Bombay High Court
Anand S/O Shaktikumar Sancheti Thr. ... vs Ganesh Jethmal Verma on 2 December, 2016
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 5169 OF 2016
Anand S/o Shaktikumar Sancheti
Aged about 44 years, Occ. Business,
R/o Bharat Nagar, Amravati Road,
Nagpur through Power of Attorney
Holder Shri Sanjay s/o Umarsi Dand
Aged about 46 years Occ. Business,
R/o Malkapur District Buldhana. ... Petitioner
// VERSUS //
Ganesh Jethmal Verma
Aged about 35 years, Occ. Agriculturist,
R/o Bhairav Chowk Shegaon Taluka
Shegaon District Buldhana. ... Respondent
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Shri A. M. Sudame, Advocate for the petitioner
Shri A. V. Bhide, Advocate for the respondent
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CORAM : PRASANNA B. VARALE, J.
DATE : 2-12-2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith.
2. Heard Shri Sudame, learned counsel for the petitioner and Shri Bhide, learned counsel for the respondent.
3. By the present petition, the petitioner challenges the ::: Uploaded on - 05/12/2016 ::: Downloaded on - 06/12/2016 00:36:17 ::: 2 jg.wp5169.16.odt orders passed by learned Civil Judge Senior Division, Khamgaon dated 20-8-2016 rejecting the application seeking adjournment and dated 6-4-2016 thereby rejecting the application seeking appointment of the Court Commissioner to record evidence of plaintiff.
4. The petitioner is the plaintiff who had instituted Special Civil Suit No. 12/2013 for specific performance of contract and the same is pending in the Court of Civil Judge Senior Division, Khamgaon. It may not be necessary to refer to the contentions and rival contentions of the parties. Suffice to say that in an earlier round, the parties were even before this Court challenging some interim orders and this Court by order dated 12-3-2014 in Appeal Against Order No. 65/2013 preferred by the petitioner-plaintiff and this Court disposed of the appeal with direction to the Trial Judge to expedite the hearing of the suit and decide the suit within stipulated period i.e. within period of one year from the date of appearance of the parties before the Court. The suit was fixed before the Court below and an application for adjournment was submitted at the instance of the present petitioner-plaintiff. It was submitted in the application that the petitioner-plaintiff attended the Court and he was in the Court till 12 O'clock, he felt uneasy and he left the Court and proceeded ::: Uploaded on - 05/12/2016 ::: Downloaded on - 06/12/2016 00:36:17 ::: 3 jg.wp5169.16.odt towards Akola. It was submitted in the application that the petitioner-
plaintiff had undergone some surgery, as such, was not keeping good health and on these grounds, the adjournment was sought for. The application was opposed on the ground that no medical certificate is annexed to the application. It was also submitted that as the matter being time framed, the application be rejected. Learned Civil Judge Senior Division observed that on earlier occasion also, the matter was adjourned at the request of the petitioner-plaintiff and along with the application, no medical certificate is annexed and further observed that the plaintiff had filed affidavit of examination-in-chief on 12-2-2016 and sufficient time was granted to the plaintiff. Learned Civil Judge Senior Division, Khamgaon further observed that the Court till 2.00 p.m. repeatedly called the parties but the plaintiff did not appear to face cross-examination and as sufficient opportunities were granted to the petitioner-plaintiff, no further opportunity is needed to be granted. The application was thus rejected.
5. Shri Sudame, learned counsel for the petitioner invited my attention to the copy of the application seeking adjournment placed on record at Annexure-VII and submitted that it was specifically submitted in the application that the petitioner was ::: Uploaded on - 05/12/2016 ::: Downloaded on - 06/12/2016 00:36:17 ::: 4 jg.wp5169.16.odt present in the Court till 12 O'clock and suddenly the petitioner felt uneasy in the Court itself and as the petitioner-plaintiff was having chest pain and sweat, he immediately left the Court premises and proceeded to Akola. Shri Sudame, learned counsel then invited my attention to the document at Annexure-VI, certificate issued by the private medical practitioner at Khamgaon dated 20-8-2016. Perusal of the said certificate shows that the petitioner-plaintiff attended the said private medical practitioner with complaint of chest pain on left side and the petitioner-plaintiff was referred to Cardiologist for further investigations and needful treatment. Thus it was the submission of Shri Sudame, learned counsel for the petitioner that absence of the petitioner-plaintiff in the Court after 12 O'clock was for such a reason which was beyond his control and was an unintentional and bonafide ground. He further submitted that the fact of sudden illness of petitioner-plaintiff brought before the Court by submitting the application seeking adjournment and the Court ought not to have taken hyper-technical approach by rejecting the adjournment application. He further submitted that the petitioner-plaintiff had approached the medical practitioner at Khamgaon and then he was advised by the medical practitioner to undergo further investigations ::: Uploaded on - 05/12/2016 ::: Downloaded on - 06/12/2016 00:36:17 ::: 5 jg.wp5169.16.odt through Cardiologist. Shri Sudame, learned counsel submitted that the examination of the petitioner-plaintiff through medical practitioner and receiving certificate certainly required some time and it was not possible either for petitioner-plaintiff to immediately submit the certificate to the counsel or the counsel, in turn, immediately placing the certificate before the Court. Shri Sudame, learned counsel then submitted that the fact remains that on the very day, the petitioner-plaintiff was examined by the medical practitioner and certificate was also issued by the medical practitioner disclosing the ill health of the petitioner and opinion of the Doctor that petitioner-
plaintiff required further examination of the Cardiologist and the investigations. Thus, learned counsel Shri Sudame prays for setting aside the order passed by learned Civil Judge Senior Division, Khamgaon rejecting the application for adjournment.
6. Shri Bhide, learned counsel for the respondent opposed the prayer of the petitioner. It is submitted by the learned counsel Shri Bhide that learned Civil Judge Senior Division committed no error in rejecting the application for adjournment as this Court directed the learned Court below to decide the matter within stipulated time frame.
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7. Considering the rival submissions of the learned counsel appearing for the parties, I am of the opinion that though this Court directed the learned trial Court to decide the matter within stipulated time frame, the learned Civil Judge Senior Division could not have adopted such a hyper technical approach on the backdrop of the peculiar facts. As stated above, the petitioner was present in the Court till 12 O'clock and at 12 O'clock suddenly, he felt uneasy and left the Court. There is also a certificate placed on record of the private medical practitioner about the requirement of the examination of the petitioner-plaintiff by Cardiologist and further investigations. Even perusal of the order passed by the learned Civil Judge Senior Division dated 20-8-2016 shows that the Court till 2.00 p.m. repeatedly called the parties and the plaintiff did not appear to face cross-examination, the application was rejected. The approach of the Court waiting only till 2.00 p.m. and passing the order at 2.00 p.m. also show that the learned Court below adopted a hyper-technical approach. On the backdrop of these peculiar circumstance, learned Court below could have certainly granted one opportunity to the petitioner-plaintiff. The order passed by the learned Civil Judge Senior Division, Khamgaon rejecting the application seeking adjournment dated 20-8-2016 thus is ::: Uploaded on - 05/12/2016 ::: Downloaded on - 06/12/2016 00:36:17 ::: 7 jg.wp5169.16.odt unsustainable. The order is thus quashed and set aside.
8. Insofar as the challenge to the order dated 6-4-2016 rejecting the application seeking appointment of Court Commissioner to record evidence of plaintiff is concerned, perusal of the material shows that the application was submitted on the ground that the petitioner-plaintiff has engaged in diverse large scale business at Nagpur and various places in India and as such, in the interest of justice, the Court Commissioner be appointed to record his evidence as he is unable to attend the Court. The ground raised in the application referred to above itself shows that the petitioner-plaintiff was before the Court with not such difficulty either physical or otherwise causing inability for him to attend the Court but the difficulty shown by the petitioner-plaintiff in the application was of his engagement in the business. On the face of the ground raised by the petitioner-plaintiff, it clearly shows that the petitioner-plaintiff was trying to put up before the Court that he was a very busy person engaged in his business activity and was unable to attend the Court because of his business activities. The Court rightly considering the application as well as the judgment relied on by the learned counsel appearing for the defendant rejected the application. The learned ::: Uploaded on - 05/12/2016 ::: Downloaded on - 06/12/2016 00:36:17 ::: 8 jg.wp5169.16.odt Court committed no error in observing that unless strong case is made out, the Court is not bound to use its discretion merely on flimsy ground as mentioned in the application. The order of learned Civil Judge Senior Division, Khamgaon dated 6-4-2016 rejecting the application needs no interference at the hands of this Court. The challenge in the petition in the said order thus fails. In the result, the writ petition is partly allowed. The order dated 20-8-2016 is quashed and set aside and the order dated 6-4-2016 is maintained.
JUDGE wasnik ::: Uploaded on - 05/12/2016 ::: Downloaded on - 06/12/2016 00:36:17 :::