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2013 DIGILAW 661 (GAU)

P. v. Sumant VS Jayanta Baruah

2013-09-09

A.K.GOSWAMI

body2013
JUDGMENT : A.K Goswami, J. Heard Mr.J.Deka, learned counsel for the petitioner. Also heard Mr. U B Sarma, learned counsel appearing for Respondents No.1 to 5. None appears for the Respondent No.6. 2. By this application, the petitioner calls into question the legality and validity of the order dated 27.8.2004 passed by the learned Civil Judge (Sr.Division) No.1, Kamrup, Guwahati in T.S.No.162/2003, whereby prayer for adjournment of cross-examination of PW1 and PW2 was rejected, thus closing their cross-examination. 3. The petitioner, as plaintiff, filed a suit for damages and compensation for defamation and permanent injunction against the present respondents no.1 to 5, who were defendants no. 1 to 5 in the suit. The suit was registered as T.S.No.162 of 2003. 4. By an order dated 8.3.2004, while rejecting the application of the defendants no.1 to 5 for granting time to file written statement, the learned trial court directed that the suit would proceed ex-parte against them and fixed 3.4.2004 for evidence of witnesses of the plaintiff on affidavit at a time. It appears that plaintiff prayed for time on 3.4.2004, 14.5.2004 and 25.6.2004 for filing the evidence on affidavit of his witnesses. By the order dated 25.6.2004, the learned trial court had again fixed 8.7.2004 for filing evidence of the witnesses of the plaintiff. 5. On 8.7.2004, the plaintiff filed the evidence on affidavit of three witnesses including the plaintiff himself as PW1. PW2, at the relevant point of time, was holding the post of Deputy Inspector General of Police, Northern Range and PW3 was a retired Additional Chief Engineer (PWD). The plaintiff himself was holding the post of Director General of Police, Assam at the time of filing the evidence on affidavit. The learned trial Court fixed 27.8.2004 for cross-examination of the witnesses of the plaintiff. On 27.8.2004, two petitions came to be filed by the plaintiff. By petition no. 2386/04, the plaintiff prayed for adjournment of his cross-examination. By petition no.2394/04, the plaintiff prayed for adjournment of cross-examination of PW-2. The PW3, though, was present. 6. As noted earlier, the learned trial Court rejected the said petitions and closed the cross-examination of PW1 and 2 with the observation that the consequence and effect of closure of their cross-examination on the evidence on affidavit would be considered in due course. The PW3, though, was present. 6. As noted earlier, the learned trial Court rejected the said petitions and closed the cross-examination of PW1 and 2 with the observation that the consequence and effect of closure of their cross-examination on the evidence on affidavit would be considered in due course. The order dated 27.8.2004 shows that though PW3 was partly cross-examined, subsequently, on the request of the learned counsel for the defendants, cross-examination was also deferred to the next date fixed. 7. Mr. J Deka, learned counsel for the petitioner submits that the learned trial court totally mis-directed itself in rejecting the petitions filed by the plaintiff on the mis-conceived notion that as 3 adjournments had already been granted to the plaintiff, no further adjournment could be granted to the plaintiff irrespective of the cause shown for adjournment. It is submitted by him that if circumstances are beyond the control of the party, it is always permissible for the trial Court to grant adjournment in spite of party already availing three adjournments earlier. It is submitted by him that petitioner had shown valid and sufficient cause for grant of adjournment and such prayer for adjournment was necessitated by reasons beyond the control of the petitioner. The learned counsel relies upon the decision of the Apex Court in Salem Advocate Bar Association, Tamilnadu v. Union of India, reported in AIR 2005 SC 3353 . 8. Mr. U B Sarma, learned counsel appearing on behalf of respondents no. 1 to 5, on the other hand, submits that the plaintiff was needlessly delaying the proceeding. In view of the provisions contained in Order 17, Rule 1 CPC, the learned trial Court rightly passed the impugned order and no interference with the said order is called for, he submits. 9. In the petition filed praying for grant of adjournment in respect of PW1, it was stated that the plaintiff had to go to Delhi on official Government assignment including some official meetings commencing from 25.8.2004 and that he would be returning only on 28.8.2004. That he was leaving for Delhi on 24.8.2004 had been communicated to his counsel by his letter dated 18.8.2004 which was received by the counsel on 23.8.2004. In the said petition, it was stated that his other two witnesses, namely, PW2 and PW3 would be present in the court to face cross-examination. 10. That he was leaving for Delhi on 24.8.2004 had been communicated to his counsel by his letter dated 18.8.2004 which was received by the counsel on 23.8.2004. In the said petition, it was stated that his other two witnesses, namely, PW2 and PW3 would be present in the court to face cross-examination. 10. It so transpires that another petition had to be filed praying for grant of adjournment for cross-examination of PW2. In the said petition it was stated that there was a bomb blast on 26.8.2004 at Tangla within the jurisdictional area of PW2 and he had to rush back to take control of the law and order situation. 11. The order dated 27.8.2004 reads as follows: "27.8.04 Both parties are present through ld. Advocates. By petition No.2386/04 under Order 18, Rule 3A R.W.Sec. 151 & 148 C.P.C. Plaintiff has prayed adjournment for cross examination of P.W.1 inter alia on the ground that PW1 who is D.G.P. is at Delhi to attend urgent official duty. Also by petition No.2394/04 plaintiff has prayed for adjournment for cross examination of P.W.2 inter alia on the ground that P.W.2 who is D.I.G.of police is at Tangla to attend law and order problem. P.W.3 R.N.Deka is present. Ld. counsel for plaintiff while praying for adjournment has relied on a decision reported in 1992 (2) GLR 450 in support of his prayers. Heard ld. counsel for plaintiff. He has submitted that cross examination of P.W.1 and P.W.2 may be adjourned and today P.W.3 may be cross examined. Ld. counsel for defendant has raised objection to the prayers of adjournment. He has submitted that plaintiff has already been granted three adjournments and further adjournment at the stage of hearing cannot be allowed in view of provision of Or.17 R.1 proviso and also that Order 18, Rule 3 (A) is not applicable at this stage. Plaintiff has already filed affidavit on evidence in chief for 3 P.Ws. after availing 3 adjournments. Hence considering all facts and circumstances in its entirety, prayer for adjournment of P.W.1 and P.W.2 is hereby rejected and they will not be allowed for further cross examination also. Consequence of their evidence in-chief will be decided in due course. P.W.3 is partly cross examined and deferred till next date as the ld. after availing 3 adjournments. Hence considering all facts and circumstances in its entirety, prayer for adjournment of P.W.1 and P.W.2 is hereby rejected and they will not be allowed for further cross examination also. Consequence of their evidence in-chief will be decided in due course. P.W.3 is partly cross examined and deferred till next date as the ld. counsel for defendant intends to cross examine in respect of some other news items published in different issue of News papers/ document. For clarification of those matters both parties will be heard. Fix 10.9.04 for hearing on this point." 12. Order 17, Rule 1 CPC, which deals with adjournments, provides that the court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time, adjourn the hearing of the suit for reasons to be recorded in writing. Proviso to Order 17, Rule 1 CPC, provides that no such adjournment shall be granted more than three times to a party during hearing of the suit. 13. Order 17, Rule 2 CPC deals with costs of adjournment. It states that in every such case the Court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by the adjournment or such higher costs as the Court deems fit. Proviso (b) to Order 17, Rule 2 CPC provides that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. 14. In Salem Advocate Bar Association (supra), the Apex Court in paragraph 31 laid down as follows: "31. While examining the scope of proviso to Order 17, Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to Order 17, Rule2 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 17, Rule 1 and Order 17, Rule 2 have to be read together. So read, Order 17 does not forbid grant of adjournment where the circumstances are beyond the control of the party. The proviso to Order 17, Rule 1 and Order 17, Rule 2 have to be read together. So read, Order 17 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 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 17, Rule 1 ." 15. From the ratio of the aforesaid judgment, it becomes clear that proviso to Order 17, Rule 1 and Order 17, Rule 2 have to be read together conjointly and if it is so read, Order 17 does not forbid grant of adjournment beyond three times when the circumstances are beyond the control of the party. In such a case, there is no restriction on number of adjournments that could be granted. The Apex Court made it explicitly clear that 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. 16. A perusal of the impugned order would go to show that the focus of the learned court below was only on the number of adjournments and not the cause shown in the petitions filed. The impugned order was passed wholly on the consideration that three adjournments were already granted to the plaintiff and therefore, one more adjournment could not be granted. 17. The PW1, i.e., the plaintiff had to go to Delhi on official duty. He was holding a very responsible post, namely, Director General of Police for the State of Assam. Official meetings were slated on 25.8.2004 and so he left for Delhi on 24.8.2004. That he would be going to Delhi for official engagements was also communicated by him to his counsel before he left for Delhi. He was holding a very responsible post, namely, Director General of Police for the State of Assam. Official meetings were slated on 25.8.2004 and so he left for Delhi on 24.8.2004. That he would be going to Delhi for official engagements was also communicated by him to his counsel before he left for Delhi. This would go to show that petitioner was taking active step in the matter. PW2 had to rush to Tangla in the wake of a bomb blast though he was earlier available for the purpose of his cross-examination. The event of bomb blast is an incident which could not have been foreseen. 18. What are circumstances beyond the control of a party would have to receive pragmatic consideration at the hands of the court. No doubt it cannot be fanciful. Adjournments are also not to be granted on mere asking. PW1 and PW2 were occupying very high position in hierarchy of the administration. All official duties involving the affairs of the State must take precedence. In that view of the matter, causes shown must be considered to be arising out of circumstances beyond the control of the plaintiff. For responding to the call of duty, the plaintiff cannot be penalised. 19. Taking that view, the impugned order is set aside. 20. Mr. U B Sarma, learned counsel for the defendants no.1 to 5 submits that parties may be directed to appear before the trial court on 4.11.2013 to receive further orders. Ordered accordingly. Registry will forthwith send back the LCRs.