Himachal Pradesh High Court
Bala Ram (Deceased) Through Lrs And ... vs Simru Ram (Deceased) Through His Lrs on 20 October, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 145 of 2004 .
Reserved on: 10.10.2023 Date of Decision: 20.10.2023 Bala Ram (deceased) through LRs and others of ...Appellants Versus Simru Ram (deceased) through his LRs rt ...Respondents Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellants : Ms. Ruma Kaushik, Advocate.
For the Respondents : Mr. Ajay Sharma, Sr. Advocate with Mr. Atharv Sharma, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment & decree dated 9.1.2004, passed by the learned District Judge, Kinnaur, Civil Division at Rampur Bushahr, vide which the appeal filed by the appellants (defendants before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 20/10/2023 20:39:44 :::CIS 2to in the same manner as they were arrayed before the learned Trial Court for convenience).
.
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking permanent prohibitory injunction for restraining the defendants from interfering with the land of comprised in Khata/Khatauni No. 62/205 min, Khasra No. 55, rt measuring 0-14-74, situated in Mauja Molagi, Tehsil Rampur, District Shimla, H.P. (hereinafter referred as the suit land). It was pleaded that the suit land was allotted to the plaintiff in the partition proceedings. Salmu, (defendant No.1) and other co-
sharers agitated the matter up to the Commissioner, Shimla.
The objections raised by them were rejected by the Revenue Courts. The possession of the suit land was delivered to the plaintiff on 26.5.2000 as per the order passed by learned AC-2nd Grade, Rampur. Defendant No. 1 filed a suit for possession under Section 6 of the Specific Relief Act, thereby admitting the possession of the plaintiff. Defendants threatened to interfere with the possession of the plaintiffs and to take forcible possession of the suit land. They were requested not to do so but ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 3 in vain. Hence, the suit was filed to seek the reliefs mentioned above.
.
3. The suit was opposed by filing a written statement, taking of preliminary objection regarding the suit being barred under Section 10 CPC in view of the pendency of the earlier suit between the parties. The contents of the plaint were denied on of merits. It was admitted that the suit land was allotted to the rt plaintiff during the partition. It was asserted that no instrument of partition was prepared and the partition could not be said to be complete without the instrument of partition. The plaintiff did not acquire the ownership of the suit land. The plaintiff is not in possession and in case the possession is proved, he is liable to restore the possession to the defendants; therefore, it was prayed that the suit be dismissed.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. The learned Trial Court framed the following issues on 19.12.2002:-
1. Whether the plaintiff is entitled for decree of permanent prohibitory injunction? OPP.
2. Whether this suit is barred under Section 10 of CPC? OPD.::: Downloaded on - 20/10/2023 20:39:44 :::CIS 4
3. Whether the possession of suit land was never delivered in accordance with law, on 26.5.2000? OPD.
4. Relief.
.
6. The parties were called upon to produce the evidence.
The plaintiff tendered the documents in evidence. No evidence was produced on behalf of the defendants despite having been of granted three adjournments; hence, the evidence was closed by the order of the Court.
7. rt The Learned Trial Court held that the plaintiff is recorded to be the owner in possession of the suit land in the revenue record, which carries with it a presumption of correctness. The defendants did not lead any evidence to rebut the presumption. The defendant no. 1 admitted the possession of the plaintiff by filing a suit for possession against the plaintiff.
He failed to provide any evidence showing that the possession was wrongly delivered to the plaintiff. Hence, the plaintiff was entitled to restrain the defendants from interfering with his possession. Learned Trial Court answered issue no. 1 in the affirmative, issues no. 2 and 3 in the negative and decreed the suit.
::: Downloaded on - 20/10/2023 20:39:44 :::CIS 58. Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendants filed an .
appeal, which was decided by the learned District Judge, Kinnaur at Rampur. Learned First Appellate Court held that the defendants did not appear in the witness box and their plea that the suit was barred by Section 10 of CPC was not acceptable. The of copy of the plaint in the suit filed by defendant No.1 shows that he has sought the relief of possession. The nature of relief in rt that suit and the present suit are different and the provisions of Section 10 is not attracted to the present case. No evidence was led to prove that the revenue agency had not prepared the instrument of partition and the plea that delivery of the possession was not as per the law was not acceptable. The learned Trial Court had granted sufficient opportunities to the defendants to lead evidence but they failed to lead any evidence;
therefore, the learned Trial Court was justified in closing the evidence of the defendants by the order of the Court. There was no mis-appreciation of evidence. Hence, the appeal was dismissed.
9. Being aggrieved from the judgments and decrees passed by the learned Courts below, the defendants filed the ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 6 present appeal asserting that the learned Courts below did not properly appreciate the material evidence and pleadings on .
record. The judgments are based upon conjectures and surmises.
The present suit is barred as per the provisions of Section 10 of CPC and a civil suit was pending between the parties regarding the same Khasra number. Learned Trial Court should have of stayed the present suit or should have taken both the suits together for consideration. The relevant record was not properly rt appreciated and no proper opportunity for leading evidence was granted to the defendants. No instrument of partition was prepared and the possession was wrongly delivered to the plaintiff. His possession was not lawful and the learned Courts below erred in granting the injunction.
10. The appeal was admitted on the following substantial question of law vide order dated 23.3.2005:-
1. Whether the learned Courts below was rightly in closing the evidence of the present appellants by the order of the court?
11. I have heard Ms. Ruma Kaushik, learned counsel for the appellants/defendants and Mr. Ajay Sharma, learned Senior Counsel assisted by Mr. Atharv Sharma, Advocate, for the respondent/plaintiff.
::: Downloaded on - 20/10/2023 20:39:44 :::CIS 712. Ms. Ruma Kaushik, learned Counsel for the appellants/defendants submitted that the learned Trial Court .
erred in closing the evidence of the defendants. A proper opportunity was not afforded to the appellants/defendants to lead evidence. There was no legally admissible evidence to decree the suit; hence, she prayed that the present appeal be of allowed.
13. rt Mr. Ajay Sharma, learned Senior Counsel supported the judgments and decrees passed by learned Courts below. He submitted that proper opportunity was granted to the defendants to lead the evidence but they failed to avail the same.
Hence, no error was committed by the learned Trial Court in closing the evidence. There is no substantial question of law in the present appeal and the same be dismissed.
14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
Substantial Question of Law:
15. Order 17 Rule 1 of CPC deals with the adjournment and reads as under:-
::: Downloaded on - 20/10/2023 20:39:44 :::CIS 81. 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.
16. It is apparent from the bare perusal of the provision that the adjournment can be granted on sufficient cause being of shown and the Court cannot grant more than three adjournments to a party during the hearing of the suit. It was rt laid down by Allahabad High Court in Chandra Prakash Ojha v.
District Judge, Bareli 2004 SCC OnLine All 26 that Order 17 Rule 1 of CPC specifically provides that no adjournment shall be granted more than three times during the hearing of the suit and even three adjournments cannot be granted as a matter of right.
It was observed:-
"4. It may be mentioned that under Order 17, Rule 1 C.P.C.
it is specifically provided that no adjournment shall be granted more than three times during hearings of suits. In our opinion even these 3 adjournments cannot be claimed as of right as adjournment is in the discretion of the Court, and cannot be claimed as of right."
17. Delhi High Court held in Jasbir Sobti v. Surender Singh, 2008 SCC OnLine Del 845 that adjournments cannot be granted in the interest of justice. It was observed:
::: Downloaded on - 20/10/2023 20:39:44 :::CIS 96. The question that arises for consideration is as to whether another opportunity is to be given to the plaintiffs under the cloak of 'in the interest of justice'.
.
The answer to this question would lie in replying to the related question, namely, whether the interest of justice demands that the case be decided on merits even when there are lapses galore on the part of the plaintiffs in not prosecuting the case diligently thereby delaying the process endlessly. We are afraid, in the name of justice, that no such licence can be given to the plaintiffs. No of doubt, if there is a minor procedural lapse, that can be condoned and the main purpose of the Court is to see that such cases are decided on merits. However, that would not mean that the plaintiffs or the defendants are allowed rt to drag on the proceedings unnecessarily by taking adjournments continuously. Again that does not mean that the parties do not take steps in further progress of/the case, namely, fail to file the documents, conduct admission/denial and even fail to appear repeatedly.
Wehave to keep in mind the interest of the opposing party as well. If the matter is dragged like this and the opposing party is made to appear on each date and asked to come on the next date only because nobody is appearing on behalf of the plaintiffs, it causes unnecessary harassment to the opposite party as well. Therefore, in all such matters, the Court is under a duty to weigh the interests of both parties and maintain balance in so far as these conflicting interests are concerned.
7. The problem of arrears in the Indian courts is well known. We have 30 million cases pending in the various District Courts and the High Courts. Many attempts are being made to clear these arrears and to ensure that the cases are decided speedily and there is no unnecessary delay in the disposal of these cases. If the proceedings in a particular case linger until the judgment is delivered and the case is decided after a number of years, the adverse effects of this are well known. No doubt, if we have the ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 10 dictum 'Justice hurried is justice buried' on the one hand, we cannot gloss over another equally forceful maxim 'Justice delayed is justice denied'. In a situation like this, .
callousness, indifference and laxity on the part of the plaintiffs in pursuing the suit cannot be tolerated. It cannot be the privilege of the plaintiffs to file a suit and not to prosecute it or enter an appearance or keep the matter pending indefinitely. A Division Bench of this Court of which one of us (A.K. Sikri, J) was the party had the occasion to deal with precisely this very aspect in of greater detail in the case of Naresh Chand Gupta v. Braham Prakash, (2007) 97 DRJ 193. Our purpose would be served in extracting the following portion therefrom:-
rt "11. In The Executive Engineer v. Machinery Parts Corporation, 129 (2006) DLT 629: 2006 (90) DRJ 379 [DB], this Court had an occasion to deal with almost similar situation and the Court was of the view that adjournments cannot be granted on mere asking of the parties for the purpose of evidence. This judgment was also affirmed by the Division Bench of this Court in Supreme Telecommunication Ltd. v. RPG Transmission Ltd., 2006 (6) AD (Delhi 375: 2006 (89) DRJ 520. The following extract from this judgment, wherein judgments of other High Courts are also taken note of and discussed, is worth quoting:
"The conduct of the defendants before the Court was of such a nature that the order passed by the learned Trial Court would not call for any interference. Furthermore, the court cannot keep on adjourning the case for evidence of the parties indefinitely and grant adjournments at the mere asking of the parties, without any plausible cause or reason. Reference in this regard can be made to the judgments in the cases of Chander Singh v. Chottulal AIR 1994 Raj 186 and Sarjeet Kaur v. Gurmail Singh 1999 (3) PLR 402 ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 11 (Vol.123). In the case of Sarjeet Kaur (supra), the Court held as under:
The language of the impugned order .
clearly shows that the plaintiff had exhausted all limits for seeking adjournment on every score, whatsoever. The very purpose of granting the last opportunity stood frustrated by a grant of six subsequent adjournments, but even then the of plaintiff neither summoned witnesses nor examined any. Wonder if there was rt any other choice left before the learned trial court but to pass the impugned order. This court had the occasion to discuss the scope of such power of the court and the consequence of persistent default on the part of the party in the trial Court, in the case of Joginder Singh v. Smt. Manjit Kaur Civil Revision No. 5885 of 1998, decided on 14.1.1999, held as under:
The cumulative effect of the provisions of Order 18 Rule 2 read with Rules 1 and 2 of Order 17 of the Code of Civil Procedure and the inherent powers of the Civil Court vested in it under Section 151 of the Code, placed an implied obligation on the Court not to adjourn the case unless the sufficient cause was shown. The cause by itself cannot always be treated as a ground for repeated adjournments. Unnecessary and avoidable adjournments must be denied by the Courts. On the one ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 12 hand, trial Courts are expected to dispose of suits and other proceedings expeditiously, and .
on the other, if parties to a lis are permitted to get the suits adjourned on the mere asking and that too for the indefinite times, it would frustrate the very spirit behind the provisions of the Code of Civil Procedure.
of Obligation on a Court cannot be read as construed in isolation. It must find its rt reasoning from the basic concept of a genuine attitude of the litigant. A litigant must help the Court by effective participation for expeditious disposal of the suit. Having taken more than six opportunities after the last opportunity was granted by the Court, the plaintiff can hardly challenge the correctness of the impugned order and more particularly on the ground that the learned trial Court has failed to exercise jurisdiction vested in it or the trial court has wrongly exercised jurisdiction.
The Rajasthan High Court in the case of Chander Singh v. Chottulal AIR 1994 Raj 186, while commenting upon the aforesaid provisions of the Code, held as under:
It is clear from the order sheet of the case that the learned trial Court repeatedly adjourned the case in utter disregard of the provisions of Order 17, Rule 1, CPC Its provisos (b) and (c) run as under:
(b) no adjournment shall be granted at the request of a party, except where the ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 13 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.
Such a liberal attitude of the trial Courts is mainly responsible for the huge arrears of cases and inordinate delay in their disposal. The learned trial Court should have closed the of defendant's evidence much earlier. It had acted illegally in granting said adjournments to the defendant. It has not acted illegally or with rt material irregularity in the exercise of its jurisdiction in any manner in passing the impugned order.
The conduct of the plaintiff-petitioner in no way demands the exercise of judicial discretion in the Court in his favour on the grounds of equity or legal maxims. Prudent reasoning leads one to no other conclusion but to one that the learned trial Court was fully justified and in fact, was left with no alternative other than closing the evidence of the petitioner."
12. Again, in Uttar Pradesh State Bridge Cor. v. Overseas Water Proofing Corpn., 2006 (130) DLT 182, the Court expressed its anguish and concern over the tendency of the parties to drag the proceedings in the following terms:
"8. Lately, it has been noticed by this Court that there is a great tendency to drag proceedings by filing frivolous applications and/or seeking adjournment on grounds of non-availability of counsel as also misusing the courtesy extended to counsel by courts of passing-over matters when called out. Another ground ordinarily pressed into ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 14 service is that counsel is busy in a higher court. The sum total is that cases drag on from year to year and each adjournment adds .
to arrears. The backlog increases to the extent that the daily board becomes unmanageable. Even in this Court six to seven cases every day are filed for condoning defaults. Each time a petition for condoning default is brought before the High Court it takes on an average six hearings for it to be of disposed of while the case in the trial court comes to a standstill. All this is done in the name of justice to the litigant in spite of the default of lawyers.
rt
9. In the present case, instead of proceeding with the matter after default was condoned on costs imposed, an application was moved for waiving costs, obviously, only to delay proceedings. Having carefully considered the facts of this case, this Court is of the opinion that ends of justice demand a speedy trial which cannot be allowed to be defeated by the so-called tricks of trade. Courts must firmly put down the practice of frivolous adjournments and move ahead with cases so that the same are disposed of as quickly as possible. This of course does not mean that no adjournment will be granted but adjournments should be granted only in exceptional cases by adopting a more rational approach. This is the only method of managing workload and disposing of cases in shorter duration."
13. Order 17 of the Code of Civil Procedure in its unamended form was commented upon by the Apex Court in Bashir Ahmed v. Mehmood Hussain Shah, AIR 1995 SC 1857, in the following words:
"The Rule thus indicates that protraction of trial of the suit should not be encouraged and the court shall try the suit as expeditiously as ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 15 possible. If the adjournment has occasioned on any sufficient ground, then it may, in an appropriate case, adjourn to a shorter date .
asking the party seeking adjournment to pay costs incurred by the party who got the witnesses produced and was ready to proceed with trial."
14. Delay which occurs due to unnecessary adjournments on the part of one or the other party has been a matter of concern by the judiciary and of legislature alike. Sweeping and important amendments were made in the Code of Civil Procedure with the purpose of ensuring the speedy rt disposal of cases. In the process, Order 17 of the Code of Civil Procedure was also amended. Though there was no provision for granting adjournments for recording the evidence earlier, the amendment now provides that a party shall not be granted adjournment more than three times during the hearing of the suit. The purpose obviously is to put a cap on the number of adjournments which the parties take in adducing the evidence. In Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353, the Supreme Court commented upon these amendments in Order 17 Code of Civil Procedure in the following words:
29. Order XVII of the Code relates to grant of adjournments. Two amendments have been made therein. One that adjournment shall not be granted to a party more than three times during the hearing of the suit. The other relates to the cost of adjournment. The awarding of cost has been made mandatory.
Costs that can be awarded are of two types. First, cost occasioned by the adjournment and second such higher cost as the court deems fit.
::: Downloaded on - 20/10/2023 20:39:44 :::CIS 1630. While examining the scope of proviso to Order XVII Rule 1 that more than three adjournments shall not be granted, it is to be .
kept in view that proviso to Order XVII Rule 2 incorporating Clauses (a) to (e) by Act 104 of 1976 has been retained. Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The proviso to Order XVII Rule 1 and of 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 rt case, there is no restriction on the 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 a 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 a 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 the restriction of three adjournments as provided in the proviso to Order XVII Rule 1.
31. In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, and devastation on account of the Tsunami).
::: Downloaded on - 20/10/2023 20:39:44 :::CIS 17Ultimately it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or .
refuse adjournment. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted. Ordinarily, where the costs or higher costs are awarded, the same should be realistic and as far as of possible actual cost that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable but is being granted on account of either rt negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save proviso to Order XVII Rule 1 from the vice of article 14 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court in the extremely hard cases noted above. The limitation of three adjournments would not apply where adjournment is to foe granted on account of circumstances which are beyond the control of a party. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the Court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. (Emphasis added We may, however, add that grant of any adjournment let alone first, second or third adjournment is not a right of a party. The ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 18 grant of adjournment by a court has to be on a party showing special and extraordinary circumstances. It cannot be in a routine.
.
While considering prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments.") Guided by these considerations as well, we are of the opinion that the learned trial court was right in refusing to grant further adjournment and rightly of closed evidence of the appellant.
15. Learned counsel for the appellant had referred to the judgment of the Division Bench of this Court rt in Malhan Builders, v. Durkhanie Jadran, 2006 (91) DRJ 106 (DB). However, weare of the opinion that this judgment would not come to the rescue of the appellant. In that case, also the evidence of the plaintiff was closed. The Division Bench held that the Court was entitled to proceed with the case and to give decisions on merits. The plaintiff was, however, given one opportunity to lead evidence only because of the reason that witness had appeared three times on earlier occasions but it was the defendant who had avoided cross-examining him and further on the particular day when evidence was closed witness was disabled due to illness of his mother. In the present case, the defendant has not taken any undue advantage or adjournment by avoiding to cross- examine the witness. It is the witness who did not appear at most of the hearings. He had not appeared before 3.10.2001 which led to adjournments. Even when he appeared on one or two occasions, the request was made by the plaintiff for adjournment either on the ground that counsel was not available or the witness was not in a position to give the evidence because of his so-called illness. Even on 3.10.2001, when the examination-in-chief of PW1 was recorded ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 19 and the defendant partly cross-examined the said witness, further cross-examination had to be deferred because of the non-availability of the .
plaintiff's counsel. Further, as already noted above, even on the particular day i.e. 1.3.2002, when the evidence was closed, the trial court found that a false plea regarding the illness of the witness was taken."
18. Similarly, it was held by this Court in Shamsher Singh v. Surat Singh, 2019 SCC OnLine HP 2298 that if a party does not of lead the evidence despite repeated opportunities granted to it, then the Court is not supposed to wait infinitely for the party to rt lead its evidence. It is a conscious act of a party not to lead its evidence and the consequences thereof have to be borne by the party. It was observed:-
"4. Having heard learned Counsel for the parties and having perused the judgments and decrees passed by the learned Trial Court as well as the learned Appellate Court alongwith the record of the case, in my considered view, the judgment passed by the learned Appellate Court is not sustainable in law. It is a matter of record that the evidence of the defendant was closed by the learned Trial Court after affording him more than three opportunities to lead evidence. If a party does not lead evidence despite reasonable opportunities granted to it, then the Court is not supposed to wait till eternity for the party to lead its evidence. It is a conscious act of a party not to lead its evidence and the consequences thereof have to be borne by the party. This extremely important aspect of the matter has not been taken into consideration by the learned Appellate Court while ordering that the defendant be granted an opportunity to lead evidence." (Emphasis supplied) ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 20
19. It was held in Ishwarlal Mali Rathod v. Gopal, (2021) 12 SCC 612 : (2023) 2 SCC (Civ) 625: 2021 SCC OnLine SC 921 that .
grant of repeated adjournments without any justification is not proper. It was observed at page 616:
8. Grant of repeated adjournments in a routine manner and how it ultimately affects the justice delivery system of as such came to be considered by this Court in a catena of decisions and asking/granting of repeated adjournments have been repeatedly condemned by this Court. 8.1. In Shiv rt Cotex v. Tirgun Auto Plast (P) Ltd. [Shiv Cotex v. Tirgun Auto Plast (P) Ltd., (2011) 9 SCC 678 : (2011) 4 SCC (Civ) 817], it is observed and held in paras 14 to 17 as under : (SCC pp. 682-83) "14. ... 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. In the cases where the Judges are little proactive 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 the justice delivery system and realise 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 ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 21 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 CPC. Adjournments have grown like cancer corroding the entire body of the justice delivery system....
17. ... 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--
of whether the plaintiff or the defendant--must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been rt fixed. If they do not, they do so at their own peril." 8.2. Commenting on the delay in the justice delivery system, although in respect of the criminal trial, Krishna Iyer, J. in Babu Singh v. State of U.P. [Babu Singh v. State of U.P., (1978) 1 SCC 579: 1978 SCC (Cri) 133] has observed in para 4 as under : (SCC p. 581) "4. ... Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to "fair trial", whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings." 8.3. In Noor Mohammed v. Jethanand[Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754], using very harsh words and condemning the repeated adjournments sought by the lawyers and granted by the courts, this Court has observed in paras 1, 12, 13, 27 and 28 as under : (SCC pp. 206-07, 209-10 & 215-16) "1. In a democratic body polity which is governed by a written Constitution and where the Rule of Law is paramount, the judiciary is regarded as a sentinel on the qui vive not only to protect the fundamental rights ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 22 of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the .
constitutional system are not atrophied. Sacrosanctity of the Rule of Law neither recognises a master and a slave nor does it conceive of a ruler and a subject but, in quintessentiality, encapsules and sings in the glory of the values of liberty, equality and justice in accordance with the law requiring the present generation to have the responsibility to sustain them of with all fairness for the posterity ostracising all affectations. To maintain the sacredness of democracy, sacrifice in the continuum by every rt member of the collective is a categorical imperative. The fundamental conception of democracy can only be preserved as a colossal and priceless treasure where virtue and values of justice rule supreme and intellectual anaemia is kept at bay by constant patience, consistent perseverance, and argus-eyed vigilance. The foundation of justice, apart from other things, rests on the speedy delineation of the lis pending in courts. It would not be an exaggeration to state that it is the primary morality of justice and the ethical fulcrum of the judiciary. Its profundity lies in not allowing anything to cripple the same or to do any act which would freeze it or make it suffer from impotency. Delayed delineation of a controversy in a court of law creates a dent in the normative dispensation of justice and in the ultimate eventuate, the Bench and the Bar gradually lose their reverence, for the sense of divinity and nobility really flows from the institutional serviceability. Therefore, historically, emphasis has been laid on individual institutionalism and collective institutionalism of an adjudicator while administering justice. It can be stated without any fear of contradiction that collective collegiality can never be regarded as an alien concept to the speedy ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 23 dispensation of justice. That is the hallmark of duty, and that is the real measure.
*** .
12. The proceedings in the second appeal before the High Court, if we allow ourselves to say so, epitomise the corrosive effect that adjournments can have on litigation and how a lis can get entangled in the tentacles of an octopus. The philosophy of justice, the role of a lawyer and the court, the obligation of a litigant and all legislative commands, the nobility of of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make way for apathy and indifference when delay of rt the present nature takes place, for procrastination on the part of anyone destroys the values of life and creates a catastrophic turbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralysed by adjournments and non-demonstration of due diligence to deal with the matter. One cannot be oblivious to the feeling of necessities of the time. No one can afford to sit in an ivory tower. Neither a Judge nor a lawyer can ignore "the total push and pressure of the cosmos". It is devastating to expect infinite patience. Change of attitude is the warrant and command of the day. We may recall with profit what Justice Cardozo had said:
"It is true, I think, today in every department of the law that the social value of a rule has become a test of growing power and importance." [Benjamin N. Cardozo, The Nature of Judicial Process (Cosimo Inc., 2009) 73]
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 the rule of law is the centripodal concern and delay in the delineation and disposal of ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 24 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".
***
27. The anguish expressed in the past and the role ascribed to the Judges, the lawyers and the litigants is of a matter of perpetual concern and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. rt Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact are like a disorderly state of the physical frame of a man suffering from an incurable and fast progressive malignancy. Delay either by the functionaries of the court or the members of the Bar significantly exhibits indolence and one can aphoristically say, borrowing a line from Southwell "creeping snails have the weakest force [ Robert Southwell, "Loss in Delay", in William B. Turnbull (Ed.), The Poetical Works of the Rev. Robert Southwell (John Russell Smith, London 1856), p. 60] ". Slightly more than five decades back, talking about the responsibility of the lawyers, Nizer Louis had put thus:
'I consider it a lawyer's task to bring calm and confidence to the distressed client. Almost everyone who comes to a law office is emotionally affected by a problem. It is only a matter of degree and of the client's inner resources to withstand the pressure [ Nizer Louis, My Life in Court (Doubleday & Co. Inc., New York 1961), p. 213] .' ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 25 A few lines from the illustrious Justice Frankfurter is fruitful to recapitulate:
'I think a person who throughout his life is nothing .
but a practising lawyer fulfils a very great and essential function in the life of society. Think of the responsibilities on the one hand, and the satisfaction on the other, to be a lawyer in the true sense [ Felix Frankfurter, "Proceedings in Honor of Mr Justice Frankfurter and Distinguished Alumni, of Occasional Pamphlet No. 3" (Harvard Law School, Cambridge, 1960), pp. 45] .'
28. In a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and rt pivotal concern. Delay gradually declines the citizenry's faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect- potentiality to bring in a state of cataclysm where justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of the time at the altar of reason. Timely delivery of justice keeps the faith ingrained and establishes sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice-dispensation system cannot be allowed to remotely conceive of a casual approach."
8.4. In the aforesaid decision [Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754], this ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 26 Court also considered the role of the advocate in the justice delivery system and considered the earlier decisions in paras 17 to 22 which read as under : (Noor .
Mohammed case [Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754], SCC pp. 212-14) "17. In Ramon Services (P) Ltd. v. Subhash Kapoor [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118: 2001 SCC (Cri) 3: 2001 SCC (L&S) 152], after referring to a passage from Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. [Mahabir Prasad of Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37], the Court cautioned thus : (Ramon Services case [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118:
rt 2001 SCC (Cri) 3: 2001 SCC (L&S) 152], SCC p. 126, para
15) '15. ... Nonetheless, we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self-
imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate's non-appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has the power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability.' ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 27 Be it noted, though the said passage was stated in the context of a strike by the lawyers, yet it has its accent on non-appearance by a counsel in the court.
.
18. In this context, we may refer to the pronouncement in P.D. Khandekar v. Bar Council of Maharashtra [P.D. Khandekar v. Bar Council of Maharashtra, (1984) 2 SCC 556: 1984 SCC (Cri) 335], wherein the Court observed that : (SCC p. 563, para 9) '9. ... An advocate stands in a loco parentis towards of the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succour in times of rt need.'
19. In S.J. Chaudhary v. State (Delhi Admn.)[S.J. Chaudharyv. State (Delhi Admn.), (1984) 1 SCC 722: 1984 SCC (Cri) 163], a three-Judge Bench, while dealing with the role of an advocate in a criminal trial, has observed as follows : (SCC pp. 723-24, para 3) "3. We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his advocate is finding it difficult to attend court from day to day. It is the duty of every advocate, who accepts the brief in a criminal case to attend the trial from day to day. We cannot over-stress the duty of the advocate to attend to the trial from day to day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend."
20. In Mahabir Prasad Singh [Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37], the Bench, laying emphasis on the obligation of a lawyer in his duty towards the Court and the duty of the Court to the Bar, has ruled as under : (SCC p. 44, paras 17-18) '17. ... "A lawyer is under obligation to do nothing that shall detract from the dignity of the court of ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 28 which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the Judge, and scrupulously observe the decorum of the .
courtroom." (Warevelle's Legal Ethics, p. 182)
18. Of course, it is not a unilateral affair. There is a reciprocal duty for the court also to be courteous to the members of the Bar and to make every endeavour for maintaining and protecting the respect which members of the Bar are entitled to have from their clients as well as from the litigant public. Both the of Bench and the Bar are the two inextricable wings of the judicial forum and therefore the aforesaid mutual respect is sine qua non for the efficient functioning of rt the solemn work carried on in courts of law. But that does not mean that any advocate or a group of them can boycott the courts or any particular court and ask the court to desist from discharging judicial functions. At any rate, no advocate can ask the court to avoid a case on the ground that he does not want to appear in that court.'
21. While recapitulating the duties of a lawyer towards the court and society, being a member of the legal profession, this Court in O.P. Sharma v. High Court of P&H [O.P. Sharma v. High Court of P&H, (2011) 6 SCC 86 : (2011) 3 SCC (Civ) 218 : (2011) 2 SCC (Cri) 821 : (2011) 2 SCC (L&S) 11] has observed that : (SCC p. 92, para 17) '17. The role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nation's administration was to be governed by the rule of law.' The Bench emphasised the role of eminent lawyers in the framing of the Constitution. The emphasis was also laid on the concept that lawyers are the officers of the court in the administration of justice.
::: Downloaded on - 20/10/2023 20:39:44 :::CIS 2922. In R.K. Garg v. State of H.P. [R.K. Garg v. State of H.P., (1981) 3 SCC 166: 1981 SCC (Cri) 663], Chandrachud, C.J., speaking for the Court pertaining to the relationship .
between the Bench and the Bar, opined thus : (SCC p.
170, para 9) '9. ... the Bar and the Bench are an integral part of the same mechanism which administers justice to the people. Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them. It ought to be a of matter of equal pride to the Bar. It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy rt must begin with the Judge. A discourteous Judge is like an ill-tuned instrument in the setting of a courtroom. But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.' "
9. Today the judiciary and the justice delivery system are facing the acute problem of delay which ultimately affects the right of the litigant to access to justice and the speedy trial. Arrears are mounting because of such delay and dilatory tactics and asking for repeated adjournments by the advocates and mechanically and in routine manner granted by the courts. It cannot be disputed that due to delay in access to justice and not getting timely justice, it may shaken the trust and confidence of the litigants in the justice delivery system. Many a time, the task of adjournments is used to kill justice. Repeated adjournments break the back of the litigants. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system and shakes the faith of the common man in the justice dispensation ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 30 has to be discouraged. Therefore the courts shall not grant the adjournments in a routine manner and mechanically and shall not be a party to cause for delay in .
dispensing the justice. The courts have to be diligent and take timely action in order to usher in an efficient justice dispensation system and maintain faith in the rule of law.
10. We are also aware that whenever the trial courts refuse to grant unnecessary adjournments many a times they are accused of being strict and they may face the displeasure of the Bar. However, the judicial officers shall of not worry about that if his conscience is clear and the judicial officer has to bear in mind his duties to the litigants who are before the courts and who have come for rt justice and for whom the courts are meant and all efforts shall be made by the courts to provide timely justice to the litigants.
20. In the present case, the record of the learned Trial Court shows that the matter was listed for the evidence of the defendants on 3.6.2003, however, no witness was produced.
Steps were also not taken. The defendants were directed to take steps within seven days and the witnesses were ordered to be summoned for 2.7.2003. Again no evidence was produced and adjournment was sought. The Court expressly made clear that it was granting the last adjournment and directed that the entire evidence of the defendants be produced on self-responsibility on 6.8.2003. On 6.8.2003, the witnesses were not present. An application for adjournment was filed, which was allowed and the defendants were directed to produce the evidence on ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 31 3.9.2003. Again, no evidence was produced on 3.9.2003 and the Court noticed that sufficient opportunity was granted to the .
defendants to produce their evidence, but the evidence was not produced. Hence, the evidence was closed by the order of the court.
21. The learned Trial Court granted three adjournments of and made it expressly clear on 2.7.2003 that it was granting the rt last opportunity to the defendants. Even thereafter, the Court granted the adjournment on 6.8.2003 at the instance of the defendants; however, the evidence was not produced and no reasonable cause was shown for the non-production of the evidence on 3.9.2003. Therefore, in these circumstances, the learned Trial Court was justified in not granting the adjournment and closing the evidence of the defendants by the order of the Court.
22. This Court has already pointed out that the Court cannot be expected to wait indefinitely for the parties to lead the evidence. The legislature has purposely curtailed the number of adjournments to three so that cases are disposed of expeditiously. The Courts cannot act in breach of the law which ::: Downloaded on - 20/10/2023 20:39:44 :::CIS 32 they are bound to uphold. When three adjournments had already been granted and no reasonable cause was assigned for seeking .
an adjournment, the Court had no option but to close the evidence and it cannot be said that the Court had acted wrongly in closing the evidence of the defendants. Therefore, this substantial question of law is answered against the appellant.
of Final order:
23. In view of the above, the present appeal fails and the rt same is dismissed, so also pending miscellaneous application(s), if any.
(Rakesh Kainthla) Judge 20th October, 2023 (Chander) ::: Downloaded on - 20/10/2023 20:39:44 :::CIS