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Madhya Pradesh High Court · body

2006 DIGILAW 114 (MP)

NANHE KHAN v. GEETABAI

2006-01-19

N.K.MODY

body2006
Judgment ( 1. ) BEING aggrieved by the order dated 22-08-2005 in civil suit No. 21-A/2005 passed by Civil Judge, Class -I, Tarana whereby the applicants filed by the petitioner to cross examine the witnesses of the respondents No. 1 to 9 has been dismissed, the present writ petition is filed. ( 2. ) SHORT facts of the case are that respondents No. 1 to 9 filed civil suit for cancellation of sale-deed, declaration and permanent injunction against the petitioner and respondents No. 10 and 11. The suit was contested by petitioner on various grounds. After completion of the pleadings of parties, learned Court below framed issues and fixed the case for recording the evidence on 5-11-2004. On this date adjournment was sought and case was fixed for evidence on 3-1-2005. On this date also adjournment was sought on behalf of the counsel for petitioner and case was adjourned to 27-1-2005. On this date also adjournment was sought and case was adjourned to 25-2-2005 subject to payment of cost of rs. 35/ -. Again adjournment was sought on account of sickness of Counsel of the petitioner and case was adjourned to 18-3-2005. On this date Mr. G. K. Baheti was appointed as Commissioner to record the statement of witnesses of the respondents No. 1 to 9. Mr. G. K. Baheti fixed the case on 24-3-2005 for recording the evidence. On this date, witnesses were present and case was fixed at 11. 15 AM but the petitioner or his Counsel did not appear, therefore, commissioner adjourned the case at 2. 30 PM but at that time also petitioner or his Counsel was not present, therefore, Commissioner closed the right of the petitioner to cross-examine the witnesses. Thereafter, at 3. 30 PM an application was filed on behalf of the petitioner on the ground that advocate was to come from Ujjain to cross-examine the witnesses of the respondents who came in time but was seeking instructions from the local lawyer, therefore, could not appear when the case was called. Since, evidence was closed by the Commissioner at 2. 30 PM itself, therefore, the matter was referred by the Commissioner to the learned Court below where petitioner moved application for seeking permission to cross examine of the witnesses. By the impugned order dated 22-8-2005 the learned Court below dismissed the application, being aggrieved by this, the present petition has been filed. ( 3. 30 PM itself, therefore, the matter was referred by the Commissioner to the learned Court below where petitioner moved application for seeking permission to cross examine of the witnesses. By the impugned order dated 22-8-2005 the learned Court below dismissed the application, being aggrieved by this, the present petition has been filed. ( 3. ) LEARNED Counsel for the petitioner submits that the Commissioner was appointed and the case was fixed before the Commissioner first time on 24-3-2005. On this date, advocate who was engaged from Ujjain who came to tarana on the fixed date to cross examine the witnesses who could not appear. before the Commissioner at 11. 00 AM or 2. 30 PM when the case was called. Learned Counsel submits that this fact is evident from the fact that application was moved on that very day at 3. 30 PM. It is further submitted that strict principle of three adjournments should not be applied in each and every case and other facts should also be taken into consideration to determine the bonafides. Learned Counsel for the petitioner placed reliance on a decision in the matter of Salem Advocate Bar Association Vs. Union of India, reported in 2005 AIR SCW 3827, wherein Honble Apex Court has examined provision of order XVII Rule 1 of CPC as inserted by amendment Act of 1999. In this case honble Apex Court has observed as under:- 31. While examining the scope of proviso to Order XVII, Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to Order XVII, Rule 2 incorporating clauses (a) to (e) by Act 104 of 1976 has been retained. Clause (b)stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The proviso to Order XVII, Rule 1 and Order XVII, rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. In such a case, there is no restriction on number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments as provided in proviso to Order XVII, Rule 1. 32. In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, devastation on account of Tsunami ). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted. Ordinarily, where the costs or higher costs are awarded, the same should be realistic and as far as possible actual cost that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable but is being granted on account of either negligence or causal approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save proviso to Order XVII, Rule 1 from the vice of article 14 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases noted above. The limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party. The limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party. Even in cases which may not strictly within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the Court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. We may, however, add that grant of any adjournment let alone first, second or third adjournment is not a right of a party. The grant of adjournment by a Court has to be on a party showing special and extraordinary circumstances. It cannot be in routine. While considering prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments. ( 4. ) MR. Mukesh Parwal learned Counsel for respondents No. 1 to 9 submit that the conduct of petitioner is to delay the matter and number of adjournments were sought. It is submitted that on the ground of more than three adjournments learned Court below has rightly closed the right of petitioner. ( 5. ) FROM perusal of the record, it is evident that three adjournments were given to the petitioner from time to time. However, since the date was fixed for cross-examination before the Commissioner for the first time on 24-3-2005 and the lawyer of the petitioner came from Ujjain to cross-examine the witnesses and the application was filed on that very day for permitting the petitioner to cross-examine the witnesses after closing of his right to cross-examine shows that there was no malafides on the part of the petitioner. The proviso inserted under Order XVII Rule 1 of CPC puts a rider to check the litigant from seeking unwanted adjournments. It does not mean that if three adjournments had been given on earlier occasions then the Court is powerless to grant any further adjournments, even if there is a bonafide reason. It is not the Army Rule that after three adjournments, Trial Court is helpless. The Court has to judge the genuineness on the ground of which the adjournments is sought. The Court can compensate the other party by imposing punitive cost also. It is not the Army Rule that after three adjournments, Trial Court is helpless. The Court has to judge the genuineness on the ground of which the adjournments is sought. The Court can compensate the other party by imposing punitive cost also. In the circumstances and in the interest of justice it is the fit case in which permission to cross-examination ought to have been given in the circumstances the petition is allowed and one more opportunity is granted to the petitioner to cross examine the witnesses subject to payment of cost of Rs. 500/ -. Parties are directed to remain present before the learned Court below on 10-2-2006. On this date, learned Court below shall fix a date for recording of evidence before the Commissioner and the case shall be concluded by the learned Court below within a period of six months. No delaying tactice shall be adopted by the petitioner. ( 6. ) WITH the aforesaid observations, petition stands disposed of. CC as per rules.