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2011 DIGILAW 790 (GAU)

Ratan Lal Nath v. Badal Chowdhury

2011-09-21

A.C.UPADHYAY

body2011
JUDGMENT A.C. Updhyay, J. 1. Heard Mr. D.R. Choudhury, learned Counsel appearing for the Petitioner. Also heard Mr. S. Talapatra, learned senior counsel together with Mr. N.C. Pal, learned Government Advocate appearing for the Respondent No. 1 and Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. R. Datta, learned Counsel representing the Respondent Nos. 2 and 3. 2. This petition has been filed by the Petitioner challenging the order dated 18.08.2011 passed by the learned Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala in M.S. No. 18/2005, whereby a cost of Rs. 2,000/- was imposed while allowing adjournment to the Defendants. 3. Considering the subject matter of the present revision petition and taking into account the facts and circumstances, leading to filing of this revision petition and also taking into view that all the Respondents have entered appearance through their respective counsel, I consider it appropriate to dispose of this revision petition at the motion stage with the consent of the learned Counsel representing the respective parties. 4. Title Suit No. 18 of 2005 was filed in the Court of learned Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala by the Plaintiff-respondent claiming compensation for publication of a defamatory news item. During trial, on 16.07.2011 the suit was fixed for recording evidence of the Plaintiff's witnesses. On that day, a prayer was made on behalf of the Plaintiff-respondent to adjourn the suit for recording evidence of the Plaintiff's witnesses and accordingly, the learned trial Court by allowing adjournment of the suit was fixed on 18.08.2011 for cross examination of the Plaintiff by the Defendant. On 18.08.2011, learned Counsel for the Petitioner-defendant No. 1 submitted a petition before the learned trial Court, stating therein that failure to collect some material documents has prevented him from cross-examining the Plaintiff and his witnesses and, accordingly, sought for an adjournment of the hearing. Similarly, the Defendant-respondent Nos. 2 and 3 also filed an application stating therein that the Advocate engaged on their behalf could not appear before the Court due to preoccupation and, therefore, prayed for adjournment of the suit. However, the learned court below upon consideration of the application submitted on behalf of the Petitioner-defendant No. 1 allowed the prayer for adjournment by imposing a cost of Rs. 2,000/-. The instant revision petition has been filed being aggrieved by the order aforesaid imposing cost for adjournment. 5. However, the learned court below upon consideration of the application submitted on behalf of the Petitioner-defendant No. 1 allowed the prayer for adjournment by imposing a cost of Rs. 2,000/-. The instant revision petition has been filed being aggrieved by the order aforesaid imposing cost for adjournment. 5. Learned Counsel for the Petitioner contended that the Petitioner-defendant No. 1 had to seek for an adjournment for reasons beyond his control since some documents could not be collected by the Petitioner-defendant No. 1 to effectively cross examine the Plaintiff's witnesses. Learned Counsel further contended that advance copy of the application was also served to the counsel for the Plaintiff a day ahead of the date fixed for recording testimony of the Plaintiff's witnesses and no objection was raised on behalf of the Plaintiff. 6. Mr. A.K. Bhowmik, learned senior counsel appearing for the Respondent Nos. 2 and 3 submitted that though absence of the counsel is not a good ground for seeking adjournment, however, the learned Trial Court did not consider the fact that the Defendant No. 1 had no opportunity to engage another counsel immediately thereafter to cross-examine the Plaintiff' witnesses. Therefore, the impugned order passed by the learned Trial Court is not inconformity with the provision of law. By referring to the provision of Sub-rule (2) (d) of Rule 1 of Order 17 of the Code of Civil Procedure, the learned Counsel pointed out that illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment, unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time. This aspect of the matter was not considered by the learned Trial Court at the time of the impugned order. 7. Mr. S. Talapatra, learned senior counsel appearing for the Plaintiff-respondent No. 1 submitted that the Plaintiff respondent No. 1 had to come with his witnesses on the date fixed for hearing since it was the third time on which the date for recording the evidence of the Plaintiff's witness has been fixed by the Court and the imposition of the cost is prerogative of the Court. 8. 8. Imposition of cost usually is a power and prerogative of the trial court and this power is exercised on an overall consideration of the facts and circumstances of a given case. 9. As a matter of fact, the revisional Court would not normally interfere with the discretion exercised by the Trial Court in this regard, unless the discretion is found to have been exercised without due regard to the relevant facts and circumstances of the case. In the present case, learned Counsel for the Petitioner could not cross-examine the witnesses due to failure of the Petitioner to find out some documents for cross-examination of the Plaintiff's witnesses. Notwithstanding the above facts revealed on behalf of the Petitioner-defendant, an adjournment cost of Rs. 2,000/- was imposed by the learned Trial Court without giving reasons for doing so. 10. Having regard to the facts and circumstances of the present case and upon perusal of the materials on record placed before this Court, I am of the considered view that, in the facts and circumstances of the present case, imposition of cost is not appropriate exercise of jurisdiction by the learned Trial Court since the materials on record are sufficient to show that the learned Counsel for the Petitioner could not cross-examine the Plaintiff's witnesses for the reasons beyond their control. 11. In view of the above, the present revision petition is allowed and the order dated 18.08.2011 passed by the learned Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala in M.S. No. 18/2005, in so far as it relates to the imposition of cost of Rs. 2,000/- is concerned, is hereby set aside. It is made clear that the learned trial court shall proceed with the trial of the suit, as per dates fixed for the purpose, in accordance with law. 12. With the above observations and directions, this revision petition stands disposed of. However, I pass no order as to costs.