Rajasthan High Court - Jaipur
Gajanand And Anr vs Addi Civil Judge (J D ) And Ors on 14 March, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No. 2939/2012 S.B. Civil Misc. Stay Application No 2432/2012 (Gajanand & Another Versus Additional Civil Judge & Others) Date of Order :: 14th March, 2012 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Rajesh Kala, counsel for the petitioners Mr. Laxmi Narain, respondent-defendant no.2 is present in person BY THE COURT:
REPORTABLE By way of the instant writ petition, the petitioners-plaintiffs have beseeched to quash and set-aside the order dated 31.1.2012, whereby the learned Additional Civil Judge (Jr. Division) No.2, Jaipur District, Jaipur closed the evidence of the petitioners-plaintiffs.
2. Shorn of unnecessary details, the facts of the case are that the petitioners-plaintiffs filed a suit for declaration and permanent injunction against the defendants in the court of Civil Judge (Jr. Division), Jaipur District, Jaipur with regard to a double storied house situated in Village Bhanpur Kalan, which had been in their continuous possession for the last 100 years since the time of their ancestors. It is alleged that the property of defendants no. 1 and 2 Shri Ram Sahai, who was Sarpanch in Gram Panchayat, Bhanpur Kalan in collusion with the defendants no. 1 and 2 issued a patta of the said house in favour of defendants no. 1 and 2 on 20th March, 2003. Apprehensive of the fact that the defendants will oust them, they filed a suit for declaration and permanent injunction imploring the Court that the defendants no. 1 and 2 may be restrained from not taking possession of the house of the petitioners-plaintiffs perforce. Having obtained the written statement of the defendants, the learned trial court settled the issues and fixed the case for recording the statement of the plaintiffs. Ample opportunity was given to the plaintiffs for producing the evidence, but the plaintiffs did not produce the evidence in support of their case and implored for further adjournment with a view to procrastinate the trial of the suit. Finally the learned trial court closed the evidence on 21.12.2011. The petitioners-plaintiffs filed an application under Order 18 Rule 2 readwith Section 151 CPC praying that the evidence was closed on the last date of hearing, but in the interest of justice, the plaintiffs may be granted one and the last opportunity to produce evidence in support of their case. The learned trial court dismissed this application also on 31st January, 2012. Hence, this writ petition.
3. Heard the learned counsel for the pettioners and carefully perused the relevant material on record including the impugned order.
4. Learned counsel for the petitioners reiterating the grounds taken in the writ petition canvassed that the plaintiffs had already filed the affidavits of petitioner Gajanand in evidence on 9.7.2007 and thereafter the affidavit of another witness Tara Chand on 31.7.2007, but on some occasions, on account of the change of Advocate and on some other occasions, due to the disposal of few applications filed by the plaintiffs and other applicants, the evidence could not be recorded by the court and the case was being fixed intermittently for the evidence of the plaintiffs. On 21.12.2011, the witness of plaintiff Smt. Radha Devi (mother of the plaintiff) was present in the Court for evidence, but the learned Presiding Officer was on half day leave till lunch and the court commenced functioning at 3.30 PM. By that time, the counsel for the plaintiffs had left the court premises due to some urgent work. The plaintiffs requested the learned trial court to mark the appearance of Smt. Radha Devi and adjourned the case, but without paying any heed to the request of the plaintiffs, their evidence was closed. The petitioners-plaintiffs again filed an application imploring to open plaintiffs' evidence and grant one last opportunity in the interest of justice, but that application was also dismissed by the Court. Learned counsel finally prayed that the only one and the last opportunity may be granted to the petitioners to produce the evidence so as to meet the ends of justice.
5. Having reflected over the submissions made by learned counsel for the petitioners and carefully scanned the impugned order, it is revealed that on the basis of pleadings, the court settled the issues on 26.2.2007 and adjourned the case to 15.3.2007 for recording the evidence of plaintiffs, but on that day none appeared in evidence. On the contrary, the plaintiff-petitioners filed an appliation under Order 7 Rule 14 CPC on 9.4.2007, which was decided by the court on 19.5.2007. The case was again adjourned for plaintiffs' evidence on 9.7.2007, but affidavit of Gajanand was filed and thereafter on 31.7.2007, the plaintiff Gajanand filed the powers of his Advocate Santosh Pal Meena together with the affidavit of witness Tara Chand. On 21.9.2007, 25.10.2007, 28.11.2007, 20.12.2007, none appeared for the plaintiffs' evidence. The learned trial court is found to have passed the impugned order with great details of the adjournments and it is revealed that the suit remained pending for plaintiffs' evidence with effect from 15th March, 2007 to 21st December, 2011. Thus, it remained pending for more than 5 years and the trial court granted 20 adjournments merely for recording the evidence of the plaintiffs. It is also found that not only once, but the plaintiff just with a view to procrastinate the trial of the suit filed numerous applications, some times under Order 1 Rule 10 CPC and on some occasions under other provisions of CPC. The trial court is also found to have observed that the plaintiff, by hook or by crook, intended to protract the trial of the suit and keep it alive as much as long. A perusal of the impugned order also reveals that on 14.7.2009, the court granted last opportunity to produce the evidence and posted the case for 17.7.2009, but on that day again, one application under Order 7 Rule 14 and another application under Section 151 CPC came to be filed. Thus, it is tangible from the order sheets recorded by the trial court from time to time that either on the date when the case was fixed for recording the evidence of the plaintiffs, one or the other application under the provisions of CPC was filed by the plaintiffs or they expressed their inability to give the statements on account of ill health. Prime object of the plaintiffs always had been to linger on the proceedings of the suit. In such cases, when the evidence is not adduced by the parties, the Hon'ble Apex Court has repeatedly cautioned the trial court not to be sympathetic and condemned the grant of unnecessary adjournments.
6. In the case of M/s. Shiv Cotex Versus Tirgun Auto Plast P. Ltd. & Others reported in 2011 AIR SCW 5789, similar were the circumstances and the case was being again and again adjourned for recording the plaintiffs' evidence. As a matter of fact, the trial court had granted more than sufficient adjournments to the plaintiffs to produce evidence in support of their case. After the issues were framed on July 19, 2006, on three occasions, the trial court fixed the matter for plaintiffs' evidence, but on none of these dates any evidence was let in by them. The Hon'ble Apex Court posed the question as to what should the Court do in such circumstances? The Hon'ble Apex Court bitterly deprecated the leisurely practice of the parties in seeking adjournments after adjournments for producing the evidence. The Hon'ble Apex Court observed thus:
On three occasions, the trial court fixed the matter for the plaintiff's evidence but on none of these dates any evidence was let in by it. What should the court do in such circumstances? 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? 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 pro-active 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 justice delivery system and realize that adjournments do dent the efficacy of 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 courts, must ensure that on every date of hearing, effective progress takes place in the suit.
7. Otherwise too, the Hon'ble Apex Court has consistently condemned the leisurely practice of the parties in seeking adjournments for producing the evidence. In the case of M/s. Shiv Cotex (supra), the Hon'ble Apex Court has further held thus:
16.No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII, Rule 1, CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII, Rule 1, CPC should be maintained. When we say 'justifiable cause' what we mean to say is, a cause which is not only 'sufficient cause' as contemplated in sub-rule (1) of Order XVII, CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. 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 whether plaintiff or defendant must co-operate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, no evidence was let in by the plaintiff, in our view, it deserved no sympathy in second appeal in exercise of power under Section 100, CPC. We find no justification at all for the High Court in upsetting the concurrent judgment of the courts below. The High Court was clearly in error in giving the plaintiff an opportunity to produce evidence when no justification for that course existed.
8. It is relevant to note that the scope of Article 227 of the Constitution is very limited. The Hon'ble Apex Court has consistently held in plethora of cases that the extra-ordinary jurisdiction under Article 227 of the Constitution can be invoked by the High Court only when the impugned order is found to be perverse, contrary to material or it results in manifesting injustice. It has also been repeatedly held by the Hon'ble Apex Court that the High Court while exercising extra-ordinary jurisdiction should escape from interfering with the impugned orders of the courts below and such powers should be exercised sparingly and not in routine. It is also settled law that the High Court should be very slow in upsetting the pure finding of facts.
9. This petition has been filed under Article 227 of the Constitution of India. In the case of Shalini Shyam Shetty and Another Versus Rajendra Shankar Patil reported in (2010) 8 Supreme Court Cases 329, their Lordships of Hon'ble Apex Court have held that the power under Article 227 of the Constitution of India is a reserved and exceptional power for judicial intervention to be exercised not merely for the grant of relief in any even of the case, but only to be directed for the promotion of public confidence in the administration of justice. It has been held that the power is unfettered, but subject to high degree of judicial discipline and interference is to be kept at the minimum.
10. If viewed the case of the petitioners-plaintiffs from above angle, in the light of the aforesaid judgment of Hon'ble Apex Court, it is found that the learned trial court had not only granted more than three adjournments to the plaintiffs to produce witnesses, but the court granted as many as 20 adjournments merely for producing the witnesses in support of their case, but the plaintiffs never cared to produce even a single witness for cross-examination. It is highly shocking that when the court closed the evidence on 21.12.2011, the petitioners-plaintiffs filed an application under Order 18 Rule 2 readwith Section 151 CPC on 5.1.2012 in the Court for reopening their evidence greatly highlighting the act of the Presiding Officer with regard to his proceeding on half day leave as if he had no right to avail the casual leave and had committed a sin in availing the same. The petitioners mentioned in the application that the counsel and witness Smt. Radha Devi were present in the Court upto 3.00 PM, but the Presiding Officer of the Court was on half day leave till lunch and court started functioning at 3.30 PM and prior to that at 3.00 PM, they had left the court premises and come back to their home because of some urgent work, albeit the urgent work is not mentioned in the application. Surprisingly, the learned counsel for the plaintiffs did not take any trouble even to whisper about those five years, during which the case was repeatedly adjourned for plaintiffs' evidence and the plaintiffs for one or other reason or under one or the other pretext kept on seeking adjournments after adjournments. It is sad, but true that the litigants seek and the court grant adjournments at the drop of the hat. After the evidence was closed by the court on 21.12.2012, they again moved an application under Order 18 Rule 2 readwith Section 151 CPC for reopening the evidence of the plaintiffs and when the court dismissed that application, the petitioners invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution.
11. In the final analysis, the upshot of the above discussion is that the petitioners plaintiffs are found to have left no stone unturned in procrastinating the trial of the suit. They are found to have abused not only the process of law, but are found to have abused the judicial process of court also. The learned trial court, having narrated the unending lineal of five years proceedings ad-longum, is found to have rightly dismissed the application and rightly closed the plaintiffs' evidence. The impugned order is just and proper and suffers from no infirmity. The writ petition, in contra, is found to be totally bogus, irrelevant and devoid of any substance, which deserves to be dismissed at the threshold with exemplary cost.
12. For the reasons stated above, the writ petition being bereft of any substance stands dismissed accordingly so as to cost of Rs. 25,000/-, to be paid to the defendant-respondent no.2 on the next date of hearing so fixed by the trial court.
13. It is made clear that the plaintiffs shall not be permitted to participate in the proceedings of the suit, unless the payment of cost is ascertained by the court, failing which the trial court shall proceed further and decide the suit on merits, in accordance with law.
14. Consequent upon the dismissal of writ petition, the stay application, filed therewith, does not survive and that also stands dismissed.
(MAHESH BHAGWATI),J.
Dk/-
All Corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Dilip Khandelwal Personal Assistan