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Madhya Pradesh High Court · body

2019 DIGILAW 870 (MP)

Shriballabh Dandotiya v. Mohanswaroop

2019-12-16

G.S.AHLUWALIA

body2019
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 24.10.2019 passed by IInd Civil Judge Class 2, District Morena in Civil Suit No. 172-A/2016, by which an application filed by the petitioner under Order 17 rule 1 CPC was rejected and the right of the petitioner to lead evidence was closed. 2. The necessary facts for the disposal of the present petition, in short, are that the petitioner has filed a suit for declaration of title and permanent injunction. The suit was filed in the year 2016. 3. On 14.11.2018 the issues were framed and the case was fixed for recording of plaintiff’s evidence on 13.12.2018. On 13.12.2018, since the Presiding Officer was not available, therefore, the case was adjourned to 3.1.2019 and thereafter, it was adjourned to 6.2.2019, 28.2.2019, 16.4.2019, 24.4.2019, 7.5.2019, 6.5.2019 and 3.7.2019. 4. It is not out of place to mention here that the adjournments on 16.5.2019 and 3.7.2019 were granted after imposition of cost. Thereafter, on 3.8.2019 the plaintiff filed his affidavit under Order 18 Rule 4 of CPC and the case was adjourned to 13.9.2019 for his cross examination. On 13.9.2019, an application under Order 17 Rule 1 of CPC was filed seeking adjournment and the case was adjourned to 24.10.2019 with a clear stipulation that by way of indulgence, last opportunity is being granted. 5. On 24.10.2019 also the petitioner did not appear and, accordingly, the trial Court closed the right of the petitioner to lead the evidence. On the same day, the defendants also expressed that they don’t want to give evidence and accordingly, the case was fixed for final arguments on 20.11.2019. 6. It is submitted that the case has not been finally heard so far. 7. Challenging the order dated 24.10.2019, it is submitted by the counsel for the petitioner that on 23.10.2019, i.e., one day prior to the date on which the case was fixed for evidence, the petitioner had fallen down in the house, as a result of which, he had sustained certain injuries and, therefore, he could not appear before the trial Court. To support his contention, the petitioner has filed the outpatient record of District Hospital, Morena. To support his contention, the petitioner has filed the outpatient record of District Hospital, Morena. Thus, it is submitted that one last opportunity may be granted to the petitioner, otherwise the petitioner would suffer irreparable loss and it is further submitted that the Court must consider the reason for non-appearance of the party on the particular day and the previous conduct of the plaintiff cannot be taken into consideration. To buttress his contention, the counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of State Bank of India v. Chandra Govindji (KM) reported in (2000) 8 SCC 532 . 8. Heard the counsel for the petitioner. 9. The Supreme Court in the case of State Bank of India (supra), has held as under : “7. In ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournment, if any, granted would certainly be for reasonable grounds and that aspect need not be once again examined if on the date on which adjournment is sought for, the party concerned has a reasonable ground. The mere fact that in the past, adjournments had been sought for, would not be of any materiality. If the adjournment had been sought for on flimsy grounds, the same would have been rejected. Therefore, in our view, the High Court as well as the learned District Judge and the Rent Controller have all missed the essence of the matter.” 10. It is the case of the petitioner that although on the previous occasions, he may not have appeared before the trial Court but on 24.10.2019, he had a reasonable reason for his non-appearance, as he had fallen down in the house and thus, the trial Court should not have closed his right and should not have rejected the application filed under Order 17 rule 1 of CPC. 11. On 24.10.2019, the petitioner had filed an application under Order 17 rule 1 of CPC mentioning therein that as the petitioner had fallen down in his house and, therefore, he has gone out of station for his treatment and accordingly, he is unable to appear before the Court. 12. 11. On 24.10.2019, the petitioner had filed an application under Order 17 rule 1 of CPC mentioning therein that as the petitioner had fallen down in his house and, therefore, he has gone out of station for his treatment and accordingly, he is unable to appear before the Court. 12. Thus, in the application, it is mentioned that the petitioner is out of station for the purpose of his treatment, whereas the petitioner has filed a copy of the outpatient record of District Hospital, Morena to show that on 23.10.2019 at about 12 p.m., he was treated in the hospital. 13. The petitioner has not filed any document to show that he had taken any medical treatment in any other hospital. From the outpatient record also it is clear that the petitioner was not given advice of bed rest. It is not the case of the petitioner that he was not in a position to move, on the contrary, it was mentioned in the application that he has gone out of station for the purposes of his treatment. As the petitioner has not filed any prescription or medical document of any other hospital to show that he was under treatment in any hospital situated outside the city of Morena, it is clear that the reason assigned by the petitioner in his application under Order 17 rule 1 of CPC was not bona fide and it was false. If the conduct of the petitioner on 24.10.2019 is considered in the light of his previous conduct, then it is clear that on earlier two occasions, the adjournment was granted on payment of cost and on 13.9.2019 it was specifically mentioned by the trial Court that by way of last indulgence, an adjournment is being granted. However, it appears that the petitioner did not show any interest in leading the evidence. Thus, it is clear that by hook and crook, the petitioner was interested in keeping the suit pending, whereas the suit was filed in the year 2016. Therefore, it is clear that more than three and half years have already passed from the date of the institution of suit without any substantial progress. Further, the trial Court had also granted time for more than 10 months for leading evidence with 10 adjournments, but none of the opportunity was availed by the petitioner. 14. Therefore, it is clear that more than three and half years have already passed from the date of the institution of suit without any substantial progress. Further, the trial Court had also granted time for more than 10 months for leading evidence with 10 adjournments, but none of the opportunity was availed by the petitioner. 14. So far as irreparable loss is concerned, it is true that in case if no evidence is lead, then the plaintiff shall certainly suffer the loss, but the plaintiff should have realized this fact at the time when adjournments were being sought from the trial Court. He should not have taken the proceedings taken for grant. 15. Order 17 Rule 1 of CPC reads as under : “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 : Provided that no such adjournment shall be granted more than three time to a party during hearing of the suits.” 16. Thus, it is clear that no adjournment shall be granted more than three times to a party during hearing of the suit. In spite of the specific provisions of Order 17 rule 1 of CPC, if the petitioner had not shown any interest in giving his evidence, then the trial Court was not under obligation to adjourn the matter just in order to protect the interest of the petitioner. 17. Under these circumstances, this Court is of the considered opinion that the Ttrial Court did not commit any mistake by rejecting the application filed under Order 17 rule 1 of CPC and thereby closing the right of the petitioner to lead evidence. As a consequence thereof, order dated 24.10.2019 passed by IInd Civil Judge ClassII, District Morena in Civil Suit No.172-A/2016 is hereby affirmed. Accordingly, this petition fails and is hereby dismissed.