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2018 DIGILAW 203 (GAU)

Manoj Mirdha v. Shivaram Nath

2018-02-01

A.K.GOSWAMI

body2018
JUDGMENT & ORDER : Arup Kumar Goswami, J. Heard Mr. A. Ganguly, learned counsel appearing for the petitioner. Also heard Mr. S. Sahu, learned counsel for the respondents. 2. This application under Article 227 of the Constitution of India is filed against an order dated 18.5.2016, whereby the learned Civil Judge, Sonitpur, Tezpur, rejected the petition, being Petition No. 1034/2016, praying for further time for submitting "further PW". 3. The plaintiff had filed a suit, being Title Suit No. 3/2014, for specific performance of contract for sale, recovery of possession by eviction, permanent injunction, compensation, damages, etc., on 20.3.2014. The defendants filed written statement on 24.6.2014. 29.11.2014 was the first date fixed for filing evidence by the plaintiff. On that day, the plaintiff prayed for time to file evidence on affidavit and while granting time, the case was fixed on 7.1.2015 for plaintiff's evidence. 4. The case was fixed on 7.1.2015, 18.2.2015, 14.3.2015, 19.6.2015, 21.7.2015, 20.8.2015, 22.9.2015, 12.11.2015, 17.12.2015 and 28.01.2016 for the purpose of filing evidence on affidavit by the plaintiff. On all these dates, the plaintiff prayed for time to file evidence on affidavit and the prayers were granted. On all these dates, the defendants were represented. On 28.1.2016, the court had, on perusal of the case record granted last opportunity to the plaintiff for submitting evidence on affidavit fixing 17.2.2016. On 17.2.2016, the Presiding Officer was on casual leave. The evidence of the plaintiff was not filed on that date and the case was fixed on 14.3.2016 for "put up", obviously for the purpose of orders of the court. On 14.3.2016, after perusal of the case records as well as the last order passed, the court directed that evidence of PWs must be submitted on the next date without fail and fixed the next date on 21.4.2016. On 21.4.2016, evidence of PW1 (plaintiff) was submitted and an application was filed praying for another date for filing of evidence of the remaining plaintiff's witnesses. The prayer was allowed fixing 18.5.2016. On 18.5.2016, a petition, being petition No. 1034/2016, was filed, which reads as follows : "The advocate of the plaintiff is present before the Hon’ble Court today. It is respectfully submitted on behalf of the plaintiff as under: 1. That today the date is fixed for PW. 2. The prayer was allowed fixing 18.5.2016. On 18.5.2016, a petition, being petition No. 1034/2016, was filed, which reads as follows : "The advocate of the plaintiff is present before the Hon’ble Court today. It is respectfully submitted on behalf of the plaintiff as under: 1. That today the date is fixed for PW. 2. That the plaintiff has today submitted PW2 and needs time for submission for further evidence as witness is out of station for urgent work. It is prayed, therefore, that the Hon’ble Court may kindly be pleased to adjourn the case for today and allow time for submitting further PW for ends of equity and justice." 5. The said petition was filed by the counsel of the plaintiffs with the verification of one J.P. Mishra, advocate. The said petition was rejected on perusal of the case record and taking note of the fact that evidence on affidavit of PWs is pending from 29.11.2014. 6. In Shiv Cotex v. Tirgun Auto Plast (P.) Ltd., (2011) 9 SCC 678 , at paragraph 14, 15, 16 and 17, the Supreme Court observed as follows : "14. Second, and equally important, the High Court upset the concurrent judgment and decree of the two courts on misplaced sympathy and non-existent justification. The High Court observed that the stakes in the suit being very high, the plaintiff should not be non-suited on the basis of no evidence. But, who is to be blamed for this lapse? It is the plaintiff alone. As a matter of fact, the trial court had given more than sufficient opportunity to the plaintiff to produce evidence in support of its case. As noticed above, after the issues were framed on 19.7.2006, on three occasions, the trial court fixed the matter for the plaintiffs evidence but on none of these dates any evidence was let in by it. What should the court do in such circumstances? Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be a silent spectator and leave control of the case to a party to the case who has decided not to take the case forward? 15. It is sad, but true, that the litigants seek - and the courts grant - adjournments at the drop of the hat. Should the court be a silent spectator and leave control of the case to a party to the case who has decided not to take the case forward? 15. It is sad, but true, that the litigants seek - and the courts grant - adjournments at the drop of the hat. In the cases where the Judges are little pro-active and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments do dent the efficacy of the judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit. 16. No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to order 17, rule 1, CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to order 17, rule 1, CPC should be maintained. When we say 'justifiable cause' what we mean to say is, a cause which is not only 'sufficient cause' as contemplated in sub-rule (1) of rule 1 of order 17, CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc., in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. 17. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar and grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit - whether plaintiff or defendant - must cooperate with the court in ensuring the effective work on the date of hearing, for which the matter has been fixed. If they don't, they do so at their own peril." 7. In Noor Mohammed v. jethanand and Anr., (2013) 5 SCC 202 , the Supreme Court observed that the virtues of adjudication cannot be allowed to be paralyzed by adjournments and non-demonstration of due diligence to deal with the matter. It was emphasized that one cannot be oblivious to the feeling necessities of the time and that no one can afford to sit in an ivory tower. At paragraph 13 it is observed as follows: "13. It has to be kept in mind that the time of leisure has to be given a decent burial. The sooner it takes place, the better it is. It is the obligation of the present generation to march with the time and remind oneself every moment that rule of law is the centripodal concern and delay in delineation and disposal of cases injects an artificial virus and becomes a vitiating element. The unfortunate characteristics of endemic delays have to be avoided at any cost. One has to bear in mind that this is the day, this is the hour and this is the moment, when all soldiers of law fight from the path. One has to remind oneself of the great saying, "Awake, Arise, 'O' Partha"." 8. The unfortunate characteristics of endemic delays have to be avoided at any cost. One has to bear in mind that this is the day, this is the hour and this is the moment, when all soldiers of law fight from the path. One has to remind oneself of the great saying, "Awake, Arise, 'O' Partha"." 8. While it is true that cap on adjournments to a party during the hearing of the suit provided in proviso to order 17, rule 1, CPC is not mandatory and, in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but, ordinarily, the cap provided should be maintained. Justifiable cause is not only sufficient cause as contemplated in order 17, rule 1(i), CPC but a cause which makes a request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity. A party to the suit has no right to determine when the evidence should be let in by it or the matter should be heard. 9. In Prasanta Kumar Katoni and Ors. v. Tuniram Katone and Ors., (2008) 1 GLR 465 ; 2007 (2) GLT 689, on which reliance is placed by Mr. Ganguly, this court had reiterated that order 17, rule 1, CPC is not a mandatory provision. 10. It is seen that for the purpose of filing evidence of the plaintiff himself, 12 dates had been taken. The learned trial court had given more than sufficient opportunity to the plaintiff to produce evidence in support of his case. From the date when the last chance was given, which is 28.1.2016, to the date of the impugned order, there was a time gap of more than 4 months and, under the circumstances, I see no good reason to interfere with the impugned order, more so, when the petition filed on 18.5.2016 does not show a justifiable ground which could have persuaded the court to grant one more opportunity to the plaintiffs. No explanation is given in that petition as to why, even after the last chance was given on 28.1.2016, evidence of affidavit could not be made ready for a period of more than 4 months for that particular witness for whom time was prayed for. 11. No explanation is given in that petition as to why, even after the last chance was given on 28.1.2016, evidence of affidavit could not be made ready for a period of more than 4 months for that particular witness for whom time was prayed for. 11. The orders passed by the learned trial court, more particularly, the orders dated 28.1.2016 and 14.3.2016 are clear that such orders granting adjournment were passed more by way of affording another opportunity to the plaintiffs to adduce evidence and not for intrinsic worth of the prayers made for adjournment. 12. The reliance placed by Mr. Ganguly in State Bank of India v. Chandra Govindji (Km.), (2000) 8 SCC 532 is not applicable in the facts of this case. In paragraph 7 of Chandra Govindji (supra), the Supreme Court had observed that one should not ordinarily go beyond the date on which adjournment is sought for. It is already held that the petition filed on 18.5.2016, having regard to the discussions made in the context do not provide justifiable cause to warrant further opportunity to submit evidence. It is to be noted in this context that in Shiv Cotex (supra), the Supreme Court had stated that the past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. 13. In view of the above discussions, this revision petition is dismissed. No cost.