RAJKUMAR PATEL Vs. SHIVRAJ SINGH CHOUHAN

JUDGEMENT

(1.) HEARD on I. A. No. 2/2009, that has been moved for grant of adjournment on the ground that the petitioner is not medically fit to give evidence. In support thereof, a certificate, issued on behalf of Chirayu Health and Medicare (P) Ltd. , bhopal, to the effect that the petitioner is suffering from disc-prolapse has been filed.

(2.) OPPOSING the prayer vehemently, the learned Senior Counsel has submitted that it is yet another attempt to protract the election trial. According to him, he has credible information that the petitioner was seen roaming in bhopal yesterday only. Placing reliance on a decision of the Apex Court in mohandas Vs. Ghisia Bai, AIR 2002 SC 2436, he has emphatically contended that the petition deserves to be dismissed under Order XVII Rule 2 of the Civil procedure Code (for brevity 'the Code'), in view of petitioner's failure to enter into the witness box even after obtaining a series of adjournments for the purpose during the period commencing from 10-9-2007.

(3.) IN response, learned Counsel for the petitioner has urged that the proviso to Rule 1 of Order XVII of the Code, though inserted with a view to placing restriction on grant of more than three adjournments, has already been construed as directory in nature. He is further of the view that an adjournment should not be refused where the cause is beyond the control of the party. To buttress the contention, attention has been invited to the undermentioned observations made by the Apex Court in Salem Advocate Bar Assn. Vs. Union of india, (2005) 6 SCC 344. "the Proviso to Order XVII, Rule 1 and Order XVII, Rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments as provided in proviso to Order XVII Rule 1. "