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2000 DIGILAW 79 (JK)

Habibullah Shora v. Jalla Bano

2000-04-25

NISAR AHMAD KAKRU

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1. This order will deal with two applications filed by the defendant (Petitioner herein) under section 24 read with section 151 for withdrawal of two suits captioned Mst. Jala Bano versus Habibullah Shora and Ghulam Mohidin Vs. Habibullah Shora from court of the Sub-Judge (CJM) Srinagar with further prayer for disposal by this court on the ground that the trial court has been according adjournments on asking, thereby helping the Respondent-plaintiff to prolong the pendency of the suit to the petitioner™s detriment and an apprehension is registered alleging non-inclination of the Presiding Officer to decide the suits. 2. To succeed in the motion, my attention has been drawn to the proceeding of the suits, copies of which are appended with this petition. It transpires from these proceedings that during last two decades adjournments have been granted as a matter of routine, consequently the petitioner was constrained to approach this court by medium of transfer applications more than once. He has succeeded at times, resultantly files had to move from one lower court to the other under the orders of this court. What had prompted this court to pass such orders is an endeavour for disposal of the suits but surprisingly, the Presiding Officers have not adhered to these directions So much so, direction of the apex court dated 03-03-1976 has also gone unheeded. All this suggests judicial indiscipline and I would not have hesitated to initiate an action against the officers responsible for the error but what precludes me is that on the examination of the proceedings I am of the considered opinion that the omission on their part does not emanate from extraneous considerations. Be that as it may the fact remains that disposal of the cases has been delayed unduly by adjournments. 3. Here arises a question as to whether a party to the suit is entitled to an adjournment as a matter of right. To have an answer, order XVII Rule (1) and its proviso (b) assume significance and for facility of reference same are extracted as under: 1. Court may grant time and adjourn hearing :- (1) The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. Provided that:- a) ......... Court may grant time and adjourn hearing :- (1) The court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit. Provided that:- a) ......... b) No adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. c)......... d).........� 4. A perusal of aforementioned provisions reveal that it is within the discretion of the court to grant an adjournment but discretion can be exercised provided sufficient cause is shown, thus sufficiency of cause is a condition precedent. This provision has been observed in breach. I say so because case has been adjourned on mere asking and without any cause and the delay in disposal tantamounts to denial of justice. The courts have to arrest the tendency of dilly dallying as otherwise the people may lose faith and confidence in the judicial system and rule of law. To allay such apprehension it is imperative upon the courts to adhere to the provisions of law and the proceedings must not go unchecked in any circumstance. 5. The LC for the petitioner appears too much apprehensive. His contention is that if the suits are not decided by this court, the plaintiff may elect to absent before the court below resulting in dismissal of the suits under order IX rule 8 and in such a situation, the plaintiff having a remedy available to seek the setting aside of the dismissal under order IX rule 9 is likely to invoke such remedy which will protract the litigation further. Whether hypothesis of adversity so urged has any basis need not detain me because it is mere assumption and guess. Yet I would like to examine the legal position and pertinent it is to refer to Rule 2 0 XVII besides explanation inserted thereto, which are reproduced hereunder: "2. Procedure if parties fail to appear on day fixed- 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. Explanation:- 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 was present.� 6. A plain reading of the rule reveals that when the parties or any one of them fail to appear in a case where evidence is recorded, the court can deviate from order IX to decide the matter on its merits provided substantial portion of evidence is available before it. The rule does not exclude a case from its purview where evidence has been recorded and is for final hearing, thus trial court is within its powers to take recourse to rule 2 and decide the matter on its merits and in such a situation departure from order IX is permissible. In the case on hand the evidence stands recorded and the case is ripe for hearing, therefore failure of the plaintiff or defendant should not work as an impediment for the trial court in disposal of the case and in view of the directions of this court passed from time to time and on top of all the direction of the Supreme Court, the court shall decide the matter notwithstanding the non-appearance of parties or any of them. 7. Adverting to the prayer of the petitioner/defendant seeking withdrawal of the suit from lower court and its disposal by this court, it needs to be observed that since grant of prayer is bound to deprive one of the parties of its statutory right of appeal, thus likely to be prejudiced, therefore declined, but while refusing the indulgence expeditious disposal of the suit has to be ensured, so as to compel obedience of the orders of the apex court and this court and to achieve this objective, I direct as under: The learned counsel for the parties shall cause appearance before the Sub-Judge (CJM) Srinagar on 27-04-2000 at 11 O™clock to advance the arguments. No adjournment shall be granted. No adjournment shall be granted. If the arguments are not concluded on the said date because of paucity of time or for any other reason beyond the control of the court the suit shall be repeated in the cause lists of next following working days and the arguments shall be concluded within ten days which period shall begin from 27-04-2000. The judgment shall be pronounced within fifteen days thereafter, to be reckoned from the date on which arguments in the case are concluded. Should the parties or any of them choose not to appear, the court shall pronounce the judgment on its merits. Compliance of the order to be reported to the Registrar Judicial of Srinagar wing of the court.� 8. No order as to costs. 9. At this stage Mr. B. A. Bashir l/c for the petitioner submitted that the court having refused to withdraw the suits from the lower court to try and dispose of the same here, he therefore contemplates to invoke a remedy against the order. In this view of the matter, I make a little change in the operative part. The date for appearance to be caused by learned counsel for the parties before the trial court shall now be 27th of May 2000 instead of 27th of April 2000. No other alternation.�