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2013 DIGILAW 694 (MP)

Sukhdev Singh S/o Shri Succha Singh Gumman v. Shrimant Usharaje Saheb Holkar

2013-06-21

S.K.SETH

body2013
JUDGMENT : The plaintiffs are in appeal against the order dated 05.07.2012 passed by the 9th Additional District Judge, Indore whereby the court-below dismissed the suit Facts in brief are as under :- 2. Plaintiffs' filed a suit for specific performance based upon an agreement of sale of land situated in Village Pipliyarao, Tehsil and District Indore hardly 5 to 6 kilometers from the heart of city. 3. After service of summons respondents filed their written statement to contest the suit. Based upon the pleadings, trial court framed issues and posted the case for plaintiff's evidence on 09.09.2011. 4. From 09.09.2011 to 28.11.2011, four times plaintiffs sought adjournments and they were granted by the Trial Court. On 28.11.2011, the case was fixed for the cross-examination of the witness Sukhdev Singh. On the said date he was not present, therefore, an adjournment was sought and granted by the court and the case was fixed for 19.12.2011. On the said date respondent sought an adjournment, which was granted and the case was fixed for 04.01.2012. 5. On 04.01.2012, the cross-examination of witness Sukhdev Singh commenced but could not be completed, therefore, the case was fixed for 25.01.2012. On 25.01.2012; 10.02.2012; and 24.02.2012 the case was adjourned. On 24.02.2012 plaintiff sought an adjournment and the case was fixed for 20.03.2012. 6. On 20.03.2012, witness Sukhdev Singh was present but his cross-examination remained incomplete and the case was, therefore, adjourned to 29.03.2012. From 29.03.2012 till the impugned order dated 05.07.2012 was passed, in between on three occasions the case was fixed for plaintiff's evidence and it was adjourned because the plaintiff's witness was not present and usual mode of filing frivolous applications was resorted to seek adjournments by the plaintiff on one ground or another. Ultimately on 05.07.2012 the Court refused to grant further adjournments and dismissed the suit. 7. Against this order initially the appellant had filed petition under Section 227 of the Constitution of India, however, that was withdrawn. Thereafter, the present appeal under Section 96 of the CPC has been filed. Learned counsel for the appellant vehemently argued that the court could not have proceeded under Order 17 Rule 2 of the CPC. The best the court could do was to impose cost on the plaintiff and ask the defendant to adduce evidence. Thereafter, the present appeal under Section 96 of the CPC has been filed. Learned counsel for the appellant vehemently argued that the court could not have proceeded under Order 17 Rule 2 of the CPC. The best the court could do was to impose cost on the plaintiff and ask the defendant to adduce evidence. According to him, order 17 Rule 2 of the CPC does not give power to the court to dismiss the suit, therefore the appeal deserves to be allowed. Learned counsel has placed heavy reliance on the decision reported in Manupatra (MANU/SC/0673/2000). The judgment shows that it was not the case where their Lordships were dealing with provisions of Order 17 of the CPC. The case is of no help to appellants. 8. On the other hand learned counsel for the respondent submitted that regular appeal under Section 96 of the CPC is not maintainable against the order impugned. He submitted that 05.07.2012 was an adjourned date of hearing and on the said date neither the plaintiff nor his witness were present in the court, therefore, the court has rightly proceeded against the appellant under Order 17 Rule 2 of the CPC to dismiss the suit for want of prosecution. Hence Misc. Appeal would lie under Section 104 r/w Order 41 of the CPC. 9. Be that as it may, we have considered the case on merit. It is now settled that a litigant must get a reasonable opportunity to put forward his case. When he fails to do so and missed the opportunities, then Court would not come to the rescue of such litigant who treat it as a luxury under the impression that money is peneccia for every thing or delay. In the opinion of this Court, in the facts and circumstances of the case, the decision of the Supreme Court in the State Bank of India V/s. Km. Chandra Govindji reported in Manupatra is of no avail to the appellant. As is evident from the facts of the case in hand that the case had a circuitous journey from the date of inception. We find from the decision reported in 2011 AIR SCW 5789, on which reliance is placed by the learned counsel for the respondent, is applicable to the present case. As is evident from the facts of the case in hand that the case had a circuitous journey from the date of inception. We find from the decision reported in 2011 AIR SCW 5789, on which reliance is placed by the learned counsel for the respondent, is applicable to the present case. It has been laid down by their Lordships that after the recent amendment in the CPC ordinarily beyond three adjournments, the adjournment should be granted only for a justifiable cause i.e. to say sufficient cause based upon unavoidable and compelling necessity. In other words, their Lordships have deprecated the practice of endless adjournment on a mere asking. It is relevant to quote the following observations :- “No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII, Rule 1, CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII, Rule 1, CPC should be maintained. When we say 'justifiable cause' what we mean to say is, a cause which is not only 'sufficient cause' as contemplated in sub-rule (1) of Order XVII, CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on the way to the court and such like cause. The list is only illustrative and not exhaustive. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on the way to the court and such like cause. The list is only illustrative and not exhaustive. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere on or the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the court must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit – whether plaintiff or defendant – must co-operate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, no evidence was let in by the plaintiff, in our view, it deserved no sympathy in second appeal in exercise of power under Section 100, CPC. We find no justification at all for the High Court in upsetting the concurrent judgement of the courts below. The High Court was clearly in error in giving the plaintiff an opportunity to produce evidence when no justification for that course existed.” 10. There is another factor which needs mentioning. It is undisputed that appellants had applied for grant of temporary injunction. The application was rejected by the Trial Court and, therefore, the matter was carried to this court in miscellaneous appeal (MA No.1901/2011). There is another factor which needs mentioning. It is undisputed that appellants had applied for grant of temporary injunction. The application was rejected by the Trial Court and, therefore, the matter was carried to this court in miscellaneous appeal (MA No.1901/2011). The said appeal was decided on 09.09.2011 and this court while ordering the parties to maintain the status quo requested the trial court to expedite the disposal of the suit preferably within a period of one year. When faced with this situation in the opinion of this Court the court below had given more than adequate opportunities to appellants to put forward their case and there was no sufficient cause based upon unavoidable or compelling necessity which made to make adjournment inevitable so far as appellants are concerned. In view of the aforesaid facts and circumstances of the case, we find that there is no merit and substance in this appeal. Since we are dismissing the appeal on merit, we do not think necessary to decide the preliminary objections raised by the counsel for the respondent regarding the maintainability of this First Appeal. Appeal stands dismissed with costs through out.