Koushalya v. State Bank of Bikaner and Jaipur — 1999 DIGILAW 139 (RAJ)

Honble SINGH, J.–Heard the learned counsels for the parties. (2). This appeal is directed against the judgment and decree passed by the Additional District Judge No.1, Jodhpur on 19th November, 97 in Civil Suit no. 155/95 by which the plaintiff- respondents suit was decreed against the appellant-defendant for a sum of Rs. 69,392/- with interest on the principal amount of Rs.49,649.00 @@ 14% per annum from the date of the institution of the suit to the date of payment. By the impugned judgment and decree the respondent-defendant was further authorised to sell the property which had been hypothecated by the appellant- plaintiff for the purpose of recovery of the decreetal amount. (3). The facts relevant for the disposal of this appeal may be briefly stated as below:- (4). According to the averments made in the plaint, the appellant moved an application before the respondent for grant of loan for the purpose of establishing Aluminium Handicraft. Term loan of Rs.90,000/- and working capital to the extent of Rs.16,000/- was sanctioned by the respondent. An agreement was executed bet- ween the parties on 12.2.1988. The agreement contained the terms as to rate of int- erest and the manner of computation of agreement, the appellant agreed to pay the amount of loan in instalments of Rs. 600/- per months. The first instalment was payble in May, 1988. Machinery and other property used by the appellant for the purpose of carrying his business was hypothecated with the respondent. The respo- ndent filed a civil suit no.155/95 for the purpose of recovering the amount of loan as well as interest. The respondent pleaded in the plaint that at the instance of the defendant, several payments were made against the goods, which the defendant wanted to purchase and these payments were entered in the account of the defendant. It was also stated in the plaint that a sum of Rs. 1000/- was paid by the defendant on 27.1.95. The remaining amount of the loan remained unpaid in spite of the demands made on behalf of the defendant. Consequently, the suit was filed with a prayer that a decree for Rs.69,392/- be passed against the defendant. (5). It was also stated in the plaint that a sum of Rs. 1000/- was paid by the defendant on 27.1.95. The remaining amount of the loan remained unpaid in spite of the demands made on behalf of the defendant. Consequently, the suit was filed with a prayer that a decree for Rs.69,392/- be passed against the defendant. (5). Regarding the cause of action, it was stated in the plaint that the cause of action accrued on 12.2.88 when the agreement for loan was executed and the cause of action also accrued on the day when the interest, which had accrued on the amount of subsidy was adjusted towards the loan amount and also on 13.3.93 and 31.3.93 when two documents executed by the defendant acknowledging her liability to pay the amount. It was stated in the plaint that cause of action also accrued on 27.1.95 when the sum of Rs. 1,000/- was paid by the defendant. (6). The appellant-defendant contested the suit. A written statement was filed by her. The defendant denied the receipt of any loan and the execution of any document in favour of the plaintiff. The defendant further denied that at her instance any payment was made by the plaintiff. Any payment of Rs.1000/- on 27.1.95 was also denied. It was specifically pleaded that the suit was barred by limi- tation and the plaint had been signed by the person not authorised to singh it. (7). The learned Additional District Judge No.1, Jodhpur framed as many as 9 issues. The plaintiffs evidence was closed on 30th May, 96. On that day, the plaintiff closed its evidence reserving the right of rebuttal. The case was adjourned to 25th July, 96 for defendants evidence. The defendant moved an application under Order 6 Rule 17 read with Section 151 C.P.C. seeking direction to amend the written statement. The case was adjourned to 7.8.96 for reply of that application and arguments. A perusal of the record of the lower court shows that from 25.7.96 to 1.10.97 the case was not listed for the evidence of the defendant. On 1.10.97, additional issues no. 10, 11 and 12 were framed and the case was adjourned to 16.10.97 for defendants evidence. On 16.10.97, the counsel for the defendant sought adjournment, which was granted and the case was adjourned to 22nd October, 97 for defendants evidence. On 1.10.97, additional issues no. 10, 11 and 12 were framed and the case was adjourned to 16.10.97 for defendants evidence. On 16.10.97, the counsel for the defendant sought adjournment, which was granted and the case was adjourned to 22nd October, 97 for defendants evidence. On 22.10.97 the defendant and her witnesses were not present. Her counsel made a request for adjournment, but the request was rejected and the evidence of the defendant was closed. Consequently, neither the defendant could examine herself nor she could produce any witnesses in her defence. After hearing the arguments, the learned Additional District Judge No.1, Jodhpur gave the judgment on 19.11.97 and decreed the suit as mentioned above. (8). The first contention of the learned counsel for the appellant is that the appellant-defendant was not given any opportunity to examine herself and produce the evidence in defence. It is also submitted by him that in the instant case, the respondent-plaintiff had been given several opportunities to produce the evidence, but only one opportunity had been one opportunity to the appellant-defendant and the case was adjourned on 16.10.97 to 22nd Oct., 97 giving only six days time to the defendant to produce her evidence. It is also submitted by the learned counsel for the defendant that the defendant could not examine herself and produce her witnesses because of the adjournment for a very short duration and the subsequent refusal to adjourn the case on request of the counsel of the appellant. The learned counsel for the appellant has placed reliance on the observations made by this Court in Kesar Singh vs. Abbas Ali (1) and Magan Lal vs. Chabi Lal (2). (9). In the case of Kesar Singh vs. Abbas Ali (supra), 5th January, 93 was fixed for evidence of the defendant no.5. On that day, the witnesses for the defendant no.5 were not present. An application was moved on 5.1.93. It was stated in the application that since Balkrishna had retired from service, the present Administrator was requested to present in the Court alongwith the record of the society. But the Administrator had refused to come to the Court on the request of the defendant no.5 and said that he would appear in the Court if he summoned. It was stated in the application that since Balkrishna had retired from service, the present Administrator was requested to present in the Court alongwith the record of the society. But the Administrator had refused to come to the Court on the request of the defendant no.5 and said that he would appear in the Court if he summoned. The facts of the case of Kesar Singh (supra) were quite different from the facts of this case, and therefore, the observations made in that case do not help the learned counsel for the appellant. (10). The learned counsel for the appellant has also placed reliance on Magan Lal vs. Chabi Lal (supra). In that case, the evidence of the defendant was closed on 3rd February, 95 on the ground that the defendant failed to keep his witnesses present and himself was not ready to give evidence and wanted time on the ground that his advocate had gone out. The case was adjourned to 10th February, 95 for hearing final arguments. On 10.2.95, an application was moved by the counsel for the defendant praying for sometime to enable him to approach the High Court for obtaining appropriate order against the order dated 3.2.1995 closing the evidence of defendant. Time was granted by the trial Judge up to 4.3.95 and thereafter, the case was adjourned to 25.3.95 for hearing arguments. Before that date, a revision petition was filed by the defendant in this Court. After taking in to consideration the facts and circumstances of the case, the learned Single Judge held that one more opportunity should have been granted by the trial court to the defendant to produce his evidence. The learned Single Judge gave the reasons in the following words:- ``At least one more opportunity was required to be given particularly when enough opportunities were given to the plaintiff. The learned Judge has overlooked the fact that the plaintiff was enjoying temporary injunction in his favour and therefore also, if one more opportunity was granted to the defendant then it would not have caused any prejudice to the plaintiffs. This is not the way in which the trial court should function. Unless and until the trial court is satisfied that the party is not at all willing to proceed with the case and wants to delay the proceedings at any cost then only granting the adjournment, otherwise not. (11). This is not the way in which the trial court should function. Unless and until the trial court is satisfied that the party is not at all willing to proceed with the case and wants to delay the proceedings at any cost then only granting the adjournment, otherwise not. (11). The learned counsel for the respondent has submitted that in this case the defendant has been given sufficient opportunity to produce her evidence in as much as after the framing of the additional issues no. 10, 11 and 12, the case was adjourned to 16th October, 97 for the evidence of the defendant and no opportunity was granted to the defendant when the case was adjourned to 22nd October, 97 on the request of the counsel for the defendant, and therefore, it cannot be said that the trial court did not give sufficient opportunity to the defendant to produce her evidence. (12). I have carefully considered the submissions made by the learned counsel for the parties. The very object of the provisions contained in Order 17 C.P.C. is to ensure that the case is instituted in civil courts are not adjourned unnecessarily. Rule 1 of Order 17 C.P.C. empowers the Court to adjourn the hearing of the suit from time to time, at any stage of the suit, if sufficient cause is shown by the parties to the suit. Sub-rule (2) of Rule 1 of Order 17 C.P.C. provides that hearing of the case shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. It is also provided in sub-rule(2) of Rule 1 Order 17 C.P.C. that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party and the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment. It is also provided in sub-rule(2) of Rule 1 Order 17 C.P.C. that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party and the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment. It is also provided in sub-rule(2) of Rule 1 of Order 17 C.P.C. that where a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination- in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid. Rule 2 of Order 17 C.P.C. provides that where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. The explanation given below Rule 2 of Order 17 C.P.C. reads:- ``Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present. (13). Rule 3 of Order 17 C.P.C. provides that 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-(a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them, is absent, proceed under Rule 2. (14). A perusal of the order-sheets of the lower court shows that the decision in the case was given on 19.11.96. (14). A perusal of the order-sheets of the lower court shows that the decision in the case was given on 19.11.96. This decision does not appear to be under clause (a) of Rule 3 of Order 17 C.P.C., because the suit was not decided forthwith as contemplated by clause (a) of Rule 3 of Order 17 C.P.C. The impugned judgment may therefore, be regarded as a judgment delivered under clause (b) of Rule 3 of Order 17 C.P.C. (15). Clause (b) of Rule 3 of Order 17 C.P.C. empowers the Court to proceed in accordance with Rule 2 of Order 17 C.P.C. Rule 2 of Order 17 C.P.C., ordinarily requires the Court to proceed in accordance with the provisions of Order 9 of the Civil Procedure Code and in view of the explanation given in Rule 2 of Order 17 C.P.C., where the evidence or a substantial portion of the any party has been recorded, the Court is empowered to proceed with the case otherwise than in accordance with the provisions contained in Order 9 as if such party were present. In the instant case, neither the defendant was examined nor her witnesses were examined, and therefore, the case of the defendant appellant is not covered by the explanation given in Rule 2 of Order 17 C.P.C. In these circumstances, the order dated 22.10.97, whereby the evidence of the appellant-defendant was closed can at best be regarded as an order u/S. 151 C.P.C., which saves the inherent powers of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. (16). If the order dated 22nd October, 97 is regarded as an order passed u/S. 151 C.P.C., such an order would have to specify the conditions laid down in Section 151 C.P.C., namely, that it was passed with a view to prevent the abuse of the pro- cess of the Court or to secure the ends of justice. In the instant case, the order dated 22.10.97 does not show that the Presiding Officer of the learned trial Court considered it necessary to close the evidence of the defendant for the purpose of securing the ends of justice or for preventing the abuse of the process of the Court. In view of the aforesaid position of law, I respectfully concur with the view taken by brother Honble Mr. In view of the aforesaid position of law, I respectfully concur with the view taken by brother Honble Mr. Justice B.J. Shethna in Magan Lal vs. Chabi Lal (supra) that unless and until the trial Court is satisfied that the party is not at all willing to proceed with the case and wants to delay the proceedings at any cost then only it should exercise the discretion of not granting the adjournment. But, I deem it fit to add that while passing an order u/S. 151 C.P.C., the Court must consider whether it is necessary in the interest of justice or for preventing the abuse of the process of the Court to close the evidence of the party, who is negligent in producing its evidence. (17). Besides, the fact that the order dated 22.1.97 does not show that the learned Additional District Judge considered it necessary to close the evidence of the defendant to secure the ends of justice or to prevent abuse of the process of the Court, there is another reason, which is important in this regard. Rule 14 of Order 16 C.P.C. reads:- ``R.14. Court may of its own accord summon as witnesses strangers to suit.-Subject to the provisions of this Code as to attendance any appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person, including a party to the suit, and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence or to produce any document in his possession, on a day to be appointed, and may examine him as a wit- ness or require him to produce such document. (18). Rule 14 of Order 16 C.P.C. thus imposes a duty on the Court to consider whether it is necessary in the interest of justice to examine any party or any other person, who has not been examined. In the instant case, the defendant is an unemployed young lady, who is alleged to have obtained loan from the plaintiff res- pondent-bank for the purpose of setting up Aluminium Handicraft. Unfortunately, the venture failed and the loan could not be repaid by her. In the instant case, the defendant is an unemployed young lady, who is alleged to have obtained loan from the plaintiff res- pondent-bank for the purpose of setting up Aluminium Handicraft. Unfortunately, the venture failed and the loan could not be repaid by her. The suit was instituted beyond the period of limitation and for bringing the suit within the time, the plaintiff-respondent placed reliance on the alleged payment of Rs.1000/- on 27.1.95 and the execution of two documents i.e. Ex.17 and 18 for the purpose of obtaining the benefit of Sections 18 and 19 of the Limitation Act. In the written statement, the appellant-defendant denied the execution of the agreement and all other transactions as were alleged in the plaint and also denied having written any document in favour of the bank. On several occasions, she considered it necessary to amend the written statement in order to take proper pleas in defence and her amended applications were allowed by the Court. Keeping these facts and circumstances in to consideration, it was a case in which even if the defendant did not produce herself and her witnesses, the Court ought to have exercised the powers conferred on it under Rule 14 of Order 16 C.P.C. The learned trial Judge has failed to do so. Consequently, I have no hesitation in coming to the conclusion that it is a case in which the trial is vitiated because of denial of sufficient opportunity to the defendant to produce her evidence and non-application of mind by the learned trial Judge under Rule 14 of Order 16 C.P.C. On this ground alone, the impugned judgment and decree deserves to be set aside and the case deserves to be reman- ded to the lower court under Rule 23-A of Order 41 C.P.C. (19). For the reasons mentioned above, the impugned judgment and decree date 19.11.97 passed by the learned Additional District Judge No.1, Jodhpur in civil suit no.155/95 is hereby set aside and the case is remanded to the learned Additional District Judge No.1, Jodhpur under Order 41 Rule 23-A C.P.C. with the direc- tion that after the appearance of the parties in the Court, at least 30 days time should be given to the defendant to produce herself and her witnesses in defence and in case the defendant does not produce herself and her witnesses, the learned Additional District Judge No.1, should consider whether it is necessary to examine the defendant under Rule 14 of Order 16 C.P.C. and to examine her, if it is conside- red necessary in light of the observations made in the judgment and to dispose of the case in accordance with law after giving opportunity of hearing to both the parties. (20). The appeal is disposed of accordingly. The parties to the case shall bear their own costs. The parties are directed to appear in the Court of learned Additio- nal District Judge No.1, Jodhpur on 23.2.1999.