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2015 DIGILAW 509 (ORI)

Ratikanta Panda v. UCO Bank

2015-08-26

A.K.RATH

body2015
JUDGMENT Dr. A.K.RATH, J. - By this petition under Article 227 of the Constitution of India, the petitioner assails the order dated 20.04.2001 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No.220 of 1995, whereby and where under the learned trial Court rejected the application filed by the petitioner to recall the order dated 04.04.2001 and to allow him to examine the witnesses. 2. The petitioner as plaintiff filed a suit for a declaration that the gold ornaments found from Locker No.113 in the defendant no.1- Bank belongs to him, for a direction to the defendant no. 1 to deliver the gold ornaments and for permanent injunction restraining the defendant no.4 from claiming over the gold ornaments in the Court of learned Civil Judge (Senior Division), 1st Court, Cuttack, which is registered as T.S. No.220 of 1995. He filed a petition to issue summons to two witnesses, namely, Sri B.B. Talapatra and Sri S.K. Ghosh. The same was allowed. The summons were issued to the aforesaid witnesses after deposit of the cost by him. On 10.04.2001, the witnesses were present in the Court for examination. Since the advocate for the plaintiff fell ill, he filed a petition for adjournment of the suit. Learned trial Court dispensed with the examination of the said witnesses and debarred the plaintiff to examine them in future. Thereafter, the plaintiff filed a petition to recall the order and allow him to examine the witnesses named above, which was eventually disallowed on 20.04.2001. 3. The learned trial Court came to hold that on 23.11.2000 the plaintiff filed a list of witnesses with a prayer to summon the witnesses as per serial nos.1 to 4. The said prayer was allowed. Two witnesses had already been examined and cross-examined. Sri B.B. Talapatra and Sri S.K. Ghosh were to be examined besides the plaintiff. The witnesses filed their haziras in the Court, but the petition was filed by the counsel for the plaintiff to adjourn. the suit on the ground of illness. It was further held that one of the witnesses, namely, Sri B.B. Talapatra attended the Court from West Bengal. It was further observed that inconvenience of the counsel of a party is not a sufficient ground to adjourn the suit. Further, the suit was to be disposed of by end of June, 2001 since it was a targeted one. It was further held that one of the witnesses, namely, Sri B.B. Talapatra attended the Court from West Bengal. It was further observed that inconvenience of the counsel of a party is not a sufficient ground to adjourn the suit. Further, the suit was to be disposed of by end of June, 2001 since it was a targeted one. The learned Court below took strong exception that the plaintiff has engaged three lawyers and none of them conducted the case and the plaintiff adopted a dilatory tactics to prolong the suit. 4. Heard Mr. D.P. Mohanty, learned counsel for the petitioner and Dr. Sujata Dash, learned counsel for the opposite party. 5.Order XVII CPC deals with adjournments of suit. Rule 1 of Order XVII provides as follows: “1. Court may grant time and adjourn hearing.- (1) 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: xxx xxx xxx” Clause (d) of sub-rule (2), which is the hub of the issue, is quoted hereunder: “(2) Costs of adjournment-in every such case the Court shall fix a day for the further hearing of the suit, and shall make such order as to costs occasioned by the adjournment or such higher costs as the Court deems fits. Provided that :- (a) to (c) xxx xxx xxx (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time” 6. On an interpretation of clause (d) of Sub-rule (2) of Rule 1 Order XVII CPC, the apex Court, in the case of Bashir Ahmed v. Mehmood Hussain Shah, (1995) 3 SCC 529 , held that protraction of trial of the suit should not be encouraged and the Court shall try the suit as expeditiously as possible. On an interpretation of clause (d) of Sub-rule (2) of Rule 1 Order XVII CPC, the apex Court, in the case of Bashir Ahmed v. Mehmood Hussain Shah, (1995) 3 SCC 529 , held that protraction of trial of the suit should not be encouraged and the Court shall try the suit as expeditiously as possible. If the adjournment has occasioned on any sufficient ground, then it may, in an appropriate case, adjourn to a shorter date asking the party seeking adjournment to pay costs incurred by the party who got the witnesses produced and was ready to proceed with trial. It was further held that clause (d) of the proviso specifically mentions that if the Court is satisfied that illness of the counsel or inability of the counsel to proceed with the case was put forward, except when the counsel was engaged in another case as a ground for adjournment, it shall not grant adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time. The relevant paragraphs 5 and 6 are quoted hereunder: “5.The rule thus indicates that protraction of trial of the suit should not be encouraged and the Court shall try the suit as expeditiously as possible. If the adjournment has occasioned on any sufficient ground, then it may, in an appropriate case, adjourn to a shorter date asking the party seeking adjournment to pay costs incurred by the party who got the witnesses produced and was ready to proceed with trial. Clause (d) of the proviso specifically mentions that if the Court is satisfied that illness of the counsel or inability of the counsel to proceed with the case was put forward, except when the counsel was engaged in another case as a ground for adjournment, it shall not grant adjournment. 6. Therefore, the Court is enjoined to satisfy itself in that behalf. If the party engages another counsel as indicated therein, then the need for further adjournment would be obviated. The words “in time” would indicate that at least reasonable time may be given when a counsel suddenly becomes unwell. There would be reasonable time for the parties to make alternative arrangement, when sufficient time intervenes between the last date of adjournment and the next date of trial. The words “in time” would indicate that at least reasonable time may be given when a counsel suddenly becomes unwell. There would be reasonable time for the parties to make alternative arrangement, when sufficient time intervenes between the last date of adjournment and the next date of trial. In such a case, adjournment on the ground of counsel’s ill health could be refused and the party would bear the responsibility for his failure to make alternative arrangements. Take for instance, a suit was adjourned for trial for a period of one week and the counsel appears to have suddenly become indisposed which would be known to the party. Therefore, the party, in advance, has to make alternative arrangement to proceed with the trial engaging another counsel The words “in time” would, therefore, indicate that reasonable time would be required for making alternative arrangements.” 7. On the anvil of the decisions cited supra, the case is required to be examined. On the date of hearing of the suit, the counsel for the plaintiff had filed a petition for time on the ground of his illness. Learned trial Court observed that inconvenience of the counsel of a party is not a sufficient ground to adjourn the suit. Learned trial Court has not kept in view the provision of Clause (d) of Rule 2 of Order XVII CPC while rejecting the petition. Unless there was time for the new counsel to be engaged, it would be difficult to proceed with the examination of the witnesses present in the Court on the spur of the moment. The plaintiff had no time to make an alternative arrangement. Engaging a new counsel to proceed with trial would be fraught with grave risk and unrealistic. The trial Court should have adjourned the case for the next date enabling the plaintiff to engage another counsel to proceed with the examination of the witnesses. 8. In the wake of the aforesaid, the order dated 20.4.2001 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No.220 of 1995 is quashed. The learned trial Court is directed to issue fresh summons to the witnesses at the cost of the plaintiff. The plaintiff shall make an endeavourance to bring those witnesses within a period fixed by the learned trial Court. The learned trial Court is directed to issue fresh summons to the witnesses at the cost of the plaintiff. The plaintiff shall make an endeavourance to bring those witnesses within a period fixed by the learned trial Court. In the event of failure of the plaintiff to bring the witnesses or non-attendance of the witnesses, the learned trial Court shall proceed with the suit. The learned trial Court is directed to conclude the hearing of the suit by end of February, 2016. The petition is disposed of. Petition disposed of.