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2001 DIGILAW 1115 (PNJ)

Krishan Chand v. Laj Wanti Wd/o Jagat Ram

2001-10-10

BAKHSHISH KAUR

body2001
JUDGMENT Bakhshish Kaur, J. - A suit for specific performance of the agreement filed by Krishan Chand-petitioner is pending before the trial Court since February 1997. Proceedings in the case have not been concluded till today. The short prayer made in this petition under Article 227 of the Constitution is that the Court be directed to expedite the matter. 2. 1 have heard Sh. Arvind Rajotia, learned counsel for the petitioner and I have gone through interlocutory orders passed from time to time by the trial court. 3. The adjournments granted by the Court appear to have been given totally in disregard to the provisions envisaged under Order 17 Rule 2 of the Code of Civil Procedure (in short the Code). Rule 1 of Order 17 empowers the Court to grant time and adjourn the hearing of the suit for reasons or be recorded in writing. Under Rule 2, again certain norms are required to be followed by court while adjourning the case and it reads as under "2. Costs of Agreement : In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment: Provided that, - (a) when the hearing of the suit has commenced, it 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, (b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of the party, (c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, (e) where a witness is present in Court but 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." 4. I need not refer to all the interlocutory orders passed in the file which have been reproduced in the grounds of revision. However, perusal of the same reveals that the Court has been very liberal in granting adjournments, that too without sufficient or cogent reasons. Some of the orders read as under : "13.6.2000 Present : Counsel for the parties. PWs Krishan Chand are present but counsel for defendant submits that he will be unable to cross examine the witnesses since he is to conduct a time bound case in the Court of Sh. M.S. Chauhan as well as he has filed revision against the order passed by the Court refusing to implead LRs of the deceased Jagat Ram. To come up on 22.8.2000 for the evidence of the plaintiff." "22.8.2000 Present : Counsel for the parties. PW Krishan Chand is present and his cross examination has been partly recorded. The Court time is over. Now, to come up on 14.9.2000 for further cross examination of this witness." "14.9.2000 Present : Counsel for the parties. PW Krishan Chand is present and his statement has been partly recorded due to overtime of the Court. Now, to come up on 30.10.2000 for further cross examination of the witness. " "5.12.2000 Present : Counsel for the parties. M. Krishan Chand is present and his cross examination has been partly recorded since the court time is over. Now, to come up on for further cross examination of the plaintiff. Plaintiff directed to appear on the next date of hearing at 10.00 AM (Sharp)." "2.2.2001 Present : Counsel for the plaintiff Proxy counsel for defendant. An application has been filed on behalf of the defendant to the effect that he is unable to attend the Court today. In view of the reason mentioned in the application and on the request of the proxy counsel, case stands adjourned to 12.3.2001 for cross examination of the plaintiff and other remaining evidence of the plaintiff be produced on the date fixed. In view of the reason mentioned in the application and on the request of the proxy counsel, case stands adjourned to 12.3.2001 for cross examination of the plaintiff and other remaining evidence of the plaintiff be produced on the date fixed. It has come to my notice that another application for directing the defendant No. 2 to give thumb impression is pending decision. Its reply be also filed on the date fixed." 5. The aforesaid orders, therefore, demonstrate the agony and or deal suffered by Kishan P.W. in particular and other witnesses who attended the Court on several days. 6. The procedure envisaged under Order 17 of the Code, therefore, requires that when the hearing of the suit has commenced, it has to be continued for day-to-day unless the court finds that for the exceptional reasons to be recorded, the adjournment of the case beyond the following day is necessary. If at all for certain reasons, cross-examination of Krishan Chand P.W. could not be concluded on the day when it had started, then the case should have been adjourned to the next following day or beyond the following day. But the long. adjournments spreading over months duration should have been avoided. Further, the reasons given for adjournments do not appear to be convincing. 7. It is well-settled that speedy trial is one of the facets of the fundamental right to life and liberty enshrined in Article 21 of the Constitution and the law must ensure reasonable, just and fair procedure which has a creative connotation. In Chander Bhan v. State of Haryana, 1996(1) Recent Criminal Reports 125 (P&H), it has been observed that, "The right to speedy and expeditious trial is one of the most valuable and cherished rights guaranteed under the Constitution. Fundamental rights were not a teasing illusion to be mocked at. These were meant to be enforced and made a reality." 8. In the given case in hand, P.W. Kishan Chand had been regularly coming to the Court from 13.6.2000, but till today his cross-examination has not been concluded. What a pity that the trial Court is engaged in adjourning the case again and again at long intervals sometimes to accommodate the counsel for the opposite party, sometimes on the ground that the Court time is over. Should the reasons recorded by Court in adjourning the case be termed as justifiable ? Certainly not. What a pity that the trial Court is engaged in adjourning the case again and again at long intervals sometimes to accommodate the counsel for the opposite party, sometimes on the ground that the Court time is over. Should the reasons recorded by Court in adjourning the case be termed as justifiable ? Certainly not. In fact, certain observations made be Honble Mr. Justice K.T. Thomas of the Supreme Court in State of U.P. v. Shambhu Nath Singh, 2001 AIR SCW 1335 aptly apply to this case, which read as under :- "Witnesses tremble on getting summons from Courts in India, not because they fear examination or cross-examination in Courts but because of the fear that they might not be examined at all for several days and on all such days they would be nailed to the precincts of the Courts awaiting their chance of being examined. The witnesses, per force, keep aside their avocation and go to the Courts and wait and wait for hours to be told at the end of the day to come again and wait and wait like that. This is the infelicitous scenario in many of the Courts in India so far as witnesses are concerned. It is high time that trial Courts should regard witnesses as guests invited (through summons) for helping such Courts with their testimony for reaching judicial findings. But the malady is that the predicament of the witnesses is worse than the litigants themselves........" "We make it abundantly clear that if a witness is present in Court he must be examined on that day. The Court must know that most of the witnesses could attend the Court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of Bhatta (allowance) which a witness may be paid by the Court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial Courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by presiding officers of the trial Courts and it can be reformed by every one provided the presiding officer concerned has a commitment to duty. This primitive practice must be reformed by presiding officers of the trial Courts and it can be reformed by every one provided the presiding officer concerned has a commitment to duty. No sadistic pleasure in seeing how other persons summoned by him as witnesses are stranded on account of the dimension of his judicial powers can be a persuading factor for granting such adjournments lavishly, that too in a casual manner." 9. In view of the aforesaid, in this case miscarriage of justice has taken place. The trial court is, therefore, directed to fix the case on such a date that the cross examination of the witness Krishan Chand is concluded and also expedite the case and dispose it of within one year from the next date fixed before it. 10. Copy of the order be given dasti on payment of usual charges. Petition allowed.