Suresh Chand Jain S/o Shri. Sohan Kodia v. Purnima College of Engineering
2017-12-05
ALOK SHARMA
body2017
DigiLaw.ai
JUDGMENT : ALOK SHARMA, J. 1. The defect pointed out by the registry is waived. With the consent of learned counsel for the petitioner-plaintiff (for short, ‘the plaintiff), arguments have been heard and the petition is being finally decided at this stage. 2. Under challenge is the order dated 13.11.2017, whereby the trial court has dismissed the application under Order 18 Rule 17 CPC read with Section 151 CPC for recall of the order dated 10.10.2017, whereby the plaintiff's evidence was closed for his failure to bring on record his evidence for a period of 10 years, subsequent to the commencement on 12.1.2006 Also under challenge is the order dated 10.10.2017 aforesaid. 3. I have heard counsel for the plaintiff and perused the impugned orders. 4. From the impugned orders, it is evident that issues in the suit laid by the plaintiff were framed on 30.11.2005 and the plaintiff's evidence commenced on 12.1.2006 Over 10 years thereafter multiple opportunities were granted to the plaintiff to bring his evidence on record. On 10.7.2017, the plaintiff was allowed last opportunity to bring his evidence, yet he did not. Neither did he do so on date fixed before the trial court i.e. on 25.7.2017 and 8.8.2017 even on costs. The plaintiff finally commenced his evidence before the trial court which, however, remained incomplete on 31.8.2017 The matter was fixed on 19.9.2017 On the said date, time was sought for reason of plaintiff's illness and the matter was adjourned to 10.10.2017 On 10.10.2017, again adjournment was sought on behalf of plaintiff on the basis of his discharge ticket. The trial court, however, on perusal of the discharge ticket found that it did not indicate that the plaintiff was unable for reason of illness to travel to Jaipur for his evidence. In these circumstances, taking note of the inordinate delays of the plaintiff in leading his evidence despite several opportunities including same on costs and also taking into consideration the directives of the Apex Court as also of this Court to expedite trial in civil suits over 10 years old, the trial court closed the plaintiff's evidence vide order dated 10.10.2017 The application for recall thereof filed on 1.11.2017, has been dismissed by the impugned order dated 13.11.2017 as no good ground for recall of the order dated 10.10.2017 was made out. 5. Mr.
5. Mr. S.S Hora appearing for the plaintiff has submitted that in the interest of justice, one last opportunity should be granted for leading of the plaintiff's evidence. He submitted that over 10 years between framing of the issues and the closer of the plaintiff's evidence on 10.10.2017, the matter was also adjourned on costs on the defendants for seeking time. He submitted that in this view of the matter, the delay in bringing plaintiff's evidence is not attributable to him alone. The trial court ought to have taken a balanced view, Mr. Hora submitted, which it did not. He prayed that the plaintiff be allowed one opportunity to lead his evidence. 6. Heard. Considered. 7. Adjournments in the trial are not a right of the litigant. They lie in the discretion of the trial court. Proviso to Order 17 Rule 1 CPC states that “no such adjournment shall be granted more than three times to a party during hearing of the suit”. The Apex Court in the case of Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [ (2011) 9 SCC 678 ], has held that adjournment should be ordinarily limited to three/four times in the life of the suit. 8. In the instant case, the plaintiff took over 10 years since the framing of issues has failed to bring his evidence on record and thereafter, after commencing it, remained absent on the basis of his discharge ticket, which did not indicate that the plaintiff was unable for reason of illness to travel to Jaipur for his evidence. The trial court in the circumstances has reasonably exercised its discretion in passing both the impugned orders. 9. I find no substance in the contention of Mr. S.S Hora that there has to be an equivalence in the number of adjournments granted to the plaintiffs viz-a-viz the number of adjournments to the defendants in the course of a trial. I am of the view that each date, adjournment when sought has to be with reference to the facts obtaining and ground for adjournment advanced. In the order dated 10.10.2017, the trial court has noted that the plaintiff had been given ample adjournments, some even on costs, yet not completed his evidence. The reason for non appearance on 10.10.2017, which was stated to be, inability of the plaintiff to attend the court was not supported by discharge certificate.
In the order dated 10.10.2017, the trial court has noted that the plaintiff had been given ample adjournments, some even on costs, yet not completed his evidence. The reason for non appearance on 10.10.2017, which was stated to be, inability of the plaintiff to attend the court was not supported by discharge certificate. The trial court found that discharge ticket did not indicate the inability of the plaintiff to attend court at Jaipur for continuing with his evidence in the suit. 10. It is well settled that where the discretion of the trial court is exercised for the well stated reasons and is neither capricious not patently illegal, it warrants no interference at the hands of the court in the exercise of its supervisory jurisdiction. 11. I find no force in the petition. It is accordingly dismissed.