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2016 DIGILAW 1093 (JHR)

Ramanuj Tiwary v. Rabindar Tiwary

2016-07-20

RAVI NATH VERMA

body2016
ORDER : 1. Legality of the order dated 22.02.2016 passed by the District Judge-III, Palamau in Title Appeal No. 59 of 2007 has been challenged by the petitioners whereby and wherein a petition filed by the defendant-petitioners in the appellate court for grant of time has been rejected with cost of Rs.3,000/-. 2. A brief fact of the case is necessary to discuss for better appreciation of the issue involved in this writ petition: At the instance of plaintiff Byomkesh Tiwari-the husband of the present respondent no. 2 and father of respondent no. 3, a partition suit bearing no. 57 of 1970 was filed for partition of the ancestral lands and the said partition suit was decreed by judgment and preliminary decree dated 12.06.1976. Even though the plaintiff preferred First Appeal bearing no. 48 of 1996 (R) at Patna (Ranchi Bench). In the said appeal, the defendant nos. 1 and 2 the present petitioners filed a cross-objection. The Hon’ble Court allowed the appeal by judgment and decree dated 23.11.1984. The cross-objection was also allowed in part. Accordingly, the decree was modified in terms of the judgment of appellate court. Thereafter, a petition was filed by the plaintiff in the trial court for appointment of Pleader Commissioner for carving out Takhta and the share of the plaintiff and defendants also filed a petition for carving out their Takhtas. The court concerned directed to appoint a Pleader Commissioner. In the year 1987, it was detected by the present petitioner that somebody has made interpolation in description of the land as mentioned earlier in the plaint of Partition Suit No. 57 of 1970 with pen without the permission of the court. 3. After the disposal of the above Partition Suit, one Pavitri Devi wife of present appellant no. 1 filed a separate Suit bearing Title Suit No. 81 of 1987 against the present respondents but the aforesaid suit was dismissed and the appeal filed against the said judgment and decree was also dismissed. Thereafter, Second Appeal was preferred against the judgment of First Appellate Court, which is still pending for final hearing. In the earlier execution case, direction was given by the executing court to the Pleader Commissioner to make the partition and allot Takhtas according to the right declared in preliminary decree and the Pleader Commissioner submitted his report on 14.08.1996 against which the present petitioners filed their objections. In the earlier execution case, direction was given by the executing court to the Pleader Commissioner to make the partition and allot Takhtas according to the right declared in preliminary decree and the Pleader Commissioner submitted his report on 14.08.1996 against which the present petitioners filed their objections. Respondent No. 1 also filed his objection. The trial court by its order dated 20.07.2007 after confirming the report of Pleader Commissioner passed the final decree in Partition Suit No. 57 of 1970 against which, the present respondent no. 1 preferred the Partition Appeal No. 59 of 2007. In the appeal against the final decree, a petition was filed at the instance of the respondent- petitioner on 02.02.2016 praying therein for grant of 15 days adjournment on the ground that the appellant of the appeal against final decree during trial of T.S. No. 81 of 1987 had admitted that the land and house built over the Plot nos. 391 and 392 of Khata no. 252 of village Polpolkala was the self-acquired property of Smt. Pavitri Devi and had also accepted her exclusive right, title and possession and as such the certified copy of those documents containing the admission of the appellant-respondents have to be obtained from his counsel of the Hon’ble High Court but as the prayer was rejected by impugned order, the petitioners preferred this writ. 4. Learned counsel appearing for the petitioners assailing the order impugned as bad in law submitted that the document for which, the time was prayed, was relevant and necessary for the proper adjudication of the case but the court below erred in not granting time rather allowed an exorbitant cost of Rs.3,000/- and the refusal to grant time amounts to miscarriage of justice since those documents were necessary to be filed as an additional evidence. 5. The word “may adjourn” as used in Order XVII Rule 1 of the Code of Civil Procedure clearly stipulates that the grant or refuse to grant adjournment is completely within the discretion of the court. However, it should be exercised judiciously and reasonably after considering the evidences and circumstances of each case. While acting under Sub-Rule (1) of Rule 1 of Order XVII, the court has to keep in mind two conflicting considerations: (i) that it should not grant adjournment if no sufficient cause is shown by the applicant seeking such adjournment. However, it should be exercised judiciously and reasonably after considering the evidences and circumstances of each case. While acting under Sub-Rule (1) of Rule 1 of Order XVII, the court has to keep in mind two conflicting considerations: (i) that it should not grant adjournment if no sufficient cause is shown by the applicant seeking such adjournment. (ii) it should not refuse an adjournment if sufficient cause is made out. 6. I have gone through the order impugned and the record of the case and I find that the appeal was filed in the year 2007 and the hearing of the appeal was deferred for almost 8 years on one ground or other. This is the second round of litigation between the parties and after first round, the petition for preparation of final decree was filed and on the report submitted by the Pleader Commissioner, the final decree was passed after hearing objections of both the parties. Whereafter, appeal was preferred. The respondent nos. 1 and 2 the present petitioners filed the petition for adjournment when the case was called out for final hearing on the plea that in another suit filed at the instance of one Pavitri Devi-wife of present petitioner no. 1 bearing T.S. No. 81 of 1987, there was an admission of the present respondents that Pavitri Devi has the right, title and exclusive possession over the two plots of Khata No. 252 , which is also a subject matter of the suit. The reason best known to the petitioners they waited for almost 8 years and never made any effort to bring the certified copy of those documents and file the same as additional evidence in the appeal. The hearing of the appeal was pending since after 2007 and when the appellant was ready to argue the appeal, the petition was filed for time but no sufficient or reasonable ground was taken in the said petition for grant of time. It cannot be said that the circumstances were beyond the control of the party and so adjournment was prayed. It was also not that the counsel for respondent was not present in court rather the counsel filed the petition and prayed for time. Undoubtedly, to grant time or to refuse adjournment is matter within the discretion of the court and such a discretionary order should not be interfered with by any other higher court. It was also not that the counsel for respondent was not present in court rather the counsel filed the petition and prayed for time. Undoubtedly, to grant time or to refuse adjournment is matter within the discretion of the court and such a discretionary order should not be interfered with by any other higher court. In the case Sukhlal Singh vs. Kalyan Singh, AIR 1963 SC 146 , a similar issue was considered by the Hon’ble Supreme Court in which the first appeal when came up for final hearing before the High Court, the Advocate for the appellant prayed for adjournment on the ground that he had no instruction to represent the appellant, the prayer was rejected by the High Court whereafter appeal was filed before the Hon’ble Supreme court and by majority view, the appeal was dismissed and the Hon’ble Supreme Court refused to interfere in such discretionary order. It appears from the impugned order as well as from the petition filed by the present petitioners in the court below, no sufficient cause or reasonable reasons were shown by the petitioners. Even there is no whisper that even after due diligence, the petitioners failed to get those documents or any effort had been taken by them during the long pendency of the appeal between 2007 to 2016 to get those documents. The grounds of compromise taken for delay by the petitioners have been completely denied by the appellant-respondent in his rejoinder to the said time petition. The learned counsel appearing for the petitioners has not pointed out any plausible ground to interfere in the order impugned. 7. In view of the discussions made above, I do not find any reasonable ground to interfere in the order impugned. Hence, this writ application, being devoid of any merit, is, hereby, dismissed. Application dismissed.