the adjournment cost of Rs. 50/- awarded against him on the previous date. The defendant had to pay altogether adjournment costs of Rs. 60/-. The Munsiff reduced this amount to Rs. 50/-. He ordered that the defendants case would be heard only if he paid the adjournment cost on that date. On 9-11-71 the plaintiff was ready with witnesses, but the defendant filed a petition for adjournment on the ground that his witnesses were ill on that date. The Munsiff rejected the petition on the ground that the defendant had taken no steps to summon his witnesses, that his petition was not verified, and that the motive of the defendant was to prolong the case. Two more witnesses of the plaintiff were examined on that date, but the defendant was not allowed to cross-examine these two witnesses as he had not paid the adjournment cost as directed and 24-11-1971 was fixed for hearing argument. On that date the defendant filed an application stating that he was ready with the adjournment cost and prayed for recalling the plaintiffs witnesses for cross-examination, but the application was rejected and the suit was fixed for delivery of judgment on 14-12-1971. As the Munsiff was absent on leave on that date, the judgment was delivered on 6-1-1972. 6. On that date the defendant filed an application stating that he was ready with the adjournment cost and prayed for recalling the plaintiffs witnesses for cross-examination, but the application was rejected and the suit was fixed for delivery of judgment on 14-12-1971. As the Munsiff was absent on leave on that date, the judgment was delivered on 6-1-1972. 6. The first submission of learned counsel for the appellant is that the learned Munsiff committed an illegality in striking off the defence of the defendant. His submission is that the valuation of the suit was Rs. 500/- and the cost assessed in the decree was Rs. 46.54 p. He, therefore, submits that the adjournment cost of Rs. 50/- was highly disproportionate. 7. It is indisputable that Order 17, Rule 1 of the Code of Civil Procedure (hereinafter called the Code) gives power to a Court to grant adjournment at any stage of the suit to the parties or any of them, and to make such order as it thinks fit with respect to the costs occasioned by the adjournment. The Court also has the power to make prepayment of the adjournment cost a condition before the defaulting party at whose instance the adjournment has been granted, is heard. A Division Bench of this Court in the case of the Gauhati Bank Ltd. v. Baliram Dutta reported in AIR 1950 Assam 169 has observed : "The powers of the Court to adjourn the hearing of the suit from time to time under Order 17, Rule 1 are very wide. It may grant adjournment on any terms that it considers fit. It is, therefore within the competence of the Court to grant an adjournment on the condition that costs are paid on a particular date, failing which the suit shall be dismissed or defence struck off as the case may be. Such a condition if imposed could also be enforced in the event of non-compliance of the order." But the adjournment cost must not be arbitrary or imposed by way of penalty; it should be to meet the reasonable expenses of the ready party that it has to bear because of the adjournment granted at the instance of the other party. Such a condition if imposed could also be enforced in the event of non-compliance of the order." But the adjournment cost must not be arbitrary or imposed by way of penalty; it should be to meet the reasonable expenses of the ready party that it has to bear because of the adjournment granted at the instance of the other party. In AIR 1946 Bom 113 on which the appellant has taken reliance, the Bombay High Court has observed: "In granting an adjournment of the hearing of the suit the Court is empowered by Order 17, Rule 1 (2), to make, such orders as it thinks fit with respect to the costs occasioned by the adjournment. The expression occasioned by the adjournment is deliberately used in order that the discretion of the Court should not be restricted to the taxable costs of the day. The principle underlying Order 17, Rule 1 (2) is that the party who is ready to proceed with the suit should be awarded such costs as can reasonably be held to be occasioned by the adjournment, and as might reasonably compensate him for the expense incurred by reason of the adjournment. Of course the condition imposed should not be in the nature of a penalty or punishment to the party asking for adjournment, and hence the costs awarded should in no case exceed a sum commensurate with the expense, which, in the opinion of the Court, the party ready to proceed reasonably incurs as a result of the adjournment." Appellant also cites AIR 1964 J. and K. 58 in support of his contention. This case is not helpful to the appellant. In that case the valuation of the suit was Rs. 4331.34 and the adjournment cost awarded was Rupees 300/- which was imposed in the shape of a penalty on the ground that the defendant was a "big business concern" and the plaintiff was a poor man and the High Court in revision reduced the amount to Rs. 30/-, as the adjournment cost of Rs. 300.00 was imposed not on judicial considerations but by way of penalty. 8. In the instant case let us see whether the adjournment cost was arbitrary by way of penalty or imposed on judicial principles. On 9-11-1971 the plaintiff was present with 7 witnesses. 30/-, as the adjournment cost of Rs. 300.00 was imposed not on judicial considerations but by way of penalty. 8. In the instant case let us see whether the adjournment cost was arbitrary by way of penalty or imposed on judicial principles. On 9-11-1971 the plaintiff was present with 7 witnesses. The learned counsel appearing for the respondents submits that the plaintiff had to pay his advocates fee, fee of the pleaders clerk and conveyance and other costs of the P. Ws., which he submits, in calculation, totals more than Rs. 50/-. He submits that this amount of Rs. 50/- was not only not disproportionate but was justified. This submission of the learned counsel for the respondents that the costs occasioned by the adjournment would come to not less than Rs. 50, could not be challenged by learned counsel for the appellant. It must therefore be held that the adjournment cost of Rupees 50.00 was imposed not by way of penalty, and the impugned order is not illegal. 9. One of the points raised by learned counsel for the respondents was that the appeal was incompetent inasmuch as the decree was ex parte under Order 17, Rule 2 of the Code. In my opinion this submission of learned counsel has no substance. Rule 3 of Order 17 provides : "Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith." In the instant case time was granted to the defendant (i) to cause the attendance of his witnesses, and (ii) to pay as a condition precedent the adjournment cost. The defendant failed to perform both the acts. The Court then proceeded to decide the suit and did decide it. Clearly, therefore, the decree was under Order 17 Rule 3 and the appeal was competent. 10. In the merit of the judgment the appellant has not pointed out any error of law committed by the learned lower Appellate Court. The learned Courts below have considered Ext. 1, the deed of gift, Exts. 4 to 9, the Record of Rights and the revenue receipts Ext. 10. In the merit of the judgment the appellant has not pointed out any error of law committed by the learned lower Appellate Court. The learned Courts below have considered Ext. 1, the deed of gift, Exts. 4 to 9, the Record of Rights and the revenue receipts Ext. 10 series, and have come to the categorical finding that the disputed land belonged to and was in exclusive possession of the plaintiff. This is a finding of fact, which, even if erroneous, cannot be upset in a second appeal. 11. This appeal has no force and is dismissed. I, however, make no order as to costs. Appeal dismissed.