PUSHPA DEVI Vs. VIJAY KUMAR

JUDGEMENT

(1.) TARUN Agarwala, J. Heard Sri P. K. Ganguli, the learned Counsel for the petitioners and Sri G. K. Gupta, the learned Counsel for respondent No. 1.

(2.) THE examination of the defence witness Nos. 1 and 2 were closed on 31-1-2005. THE defence witness Nos. 3 and 4 were not available on that date. Consequently, the defendant moved an application for adjournment and for fixing a date for the examination of defendant Nos. 3 and 4, on the ground, that the defence witness No. 3 being 80 years old was unwell on account of the extreme cold climate and was unable to come to the Court to lead the evidence. With regard to defence witness No. 4, it was contended that the said witness was a professional handwriting expert and was only available on Wednesday and therefore, some Wednesday be fixed for his examination. This application was rejected by the trial Court by an order dated 31-1-2005. A recall application was moved which was rejected by an order dated 28-8- 2006 on the ground that the defendant had continuously taken five adjournments and therefore, no further adjournment could be allowed in view of the mandatory provisions of Order XVII, Rule 1 of the C. P. C. THE petitioners being aggrieved by the aforesaid orders have filed the present writ petition.

(3.) UNDER Order XVII, Rule 2 of the C. P. C. various grounds have been indicated where the Court could adjourn the examination of the witness for exceptional reasons to be recorded on payment of cost. In the present case one of the witness was 80 years old and it was contended that he became unwell on account of the extreme cold climate prevailing at that time. This fact of harsh cold claim is well known in India especially in Northern India during the month of January. Further the witness was 80 years old. The Court should have considered this aspect of the matter and granted an adjournment which admittedly was beyond the control of the defendant. The exception provided under Order XVII, Rule 2 (b) was clearly applicable in the present case. Similarly, it was alleged that the defence witness No. 4 being a professional handwriting expert was only available on Wednesday and therefore, the Court should have fixed a date on Wednesday for examination of that witness. The record further shows that the adjournment for summoning the defence witness Nos. 3 and 4 was only sought for the first time. Consequently, the Court ought to have exercised its discretion in granting an adjournment on payment of cost, if necessary.