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2015 DIGILAW 1083 (GAU)

Rekha Rani Dey Sarkar v. Dilip Roy

2015-08-25

RUMI KUMARI PHUKAN

body2015
ORDER Rumi Kumari Phukan, J. - Heard Mr. D.Mazumdar, learned counsel for the petitioners. Though the name of the learned counsel for the respondent side is reflected in the cause list, but none appears for the respondent when the matter is called upon for hearing. 2. The petitioners were plaintiff in T.S. 25/06 which was filed before the learned Munsiff, Kokrajhar and for eviction of the respondent from the suit premises and for khass possession of the disputed land. The respondent as defendant contested the suit by filing written statement and while the case was posted for hearing, the petitioner as plaintiff filed their evidence in affidavit but due to certain reason here and there the cross examination could not be completed and in the process, the defendant also took adjournment while the petition was ready for hearing. Ultimately on 19.4.2008 while the case was fixed for hearing, of the plaintiff side, for cross examination of the witnesses, the petitioner, has prayed for adjournment of hearing on the ground of her illness. But the learned Court below refused to adjourn the matter. Though the petitioner preferred a petition before the learned trial Court for seeking review of the order dated 19.4.08 but the same was rejected by order dated 19.8.08. Subsequently while the case was kept pending for evidence of the defendant/respondent, the court dismissed the suit on 13.2.2009 by holding that in absence of the evidence of the plaintiff side, the suit need not be proceeded further. Being aggrieved with all the aforesaid order of the learned court below, the petitioner herein filed CRP 73/2009 challenging the order dated 19.4.08 and 13.2.09 as mentioned above and also preferred another revision petition being CRP 240/09 challenging the order dated 19.8.08 whereby the court has refused to review the order dated 19.4.08. 3. As all the matters being related with the same Title Suit and same subject matter, those are taken up for disposal by this common order. By order dated 19.4.08 passed by the learned Court below, the prayer of the petitioner for adjournment of the case is rejected and the court has expunged the evidence of the petitioner side. 3. As all the matters being related with the same Title Suit and same subject matter, those are taken up for disposal by this common order. By order dated 19.4.08 passed by the learned Court below, the prayer of the petitioner for adjournment of the case is rejected and the court has expunged the evidence of the petitioner side. In the impugned order dated 19.4.08, the trial court observed that the petitioner from the day of evidence deliberately failed to produce her evidence in spite of giving chance to produce her witnesses, so her further prayer is rejected and also evidence given by her was expunged. The relevant portion of order dated 19.4.2018 is re-produced below: "Perused the case record. It reveals from the case record. Plaintiff side filed the affidavital evidence-in-chief on 21.12.06 and my learned predecessor fixing the next date on 5.1.07 for cross-examination of plaintiffs witness. But on 5.1.07 adjournment petition filed by the plaintiff side was allowed by my learned predecessor by fixing this next date on 20.1.07. On 20.1.07 also plaintiff side filed adjournment which was allowed by my learned predecessor with a cost of Rs.150/- by fixing the date on 23.2.07, 17.1.08, 8.2.08 which was allowed by my learned predecessor in office with cost. Even on 10.4.07 my learned predecessor in office allowed the adjournment petition with a cost of Rs.200/- by making it condition precedent. But till date plaintiff side had not paid any cost as ordered by my learned predecessor in office. The another finding came up to this court on 29.3.08 and on that last chance was given to plaintiff side for her cross-examination by fixing the date on today. But today also plaintiff side filed the adjournment petition showing as illness. But no any medical certificate is produced along with the adjournment petition. Moreover, as per new amendment of CPC, as per O.17 Rule 1 and 2, adjournment shall not be granted more than three time in the hearing of a suit. But plaintiff even after giving of enough opportunity failed to bring her witness. In view of above petition of plaintiff can't be allowed. Hence rejected. The affidavital evidence filed by the plaintiff side is hereby expunged, thereby closing the evidence of plaintiff side." 4. But plaintiff even after giving of enough opportunity failed to bring her witness. In view of above petition of plaintiff can't be allowed. Hence rejected. The affidavital evidence filed by the plaintiff side is hereby expunged, thereby closing the evidence of plaintiff side." 4. The learned counsel has assailed the observation in the impugned order and contended that the court has not taken into account the old age ailment of the petitioner who is an old lady of 57 years and production of medical document for such female ailment is also not always possible. On the next, It has also been submitted that as has been mentioned in the impugned order, all the adjournment was not taken by the petitioner/plaintiff and the Court has wrongly depicted the dates. On 5.1.07, 23.2.07 and 30.4.07 the adjournment was taken by the petitioner but the defendant also took adjournment at different times and the record will speak itself. Further the observation of the learned court that the petitioner failed to adduce evidence in spite of giving last chance, it cannot be allowed, in view of the new amendment of the CPC, as per Order 17, Rule 1 (2) is also not sustainable because there can be no rigidity of law, not to consider the proper and genuine ground of party suit while granting adjournment. The record will further show that the delay in proceeding with the matter is not wholly attributable to the petitioner and because there was some other aspect come up such as impleadment of parties and filing of written statement by the newly impleaded party. So it has been submitted that the impugned order is harsh upon the petitioner and it has also caused prejudice to the petitioner as her evidence is expunged and subsequently her case is disposed of, thereby defeating her right to establish her case. 5. The learned counsel has relied upon the case law reported in 2005(6) SCC 344 (Salem Advocate Bar Association T.N. v. Union of India) wherein it has been categorically held about the mandate of law and the scope of producing the evidence even after prescribed time under Order 17, Rule 1 (2) CPC. Para 30 and 31 of the aforesaid judgment is reproduced below: "30. Para 30 and 31 of the aforesaid judgment is reproduced below: "30. While examining the scope of the proviso to Order 17, Rule 1 (1) that more than three adjournments shall not be granted, it is to be kept in view that the proviso to Order 17, Rule 1 (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 control of that party. The proviso to Order 17, Rule 1 (1) and Order 17, Rule 1 (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 the 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 the 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 hospitalised 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 the circumstances may be beyond the control of a party, further adjournment cannot be granted because of the restriction of three adjournments as provided in the proviso to Order 17, Rule 1. 31. 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 the Bhopal gas tragedy, Gujarat earthquake and riots, and devastation on account of the 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 the practise having been developed to award only nominal costs even when adjournment on payment of costs is granted. 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. The provision for costs and higher costs has been made because of the practise having been developed to award only nominal costs even when adjournment on payment of costs is granted. 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 come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher costs which can also include punitive costs 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 to peculiar facts of a case." 6. In pursuance of the submission of the learned counsel to the petitioner, I have gone through to the LCR and the relevant order so passed by the Court and it is found to be true that all adjournment for hearing was not granted only at the instance of the petitioner but several adjournment was taken by the defendant/respondent also. Likewise no regular order was passed on several dates due to bandh call and several order was passed for impleading of Malati Sarkar. Following list of dates are mentioned showing status of the case : Date Particulars 21.12.06 Plaintiffs' evidence on affidavit filed 5.1.07 All the PW s present for cross exam. Defendants prayed for adjournment 20.1.07 Plaintiff prayed for adjournment 23.2.07 Defendant filed adjournment petition in advance adjourned 16.3.07 Bandh Call 10.4.07 Plaintiff took adjournment 30.7.07 3 PWs present-defendant prayed for adjournment 18.5.07 2 PWs present - Malati Sarkar submitted petition for impleadment & stay of suit. Suit kept in abeyance. 7.6.07 Necessary order 16.6.07 Necessary order 30.6.07 Necessary order 24.7.07 Necessary order 1.8.07 Necessary order 10.8.07 Malati impleaded as defendant No.4 20.8.07 For service of copy of plaint to Malati -D4 29.8.07 For WS by defendant No.4 14.9.07 For WS by defendant No.4 10.10.07 For WS by defendant No.4 7.12.07 Necessary order 19.11.07 SBPH 3.1.08 SBPH 17.1.08 For cross of P.W plaintiff prayed for adjournment 8.2.08 For cross of P.W. plaintiff prayed for adjournment 3.3.08 Bandh Call 10.3.08 Bandh Call 29.3.08 Plaintiff prayed for adjournment 19.4.08 Evidence expunged, enclosed 7. After going through all the matters on record, I found that the delay in progressing the case not solely attributable to the petitioner and on its every occasion she has assigned reason for her inability to produce the witness which are allowed by the Court earlier. Last prayer of the petitioner vide petition dated 29.3.08 has been turned down by the court below by the impugned order as mentioned above. In the said petition the petitioner has assigned the ground of absence as "personal female disease, she could not come to the court with her witnesses. "But the court for non production of medical certificate has rejected the prayer of adjournment which is seems to be not proper. In view of the fact that the petitioner is an old illiterate lady and due to her ignorance she may not produce such medical certificate which may however, fulfilled, the requirement of law as has been discussed above. The Court can consider such aspect giving due regard in the in hand and can get relaxation of procedure under Order 17, Rule 1 (2) in the interest of justice rather than technically rejected such prayer. As we all aware that, being the court of law and equity, the court has to play a pivotal role while particularly poor litigant who on compulsion pray before the Court to enforce their right to property and other valuable right and other petitioners are sons and daughter who were working as Driver, Carpenter, Sales man in the Garment Shop. Closing of evidence and dismissal of case whose property is stated to have been grabbed by other side has closed the avenue of petitioner to recover her property. The court would have taken a liberal view of the matter before taking into drastic action by passing the impugned order. The LCR itself did not indicate that the petitioner ever played delayed tactic rather it was their interest to get property as early as possible. 8. Considered the entirety of the matter. This court is of the opinion that Court of law always should have a concern to promote justice and not to bury the same. The ground of sudden female illness of the petitioner, can be treated as circumstances beyond control of the petitioner and could have even imposed heavy cost with condition which have not been adhered to. 9. This court is of the opinion that Court of law always should have a concern to promote justice and not to bury the same. The ground of sudden female illness of the petitioner, can be treated as circumstances beyond control of the petitioner and could have even imposed heavy cost with condition which have not been adhered to. 9. Accordingly the impugned order dated 19.4.08 is hereby set aside resultant thereon, the consequential order dated 19.8.08 and 13.02.09 is also hereby quashed. The case is remanded back to the Court below with a direction to allow the petitioner to produce their witnesses with liberty to other side to cross-examine the witness as well as to produce the witness of the defendant and to proceed with the trial accordingly. Both the revision petitions are disposed of. Return the LCR forthwith.