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2014 DIGILAW 152 (ORI)

Binodini Dash v. Kamalini Satpathy

2014-03-04

B.R.SARANGI

body2014
ORDER : 04.03.2014 – Heard Mr. Sanjeev Udgata, learned counsel for the petitioner. None appears for the opposite party, though notice has been made sufficient on her. However, counter affidavit filed by tile opposite party is available on record. This application has been filed assailing the order dated 16.1.2004 passed by the learned Civil Judge (Sr. Division), Bargarh in Title Suit No. 82 of 1997 under Annexure-2 refusing to adjourn the matter on the ground that the party has taken more than three adjournments during hearing of the suit and closed the evidence from the side of the plaintiff. Mr. Sanjeev Udgata, learned counsel for the petitioner states that the learned Court below referring to the provision of Order 7, Rule 1, CPC rejected the petition stating that no adjournment shall be granted more than three times during hearing of the suit. On perusal of Order 7, Rule 1, CPC there is no mention in the said provision fixing the limitation of adjournment, rather under Order 17, Rules 1 and 2, CPC which deals with adjournments more than three times, but if necessary except where the circumstances is beyond the control of the party, Court may grant further time. He has also relies upon a judgment of the apex Court in Bashir Ahmed v. Mehmood Hussain Shah, AIR 1995 SC 1857 where the apex Court has held that the Court should have adjourned the case to the next date as to enable defendant to have another counsel engaged and given instructions to the new counsel to proceed with cross-examination in the light of pleadings and issues raised. Considering the submission made by Mr. Sanjeev Udgata, learned counsel for the petitioner and after perusing the impugned order passed by the learned Court below referring to counter filed by opposite party in person it is found that the learned Court below has committed gross error apparent on the face of the record by not adjourning the matter for a day in view of the fact that the person whom the petitioner wants to examine, i.e., 'Patwari Manager Pradhan' was suffering from malaria fever and to substantiate his contention the petitioner has relied upon medical certificate issued by Susruta Seva Sadan, Bargarh. In the said medical certificate it reveals that the said witness was suffering from Malaria fever and therefore he could not attend the Court and in that view of the matter the plaintiff-petitioner sought for time to fix another date and on which date the witness can appear in the Court for examination and non-appearance of the witness on the date fixed was beyond his control. But the learned Court below without considering the materials available before him, refused to grant adjournment, thereby he has committed gross error apparent on the face of the record. Apart from the same, the law laid down by the apex Court in Bashir Ahmed (supra) that no adjournment shall be granted by the Court more than three times but if necessary except where the circumstances is beyond the control of the plaintiff, in that case Court should be liberal in granting adjournments. In the case in hand, when a person suffering from Malaria fever could not able to attend the Court on the basis of the medical report produced before the Court, in that case, the Court should have granted adjournment because it was beyond the control of the plaintiff in view of the proviso to Order 17, Rules 1 and 2, CPC. Therefore, the impugned order passed by the learned Court below is hereby set aside. The petitioner is directed to produce 'Patwari Manager Pradhan' before the Court below on 27.03.2014, on which date the learned Court below shall fix a date for examination of the witness by giving opportunity to the parties. Since the suit is of the year 1997, learned Court below is directed to dispose of the same as expeditiously as possible, preferably by end of November, 2014. Both the parties are directed to cooperate with the trial for early disposal of the suit. With the above observation and direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Petition disposed of.