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Madhya Pradesh High Court · body

2009 DIGILAW 1336 (MP)

Vijay Narayan Shrivastava v. Ramswaroop Singh

2009-12-01

S.K.GANGELE

body2009
Judgment ( 1. ) Heard Plaintiff-appellant has filed this appeal under section 96, CPC against the judgment and decree dated 30/1/2003 passed in Civil Suit No. 16-A/2002 by XII Additional District Judge, (Fast Track Court) Gwalior. ( 2. ) Plaintiff filed a suit for declaration, recovery of possession and permanent injunction. He pleaded that he is owner of a Patore along with open land, having an area of 1500 sq. feet, situated at village Jaderua Kalan, Morar, Tahsil and District Gwalior, Ward No. 24. He further pleaded that respondent No. 2 sold the aforesaid land in favour of plaintiff vide registered sale-deed dated 11.6.1999. He further pleaded that defendant No. 1 filed a suit against defendants No. 2 to 5 for declaration and permanent injunction. The aforesaid suit was registered as Civil Suit No. 5 A/97. Defendant No. 2 and 3 did not appear before the Court and Court proceeded exparte against them. Defendant No. 4 and 5 appeared before the Court, however, they did not disclose the fact that the suit land had been sold vide registered sale-deed dated 4.7.1997 in favour of defendant No.2 and, thereafter, the Court passed the judgment and decree on 24.12.1998. The plaintiff came to know about the aforesaid fact on 24.12.1998, hence he filed the present suit for declaring the judgments and decree as void. He further pleaded that the plaintiff is also entitled to receive possession of the suit property. ( 3. ) The defendant No. 1 denied the pleadings of the plaint. Defendant No. 2 admitted the fact that the plaintiff is owner of a land having area 30 feet x 50 feet however, defendant No. 2 further pleaded that the suit land is of the ownership of defendant No. 1. Defendants No. 4 and 5 denied the pleadings and opposed the claim. ( 4. ) The trial Court framed issues and thereafter the case was listed for evidence on 21/11/2002. On the aforesaid date the counsel for plaintiff prayed time for evidence. The case was again listed for evidence on 11/12/2002. On the aforesaid date the counsel for defendants took time.Then, the case was listed on 3/1/2003. Plaintiff had already filed affidavits of his witnesses. On 3/1/2003 the learned counsel for defendant No. 1, Mr. J.P. Mishra, Advocate, requested the Court for time to cross-examine the witnesses of the plaintiff. Hence, the case was listed on 4/1/2003. On the aforesaid date the counsel for defendants took time.Then, the case was listed on 3/1/2003. Plaintiff had already filed affidavits of his witnesses. On 3/1/2003 the learned counsel for defendant No. 1, Mr. J.P. Mishra, Advocate, requested the Court for time to cross-examine the witnesses of the plaintiff. Hence, the case was listed on 4/1/2003. On the aforesaid date witness of the plaintiff, Ashok Shrivastava, was present. However, counsel for defendant No.1 requested the Court that he would like to examine first the plaintiff. The plaintiff was not present before the Court. Hence the case was listed on 9/1/2003. On the aforesaid date, the plaintiff was not present and a medical certificate was filed on behalf of plaintiff. Hence, the case was listed on 30.1.2003 for evidence. On the aforesaid date the plaintiff and his witnesses were not present, therefore, the Court proceeded exparte and dismissed the suit. ( 5. ) From the facts of the case, it is clear that earlier on 9.1.2003 the plaintiff was not present befoer the Court and a medical certificate was filed on behalf of plaintiff for condoning the absence. Thereafter, the case was listed on 30.1.2003 and on the aforesaid date the plaintiff and his witnesses were not present, hence the Court proceeded exparte and dismissed the suit ( 6. ) Honble the Supreme Court in Salen Advocate Bar Association v. Union of India, 2006 (1) JLJ 135 =2005 AIR SCW 3827, has held as under, with regard to grant of opportunity to lead evidence :- "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 party, except where the circumstances are beyond the control of that party. The proviso to Order XVII, Rule 11 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. The proviso to Order XVII, Rule 11 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. There maybe cases beyond the control of a party despite the party having obained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment devastation. It cannot be said that though circumstnaces 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, Gujrat 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 costs 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 casual 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 gratned 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 adjorunment is not a right of a party. The grant of adjournment by a Court has to be on a party showing special and extra ordinary 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." ( 7. ) Looking to the above principle of law laid down by Honble the Supreme Court and the facts of the case and the fact that plaintiffhas specifically pleaded that the defendants obtained a decree with regard to ownership of the land of the plaintiffby playing a fraud, in such circumstances, in my opinion, the order of the trial Court proceeding exparte against the plaintiff is illegal. However, in the interest of justice, it would be just and proper to award a cost in favour of defendant of Rs. 5,000/- (Rupees Five thousand only). ( 8. ) Consequently, the appeal filed by the appellant is hereby allowed. The judgment and decree passed by the trial Court is hereby set aside. The matter is remanded back to the trial Court to give an opportunity to the plaintiff on payment of cost to produce evidence. It is hereby clarified that if on one day the plaintiff- appellant, due to certain circumstances, could not produce his witnesses then another date be given by the trial Court. However, no subsequent adjournment could be given for this purpose. The plaintiff-appellant is directed to pay cost of Rs. 5,000.00 (Ruppes Five Thousand only) to the contesting defendants.