ORDER : RAJESH SHANKAR, J. Heard learned counsel for the parties. 2. The present writ petition has been filed for quashing the order dated 05.10.2010 passed by the Sub-Judge-VI, Dhanbad in Title Suit No. 70/1999 whereby, the petition dated 05.10.2010 filed by the petitioners for recalling the order dated 23.09.2010 has been rejected. Further prayer has been made for issuance of direction upon the learned Trial Court to allow the petitioners to examine their Defence Witness No. 5 as the last witness. 3. The factual matrix of the case is that Title Suit No. 70/1999 was filed by the plaintiffs/respondents in the Court of the Sub-Judge-I, Dhanbad for a decree of confirmation of title over the suit land. The defendants/petitioners appeared in the case and filed their written statement. While the case was fixed for examination of Defence Witness No. 5, the petitioners filed a time petition on 23.09.2010, but the same was rejected by the Sub-Judge-VI, Dhanbad and the petitioners were debarred from adducing their further evidence. Thereafter, the petitioners filed a recall petition, which was also rejected by the Sub-Judge vide order dated 05.10.2010 holding, inter alia, that the defendants/petitioners have taken five years for adducing their evidence, which indicates their lingering attitude. It was further held that the case was adjourned six times for examination of DW.5 and on 23.09.2010 also, a time petition was filed by the defendants without any affidavit or document taking a plea that DW.5 has gone out of station due to personal reasons. 4. Learned counsel for the petitioners submits that non-examination of DW.5 on the fixed dates was beyond the control of the petitioners and as such at least one opportunity should be given to them to examine DW.5. It is further submitted that on 06.09.2010, last opportunity was given to the petitioners to produce and examine DW.5 fixing the next date on 23.09.2010. However, on 23.09.2010, the petitioners informed the Court that since their last witness i.e. DW.5 has gone out of station due to some personal reason, they could not produce him before the Court and hence some more time may be granted, but the learned Court below misconstrued the facts and closed the evidence of the defendants/petitioners. However, on 23.09.2010, the petitioners informed the Court that since their last witness i.e. DW.5 has gone out of station due to some personal reason, they could not produce him before the Court and hence some more time may be granted, but the learned Court below misconstrued the facts and closed the evidence of the defendants/petitioners. Learned counsel for the petitioners further submits that in fact, the plaintiffs/respondents have harassed the defendants/petitioners in cross-examining DW.3 Mahendra Mandal and DW.4 Vijay Kumar Choudhary (defendant No. 1/petitioner No. 1), as the affidavited evidence of DW.3 was filed on 02.05.2005, but his cross-examination was concluded on 04.09.2009 that too, on intervention of this Court vide order dated 08.03.2006 passed in W.P.(C) No. 1295/2006. Similarly, affidavited evidence of DW.4 Vijay Kumar Choudhary (petitioner No. 1) was filed on 29.11.2005, but his cross-examination was concluded on 30.08.2009 after several dates. It is, thus, submitted that the learned Court below completely ignored the said facts and closed the evidence of the defendants/petitioners on the ground that several adjournments have been taken for producing DW.5. It is also submitted that the petitioners have been vigilant in prosecuting their case, but due to the reason beyond their control, DW.5 could not be produced on 23.09.2010, which led to passing the order dated 23.09.2010 by the learned Court below and subsequently the application filed by the petitioners for recall of the order dated 23.09.2010 was also rejected vide order dated 05.10.2010. 5. Learned counsel for the petitioners, in support of his arguments, puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Salem Advocate Bar Association, T.N v. Union of India, reported in (2005) 6 SCC 344 . 6. On the other hand, learned counsel for the respondents submits that the learned Court below considering the lingering attitude of the petitioners, provided last opportunity to them to produce DW.5 for his examination on 06.09.2010 fixing the next date in the case on 23.09.2010. However, on 23.09.2010 also, the petitioners failed to produce DW.5 due to which the learned Court below was compelled to close the evidence of the petitioners. The impugned order dated 05.10.2010 passed by the learned Court below refusing to recall the order dated 23.09.2010, is completely justified, as it has been discussed that several opportunities were given to the petitioners to adduce their evidence. The impugned order dated 05.10.2010 passed by the learned Court below refusing to recall the order dated 23.09.2010, is completely justified, as it has been discussed that several opportunities were given to the petitioners to adduce their evidence. However, considering the lethargic attitude of the petitioners, the learned Court below refused to recall the order dated 23.09.2010 whereby, the evidence of the petitioners were ordered to be closed. 7. Having heard learned counsel for the parties and on going through the relevant documents placed on record, it appears that undoubtedly the learned Court below provided several opportunities to the defendants/petitioners for adducing their evidence. So far as examination of DW.5, namely, Subodh Prasad Singh is concerned, six adjournments were given by the learned Court below. Finally, vide order dated 06.09.2010, last opportunity was given to the petitioners to produce DW.5 fixing the next date on 23.09.2010. On 23.09.2010 also, the petitioners failed to produce DW.5, rather they filed an application that due to personal compelling reasons, DW.5 had to go out of station and therefore he could not be produced on that day. The learned Court below did not accept the time petition filed on behalf of the petitioners and closed the evidence of the defendants/petitioners. However, it is not in dispute that the plaintiffs/respondents themselves took four years' time in closing their evidence. Moreover, the application of the plaintiffs/respondents for recall of DW.3 (Mahendra Mandal) was allowed twice by the leaned Court below and finally a Bench of this Court vide order dated 08.03.2006 passed in W.P.(C) No. 1295/2006 directed the learned Court below to fix a particular date for further cross-examination of DW.3 and not to give any adjournment, if the plaintiffs/respondents fail to cross-examine DW.3 on the date fixed. Thus, the delay in conclusion of the trial of the suit cannot only be attributed to the defendants/petitioners. 8. The Hon'ble Apex Court in the case of Salem Advocate Bar Association, T.N v. Union of India (Supra) while interpreting the provisions of Order XVII Rule 1 CPC has held as under: “29. Order 17 of the Code relates to grant of adjournments. Two amendments have been made therein. One that adjournment shall not be granted to a party more than three times during hearing of the suit. The other relates to the costs of adjournment. The awarding of costs has been made mandatory. Order 17 of the Code relates to grant of adjournments. Two amendments have been made therein. One that adjournment shall not be granted to a party more than three times during hearing of the suit. The other relates to the costs of adjournment. The awarding of costs has been made mandatory. Costs that can be awarded are of two types. First, costs occasioned by the adjournment and second such higher costs as the court deems fit.” “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 the 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. 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 practice having been developed to award only nominal costs 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 costs 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 the proviso to Order 17 Rule 1(1) from the vice of Article 14 of the Constitution, 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 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. We may, however, add that grant of any adjournment, let alone the 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 the prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict the grant of adjournments.” 9. 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 the prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict the grant of adjournments.” 9. In view of the above ratio laid down by the Hon'ble Apex Court in the aforesaid case, it would emerge that 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 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 considering the fact that refusal to grant adjournment may cause injustice to the party. 10. In the present case, since DW.5 is the last witness to be examined on behalf of the defendants/petitioners, in my considered opinion, one opportunity should be given to the petitioners to adduce the evidence of DW.5, however, on payment of cost by the defendants/petitioners. 11. In view of the aforesaid facts and judicial pronouncement, the impugned order dated 05.10.2010 passed by the Sub-Judge-VI, Dhanbad in Title Suit No. 70/1999 is, hereby, set aside, subject to payment of cost of Rs. 6,000/- by the defendants/petitioners to the plaintiffs/respondents, which shall be paid on the next date fixed in the suit. 12. The petitioners are directed to produce DW.5 before the learned Court below on 21.08.2017 and the examination/cross-examination of DW.5 shall be completed by 31.08.2017. Keeping in view that the suit is of the year 1999, the learned Court below shall make all possible endeavour to conclude the trial of the suit as expeditiously as possible without giving undue adjournment to the parties. Both the parties shall co-operate in the disposal of the suit. 13. Interim order dated 11.01.2011 is, hereby, vacated. 14. The writ petition is, accordingly, allowed and disposed of in terms with the aforesaid observations and directions.