SHIV NATH SAHDEO Vs. BANGAL SAHDEO

JUDGEMENT

(1.) Heard learned counsel for the petitioners.

(2.) The plaintiffs-petitioners' application for adjournment was rejected by the trial court vide Annexure No. 5 on the ground that earlier on three occasions plaintiffs such prayer of adjournment had been granted and in the light of proviso added to Order 17 Rule 1 C.P.C. no adjournment beyond three dates could be granted by the court. The petitioners subsequently moved the trial court with another application under Section 151 C.P.C. (Annexure No. 6) for permitting Ram Raj, one of the the plaintiffs present in the court, to be cross examined by the defendant's counsel. But that application too has been dismissed by the trial court vide Annexure No. 7. Thereafter, only the petitioner approached the revisional court which also did not find favour of the court and has been dismissed vide Annexure No. 9.

(3.) The petitioners on 30.3.2005, which was the 4th date fixed for final hearing (evidence) in the suit, had moved an application for adjournment. As the plaintiffs had already taken three earlier adjournments it actually weighed with the trial court in rejecting the prayer and passing the impugned order. That date being the 4th occasion, the plaintiff to the suit as was seeking adjournment of hearing in the suit it was not allowed in view of the proviso to Order 17 Rule 1 C.P.C. as amended vide C.P.C. (amendment) Act, 1999 (operative w.e.f. 1-7-2002). The ground taken by the petitioner for adjournment was that the plaintiff P.W. 1 had fallen ill and could not reach the court to be present for his cross examination as such. His examination in chief had already been recorded earlier. The ground of illness, which had been taken for such adjournment, was though quite substantial but the gravity of the same has been out-weighed by the trial court simply keeping in view the referred proviso to Rule 1 of Order 17 C.P.C. Subsequent thereto the very next day (31.3.2005) when the plaintiff Ram Raj (P.W. 1) appeared before the court and moved an application under Section 151 C.P.C. offering himself for the cross examination, that prayer has also been dismissed by the trial court. Whether or not there were exceptional reasons or the circumstances beyond the control of the plaintiff on the date when their prayer for adjournment was refused, is a matter of appreciation by the court while granting or refusing such prayer of a party. In this context in order to appreciate the propriety of the order passed by the courts below, a reference to the provisions of Order 17, C.P.C. as a whole, is necessary and it is quoted as below : 1. 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 times to a party during hearing of the suit] (2) Cost of adjournment In every such case the Court shall fix aday for the further hearing of the suit, and [shall make such orders as to costs occasioned by the adjournment or such higher costs as the Court deems fit] : [Provided that, (a) when the hearing of the suit has commenced, it shall be continued from day today until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary, (b) no adjournment shall be granted at the request at the request of a party except where the circumstances are beyond the control of that party, (c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, (e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.]