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2008 DIGILAW 96 (CAL)

Rameswar Roy v. Moly Sarkar

2008-01-22

BISWANATH SOMADDER

body2008
Judgment (1) THE Judgment of the Court was as follows: heard the learned advocates appearing on behalf of the parties. (2) THIS is an application under Article 227 of the Constitution of India directed against an order, being Order No. 153 dated 11th January, 2007, passed by the learned Civil Judge, (Junior Division) at Siliguri in Title Suit. No. 108 of 2000, rejecting the application of the defendant, being the petitioner herein praying for adjournment. The impugned order reads as follows: - today is fixed for evidence of rest of DWs. Learned Advocate of both sides are present. No witness is present on behalf of the defendant. At this stage an application has been filed on behalf of the defendant with the submission that the defendant filed Revisional application before honble High Court and till hearing of the said application the defendant is not in a position to adduce any further DWs. A letter of learned Advocate also has been annexed with this application. But from this application and also from the letter of learned Advocate it reflects that there is no stay order passed by Honble High Court, Calcutta in the present case and accordingly I find no bar to proceed with the instant suit. More over from the materials on record it reflects that already sufficient time has been allowed to the defendant for filing stay order, if any, of Honble High Court; but no such stay order has yet been filed by the defendant. Another application has been filed by the defendant with the prayer of time for further DWs on the ground that the defendant is seriously ill; but no medical document has been attached with this application. More over the said two applications filed on behalf of the defendants shows, that the said two applications has been filed on behalf of the defendant with the prayer of time on two separate grounds. Considering all aspects I find that these two applications filed on behalf of the defendant only to drag the matter. Hence the said two applications stands rejected. Let the evidence of DWs be closed. Fix 20-01-2007 for hearing of argument. Both parties are directed to come ready on the date fixed". Considering all aspects I find that these two applications filed on behalf of the defendant only to drag the matter. Hence the said two applications stands rejected. Let the evidence of DWs be closed. Fix 20-01-2007 for hearing of argument. Both parties are directed to come ready on the date fixed". (3) LEARNED advocate appearing on behalf of the defendant/petitioner submits that in the facts and circumstances of the instant case, learned Court below ought to have granted adjournment and evidence of the defendants witnesses should not have been closed. In this regard, the learned advocate for the defendant/petitioner refers to two judgments in the case of Sultan Saleh bin Omer v. Vijayachand Sirimal reported in AIR 1966 Andhra Pradesh 295 and in the case of Ramesh Chandra and Ors. v. Rameshwardayal reported in air 1987 Madhya Pradesh 110 (Gwalior Bench). He also draws my attention to Article 39a of the Constitution of India and proviso (b) of Order XVII Rule 2 of the Code of Civil Procedure. (4) AFTER considering the submissions made by the learned advocates appearing on behalf of the parties and upon perusing the application and the orders passed by the learned Court below leading to the impugned order dated 11.01.2007, I am of the opinion that in the facts and circumstances of instant case it will appear from a plain reading of the impugned order set out hereinbefore, that the learned Court below had not erred in law in passing the said order dated 11.01.2007. It appears from records that the defendant no. 1 was seeking adjournments before the learned Court below since August 2006. From the copy of the order sheet produced before me by the learned advocate appearing on behalf of the opposite parties herein, it appears further that time after time adjournments were sought for on behalf of the defendant no. 1 before the learned Court below which culminated in the order impugned. (5) THE very purpose of amendment of the Civil Procedure Code was necessitated by the legislature taking note of the fact that procedural delays and delays caused by the parties seeking unnecessary adjournments before the Court where a suit was pending, more often than not caused grave miscarriage of justice and such delays often became fatal and defeated the purpose of institution of the original proceeding itself. (6) IN my view, for reasons stated above, the learned Court below had quite rightly, in the fact and circumstances of the instant case proceeded to pass the order impugned. The reference to the two judgments by the learned advocate appearing on behalf of the defendant No. 1/petitioner are not relevant in the facts and circumstances of the instant case in view of the reasons discussed above. For the same reasons, reference to Article 39a of the constitution of India as well as proviso (b) of Order XVII Rule 2 of the Code of Civil Procedure, in my view, is wholly out of context, taking note of the fact situation emanating from, the order impugned. (7) THE revisional application thus fails and the same is hereby dismissed. Interim order passed earlier shall stand vacated. (8) THE learned Court below is directed to proceed as expeditiously as possible with the Title Suit No. 108 of 2000, without granting unnecessary adjournments to the parties. Urgent Xerox certified copy of this order, if applied for, be given to the parties. Revisional application dismissed.