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2003 DIGILAW 309 (HP)

ASHOK K. GOEL v. VENU BAKSHI

2003-10-17

M.R.VERMA

body2003
JUDGMJENT M.R. Verma, J. :- This is meant to dispose of the aforesaid applications i.e. OMP No. 202 of 2003 under Order 14 Rule 5 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) for framing additional issues moved by the plaintiff and OMP No. 233 of 2003 under Section 151 of the Code of bringing on record, certain document, namely, the ticket for outdoor patient issued from the IGMC Shimla and Associated Hospitals Shimla in the name of the plaintiff and the question whether the plaintiff having already availed of more than three opportunities to appear-as his own witness and having failed to so appear on 10.6.2003 can he be given, further adjournment for appearing as his own witness in view of the provisions of Proviso to Rule 1 of Order 17 of the Code. 2. The material facts relevant for the purpose of disposal of the aforesaid applications and the question are that the suit of the plaintiff for specific performance and for permanent perpetual prohibitory injunction is pending in this Court. The plaintiff was to appear as his own witness on 10.6.2003. However, the plaintiff failed to appear on 10.6.2003. The learned Counsel foe- the plaintiff prayed for an adjournment on the ground that the plaintiff was ill and produced an OPD slip issued from IGMC Shimla. The question, however, arose as to whether having availed more than three opportunities to lead his evidence can further adjournment be granted for recording the statement of the plaintiff in view of the provisions of Order 17 Rule 1 of the Code. After this question had arisen and the parties were to be heard on this question, application (OMP No. 202 of 2003) was moved on behalf of t he plaintiff for framing additional issues and another application (OMP No. 233 of 2003) was moved for bringing on record the document i.e. the OPD Slip dated 10.6.2003 issued by the IGMC Shimla regarding illness of the plaintiff. 3. The defendant contested OMP No. 202 of 2003 and filed reply thereto. However, no reply was filed to OMP No. 233 of 2003. 4. I have heard the learned Counsel for the parties on the aforesaid applications and the question. 3. The defendant contested OMP No. 202 of 2003 and filed reply thereto. However, no reply was filed to OMP No. 233 of 2003. 4. I have heard the learned Counsel for the parties on the aforesaid applications and the question. OMP No. 202 of 2003: It was contended for the applicant/plaintiff that complete issues which arose out of the pleadings of the parties have unfortunately -not been framed, therefore, the additional issues are required to be framed whereas it was contended for the defendant that all material issues which arose out of the pleadings of the parties and which were proposed to be framed by the counsel representing the parties have been framed and the issues already framed embrace all the material questions in controversy between the parties on the basis of their pleadings and that the application is a mere device to somehow or the other get opportunity to the plaintiff to lead additional evidence and thus enable the plaintiff to appear as his own witness. 5. The plaintiff, who is represented by not less than three counsel has filed the application for-framing of additional issues, claiming that as many as four issues, as mentioned in the application arise out of the counter claim and written statement thereto have not been framed. The claim is utterly incorrect and baseless. Issues in the case were framed on 14.10.1999 in the presence of the learned Counsel for the parties. The proposal issues (i) to (iv) mentioning in para-2 of the application which according to the plaintiff arise out of the pleadings of the parties but had not been framed in fact have already been framed vide issue Nos. 10 to 13 which concerns the same controversy/objections on the basis of which the additional issues are proposed to be framed. The application is, therefore, unwarranted and frivolous. It cannot be assumed that the plaintiff or his counsel were not aware of the issues already framed particularly when the case is at the stage of evidence. A strict view of filing such application has to be taken so that unnecessary, uncalled for and frivolous applications are not filed by a party to the suit. It cannot be assumed that the plaintiff or his counsel were not aware of the issues already framed particularly when the case is at the stage of evidence. A strict view of filing such application has to be taken so that unnecessary, uncalled for and frivolous applications are not filed by a party to the suit. In the given circumstances of the case, OMP No. 202 of 2003 deserves to be dismissed with costs and is accordingly dismissed with costs assessed in the sum of Rs.500/- to be paid by the plaintiff to the defendant on or before the next date which may be fixed in the suit. OMP No. 233 of 2003: 6. By this application, the plaintiff wants to bring on record the OPD slip to show that on 10.6.2003 when he was to appear as his own witness he was ill and was in the Hospital, therefore, could not put in appearance. This application is not seriously opposed. Consideration of such a document to substantiate the submission of the plaintiff appears to be necessary in the interest of justice. This application is, therefore, allowed and the OPD slip Annexure A-1 is ordered to be taken on record. Application is accordingly disposed of. 7. Regarding question of adjournment and the effect of the provisions of Proviso Rule 1 of Order 17 of the Code it was contended by the learned Counsel for the plaintiff that the absence of the plaintiff on due date was not intentional but because of illness and was thus beyond his control and that he was in fact ill and in the Hospital is the fact borne by undisputed contents of the OPD slip Annexure A-1. 8. A perusal of the undisputed contents of the OPD Slip shows that it was issued to the plaintiff on his medical examination on 10.6.2003 i.e. the date when he was to appear as his own witness. The slip indicates that on 10.6.2003 the plaintiff had right lower abdominal pain since 4 a.m., he had vomited once and had also loose motions and was prescribed rest for three days. Evidently, because of the ailment the plaintiff was suffering from, he had to rush to the Hospital on the due date. Therefore, his non-appearance in the Court was beyond his control. Evidently, because of the ailment the plaintiff was suffering from, he had to rush to the Hospital on the due date. Therefore, his non-appearance in the Court was beyond his control. It is, thus, indisputably shown that absence of the applicant/plaintiff on due date was not intentional, deliberate or mala fide but because of his illness. . 9. Now, the question arises whether in view of Proviso to Rule 1 of Order 17 of the Code can a person who has availed of three adjournments be permitted to have further adjournment for the same purpose in the same suit. The proviso limits the number of adjournments in a suit to three. However, rules of procedures are meant to enable doing justice, therefore, must be applied in an enabling manner where the needs of justice so require. A situation may arise when a party has the last opportunity to do some act for further prosecution of its case pending in the Court but on that day he is prevented by a cause beyond his control from doing the needful. In such a situation the question whether they should be debarred from doing such act though he could not do it in the circumstances beyond his control necessarily arises for determination. The common sense, natural justice, equity, good conscious and interest of justice require that when a party is prevented to do something because of the circumstances beyond its control, it must be afforded an opportunity to do the needful so that the needs of justice are served. It is for this reason that the Code preserves the inherent powers of the Court under Section 151 to pass appropriate orders in such eventualities. 10. It follows that in the case in hand where the plaintiff could not put in appearance as his own witness on 10.6.2003 because of illness i.e. a circumstance beyond his control he must be given one more opportunity in the interest of justice to appear as his own witness by invoking the inherent powers by this Court. 11. As result, the plaintiff/applicant is permitted to have one more opportunity to appear as his own witness.