Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 172 (MP)

Rajkumar Patel v. Shivraj Singh Chouhan

2009-02-05

R.C.MISHRA

body2009
ORDER 1. Heard on IA No. 2/2009, that has been moved for grant of adjournment on the ground that the petitioner is not medically fit to give evidence. In support thereof, a certificate, issued on behalf of Chirayu Health and Medicare (P) Ltd., Bhopal, to the effect that the petitioner is suffering from disc-prolapse has been filed. 2. Opposing the prayer vehemently, the learned Senior Counsel has submitted that it is yet another attempt to protract the election trial. According to him, he has credible information that the petitioner was seen roaming in Bhopal yesterday only. Placing reliance on a decision of the apex Court in Mohandas v. Ghisia Bai, AIR 2002 SC 2436 , he has emphatically contended that the petition deserves to be dismissed under Order XVII Rule 2 of the Civil Procedure Code (for brevity 'the Code'), in view of petitioner's failure to enter into the witness box even after obtaining a series of adjournments for the purpose during the period commencing from 10.9.2007. 3. In response, learned counsel for the petitioner has urged that the Proviso to Rule 1 of Order XVII of the Code, though inserted with a view to placing restriction on grant of more than three adjournments, has already been construed as directory in nature. He is further of the view that an adjournment should not be refused where the cause is beyond the control of the party. To buttress the contention, attention has been invited to the undermentioned observations made by the apex Court in Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344 . "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 adjournment 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. 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." 4. But, the fact of the matter is that by taking note of the guideline, this Court has already granted more than three adjournments to the petitioner for examining himself. Nevertheless, as explained in Salem Advocate Bar's case (supra), the question as to grant of further adjournment to the party, who has already been able to get hearing of the trial adjourned on three occasions, would always depend upon the facts and circumstances of each case. In other words, the process of judicial interpretation has not made the proviso totally redundant, otiose and nugatory. This view is fortified by a subsequent three Judge Bench decision of the Supreme Court in R.N. Jadi & Brothers v. Subhashchandra, (2007) 6 SCC 420 . The principle, as stated by P.K. Balasubramanyan, J. in the following words, though relating to Proviso to Order VIII Rule 1 is squarely applicable to the Proviso to Order XVII Rule 1 of the Code: "It would be proper to encourage the belief in litigants that the imperative of Order 8 Rule I must be adhered to and that only in rare and exceptional cases, will the breach thereof will be condoned. Such an approach by Courts alone can carry forward the legislative intent to avoiding delays or at least in curtailing the delays in the disposal of suits filed in Courts. The lament of Lord Denning in Allen v. Sir Alfred McAlpine & Sons, (1968) 2 QB 229 that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?" 5. It has not been seriously disputed that the provisions of Order XVII of the Code are applicable to an Election Petition. The law on the point is also well settled. Should that state of affairs continue for all times?" 5. It has not been seriously disputed that the provisions of Order XVII of the Code are applicable to an Election Petition. The law on the point is also well settled. For this, reference may be made to the decision of the apex Court in P. Nalla Thampy Thera, Dr. v. B.L. Shanker, AIR 1984 SC 135 . The relevant observations are reproduced as under: "It, therefore, follows that the Code is applicable in disposing of an election petition when the election petitioner does not appear or take steps to prosecute the election petition. Dismissal of an election petition for default of appearance of the petitioner under the provisions of either Order IX or Order XVII of the Code would, therefore, be valid and would not be open to challenge on the ground that these provisions providing for dismissal of the election petition for default do not apply." 6. Adverting to the merits of the prayer, it may be observed that the application of adjournment is not supported by affidavit of the petitioner or the treating doctor. It has also not been clarified as to whether the petitioner was admitted to the hospital for treatment. The name of author of the certificate is also not ascertainable and there is an apparent overwriting in the date of commencement of ailment. 7. This election petition was filed as early as on 26.6.2006 inter alia on the ground of corrupt practices. Although, the issues were framed on 13.11.2006 yet, for variety of reasons, the first date for recording of petitioner's evidence could be fixed on 10.9.2007. As indicated already, the trial had to be adjourned at his request on that day as well as on five subsequent days of hearing. This, in essence, has led to a ridiculous result as the evidence of the petitioner is yet to be recorded in this election trial whereas, in the meanwhile, a fresh election to the Legislative Assembly has already been held. 8. In the light of these facts and circumstances, on the previous date of hearing, last opportunity was given to the petitioner for the purpose. However, he has not been able to make out an extreme case for grant of further adjournment as contemplated in Salem Advocate Bar's case (supra). The I.A., therefore, stands rejected. 9. 8. In the light of these facts and circumstances, on the previous date of hearing, last opportunity was given to the petitioner for the purpose. However, he has not been able to make out an extreme case for grant of further adjournment as contemplated in Salem Advocate Bar's case (supra). The I.A., therefore, stands rejected. 9. Consequently, the election petition is dismissed, under Order XVII Rule 2 of the Code, for want of evidence. The petitioner shall bear his own cost as well as that of the respondent. 10. Copy of this order be sent to the Election Commissioner as well as to the Speaker of the State Legislature.