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2014 DIGILAW 51 (CHH)

Kartikram v. Itwari Bai

2014-02-07

SANJAY K.AGRAWAL

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JUDGMENT Sanjay K. Agrawal, J. 1. The substantial question of law involved and to be answered in this appeal is:- Whether the lower appellate Court failed to see that the wrong exercise of discretion for rejecting the application under Order 17 Rule 1 of the Code of Civil Procedure interfered with the valuable right of the appellants to lead evidence in support of their case and causing consequent dismissal of the suit under Order 17 Rule 3 of the Code of Civil Procedure? The imperative facts, in nutshell, required to answer the substantial question of law are as under:- [For sake of convenience, parties shall be referred as per their status shown in the plaint] (1.1.) That, the plaintiffs filed a suit for declaration of title and permanent injunction stating inter alia that they are title holder of the scheduled suit property. They further pleaded that defendant No. 1 is not the legally wedded wife of Holsai and defendant No. 2 is not the legitimate son of Holsai. (1.2.) The defendants No. 1 & 2 contested the suit and the matter was posted for plaintiffs' evidence on 16.7.1992, but on that day at the request of plaintiff's counsel, the matter was adjourned on 29.8.1992. On 29.8.1992 plaintiff No. 1 Kartikram and his witness Sukhiram was present but as the defendants' counsel Shri Dewangan was ill, the matter was adjourned for 12.11.1992. On that day also, plaintiff No. 1 and his witness was again present but as the Presiding Officer remained busy in recording evidence in some other criminal case, the matter was fixed for 5.1.1993. On 5.1.1993 plaintiff No. 1 Kartik Ram himself was present but the matter was adjourned for 31.3.1993. On 31.3.1993 plaintiff No. 1 present was present but his witnesses were not present, and, therefore the matter was adjourned 5.5.1993. On 5.5.1993, plaintiff No. 1 - Kartik Ram was present but other witnesses were not present and, therefore, the matter was fixed for evidence on 13.7.1993. (1.3.) On 13.7.1993, the application under Order 17 Rule 1 of the CPC was filed on behalf of the plaintiffs stating inter alia that plaintiffs' witnesses were busy in performing agriculture operation and the plaintiff Kartik Ram is unwell, therefore, the case be adjourned for some other date. 2. (1.3.) On 13.7.1993, the application under Order 17 Rule 1 of the CPC was filed on behalf of the plaintiffs stating inter alia that plaintiffs' witnesses were busy in performing agriculture operation and the plaintiff Kartik Ram is unwell, therefore, the case be adjourned for some other date. 2. The trial Court, by its order dated 13.7.1993 recorded a finding that earlier occasion, time was granted to the plaintiff No. 1-Kartik Ram to adduce his evidence but he failed to adduce evidence and, therefore, no sufficient cause is shown for granting application under Order 17 Rule 1 of CPC and the application for adjournment was rejected and plaintiff's opportunity to lead evidence was closed and the suit was dismissed for want of evidence. 3. Challenging the legal acceptability and correctness of the judgment/order dated 13.7.1993, plaintiffs herein filed first appeal under Section 96 of the Code of Civil Procedure, 1908 before the first Appellate Court. 4. The First Appellate Court, by its impugned judgment & decree dated 28.8.1995, dismissed the appeal filed by the plaintiffs holding that there is no illegality in the order/judgment dated 13.7.1993 passed by the trial Court. 5. Mr. Bhaskar Pyasi, learned counsel appearing for the appellants would submit that judgment & decree passed by the trial Court rejecting the plaintiffs' application under Order 17 Rule 1 of CPC and, thereby dismissing the suit of the plaintiff for want of evidence not sustainable in law and deserves to be set aside. He would further submit that the first appellate Court has also committed illegality in affirming the order/judgment of the trial Court. 6. Despite service of notice, no one has appeared on behalf of the defendants No. 1 & 2 at the time of hearing to support the impugned judgment. 7. I have heard learned counsel appearing for the parties and perused the records of both the courts below including order impugned. 8. The trial Court by its order dated 13.7.1993 dismissed the suit for want of evidence by recording following findings:- 9. 7. I have heard learned counsel appearing for the parties and perused the records of both the courts below including order impugned. 8. The trial Court by its order dated 13.7.1993 dismissed the suit for want of evidence by recording following findings:- 9. From the order of the trial court, it appears that the trial Court has recorded a finding the earlier opportunities were granted to the plaintiff No. 1-Kartik Ram to adduce evidence but he failed to get his evidence recorded and, thereby the reasons assigned in the application under Order 17 Rule 1 of CPC are not satisfactory and sufficient to grant adjournment and, therefore, the trial Court rejected the application and proceeded further to dismiss the suit for want of evidence. 10. A perusal of the order sheets of the trial Court would show that on 29.8.1992 plaintiff Kartik Ram and his witness namely Sukhiram was present before the court for giving evidence but the counsel appearing for the defendants Mr. Dewangan was unwell and, therefore, the matter was adjourned subject to payment of cost of Rs. 30/-. Again on 9.10.1992, plaintiff No. 1 Kartik Ram himself was present before the Court but his evidence could not be recorded as other witnesses were not present. On 12.11.1992 again plaintiff No. 1 Kartik Ram and his witness Sukhi Ram both were present for recording their evidence but as on the said date the Presiding Officer remained busy in recording evidence for some other criminal case, evidence of plaintiff No. 1 and his witnesses could not be recorded. On 5.11.1993 plaintiff No. 1 Kartik Ram was present and again on 5.5.1993 plaintiff-Kartik Ram was present but his witness is not present for recording evidence. On 13.7.1993, plaintiff No. 1 Kartik Ram moved an application under Order 17 Rule 1 of CPC praying for adjournment. Para 2 of the said application read as under:- 11. A bare perusal of the afore-stated application would show that plaintiff-Kartikram has clearly stated that other witnesses of the plaintiffs are busy in agriculture work and the plaintiff is unwell, therefore, other date of evidence be fixed. Absence of plaintiff's witnesses is quite natural as they are villagers and they are busy in agriculture work in the month of July. Plaintiff and his witness Sukhi Ram remained present twice before the Court but their evidence could not be recorded for one or the other reason. Absence of plaintiff's witnesses is quite natural as they are villagers and they are busy in agriculture work in the month of July. Plaintiff and his witness Sukhi Ram remained present twice before the Court but their evidence could not be recorded for one or the other reason. From the order sheet of the trial Court, it appears that he used to appear regularly right from the date of the institution of the suit i.e. on 21.12.1990 except one or two occasions. Therefore, the trial is absolutely unjustified in dismissing the plaintiffs' application filed under Order 17 Rule 1 of CPC, inasmuch as, sufficient cause was shown by the plaintiff for adjourning the matter on 13.7.1993 and committed illegality in dismissing the suit for want of evidence. 12. The question that falls for Consideration is whether earlier adjournments, if any, granted by the court should be taken into consideration by the Court while examining the sufficiency of cause in an application under Order 17 Rule 1 of the CPC on the subsequent occasions. 13. The Supreme Court in case of State Bank of India Vs. Chandra Govindji (KM.) (2000) 8 SCC 532 has considered and held as under:-- 7. In ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournment, if any, granted would certainly be for reasonable grounds and that aspect need not be once again examined if on the date on which adjournment is sought for the party concerned has a reasonable ground. The mere fact that in the past adjournments had been sought for would not be of any materiality. If the adjournment had been sought for on flimsy grounds the same would have been rejected. Therefore, in our view, the High Court as well as the learned District Judge and the Rent Controller have all missed the essence of the matter. 14. Likewise, the Supreme Court in case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India AIR 2005 SC 3353 has held as under:- 31. While examining the scope, of proviso to Order XVII, Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to Order XVII, Rule 2 incorporating clauses (a) to (e) by Act 104 of 1976 has been retained. Union of India AIR 2005 SC 3353 has held as under:- 31. While examining the scope, of proviso to Order XVII, Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to Order XVII, Rule 2 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 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 not restriction on number of adjournments to be granted. It can not 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 XVII, Rule 1. 32. In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, devastation on account of Tsunami). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted. Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted. Ordinarily, where the costs or higher costs are awarded, the same should be realistic and as far as possible actual cost that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable but is being granted on account of either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save proviso to Order XVII, Rule 1 from the vice of Article 14 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases noted above. The limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party. Even in cases which may not strictly within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the Court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference 4 to peculiar facts of a case. We may, however, add that grant of any adjournment let alone first, second or third adjournment is not a right of a party. The grant of adjournment by a court has to be on a party showing special and extraordinary circumstances. It cannot be in routine. While considering prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments. 15. Thus having ascertained the legal position keeping in mind, the principles laid down by the Supreme Court, it cannot be held that the trial Court is justified in refusing adjournment and in rejecting the plaintiff's application filed under Order 17 Rule 1 of CPC by considering and taking the earlier adjournments granted to the plaintiff while considering the sufficiency of cause for adjournment on 13.7.1993. It is held that the trial Court is absolutely unjustified in rejecting the plaintiffs' application under Order 17 Rule 1 of CPC and thereby dismissing the plaintiff's suit. The first appellate court is also unjustified in dismissing the appeal simply confirming the judgment and decree of the trial Court. Thus, the judgment and decree passed by both the courts below are set aside as findings of fact recorded are perverse. Substantial question of law is answered accordingly. 16. It is well settled that if the concurrent finding recorded by both the courts below are perverse, this Court in exercise of its jurisdiction under Section 100 of CPC can interfere with the said finding of fact so arrived. 17. Resultantly, the order/judgment dated 13.7.1993 passed by the trial Court in Civil Suit No. 42-A/90 as well as impugned judgment & decree passed in Civil Appeal No. 21-A/93 are set aside. Civil Suit No. 42-A/90 (Kartikram Vs. Itwari Bai) is restored to the original file of the said Court for hearing and disposal on merits in accordance with law. 18. The appeal is allowed to the extent indicated hereinabove. 19. Decree be drawn up accordingly. No order as to costs.