Allahabad High Court
Sheetla Prasad (U/A-227) vs District Judge, Gonda & Others on 11 February, 2020
Author: Rakesh Srivastava
Bench: Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 24 Case :- MISC. SINGLE No. - 1981 of 2015 Petitioner :- Sheetla Prasad (U/A-227) Respondent :- District Judge, Gonda & Others Counsel for Petitioner :- Arvind Pratap Singh Counsel for Respondent :- U.N. Misra,Inderjeet Shukla Hon'ble Rakesh Srivastava,J.
1. The undisputed facts of the case are: Smt Patiraji, the third respondent filed a Regular Suit No. 117 of 1982, Patiraji versus Sheetla Prasad in the Court of Additional Civil Judge (Jr. Div), Court No. 8, Gonda for cancellation of sale deed and for permanent injunction against the petitioner restraining him from interfering with the peaceful possession of the third respondent over the property in dispute. In the said suit the petitioner filed his written statement. In support of her case, the third respondent examined herself as PW 1. 06.02.2015 was the date fixed for cross examination of the third respondent but instead of cross examining her, the counsel for the petitioner moved an application for adjournment. The application is extracted below:-
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2. The trial Court rejected the application for adjournment, closed the opportunity of the petitioner to cross examine the third respondent and fixed a date for cross examination of PW 2. The trial Court passed the following order:-
"Case called out. Learned counsel from plaintiff side present no one from def. side file be produced after lunch.
File produced after lunch case called. Learned counsel from plaintiff side is present. an adjournment has been moved from the defendant side at 3:00 PM on the ground that relating to the present suit a writ petition for staying the proceeding of lower court is pending before Hon'ble High Court on which due to strike no hearing could have been made & hence another date be fixed for cross examination of P.W.1 and for adjourning today's proceedings the O.P. has endorsed on the applicant as strongly opposed.
Heard & perused the records from the perusal of records. It is clears that on 22.05.2014 the def. application for staying the proceedings of this Court was rejected by the Court & there by the defendant opp. for cross examining P.W.1. Automatically closed/ ended and there by defendant moved a recall application 258C2 which was allowed by this Court giving him an opportunity to cross examine P.W.1. Thereafter two days have been passed and the defendant in both there date respectively 16.12.14 & 01.01.15 gave the adjournment application which were allowed by court on Cost. On 01.01.2015 the Court has given last opp. to cross examine P.W.1 today again the defendant after lunch has moved adjournment applicant. The def. has till date not complied with order for payment of cost also this shows that def. is interested in delaying the matter keeping into account the aforesaid facts & circumstances, the adjournment application is rejected & def. opportunity to cross examine P.W.1 is closed file is fixed on 18.02.15 for cross examination of P.W.2."
3. The revision bearing Civil Revision No. 48 of 2015, preferred by the petitioner against the said order has been dismissed by the District Judge by an order dated 06.02.2015. Both the said orders are under challenge in the present petition.
4. Sri Arvind Pratap Singh, learned counsel for the petitioner has submitted that in the interest of justice, one last opportunity be provided to the petitioner to cross examine PW 1. He submits that in case such an opportunity is not given, the petitioner would suffer irreparable loss. In support of his case the learned counsel for the petitioner has placed reliance upon the case of Bashir Ahmed v. Mehmood Hussain Shah, (1995) 3 SCC 529.
5. Sri Faiz Alam Khan holding brief of Sri Inderjeet Shukla, learned counsel for the third respondent, on the other hand has supported the order impugned and has submitted that the petitioner was adopting dilatory tactics and as such the trial Court rightly closed the opportunity of cross examination.
6. After hearing the learned counsel for the parties and on perusal of record this Court is convinced that the trial Court has committed no wrong in rejecting the application for adjournment and in closing the opportunity of the petitioner to cross examine the third respondent.
7. As is evident from the impugned order, 22.05.2014 was the date fixed for cross examination of the third respondent. On the said date, instead of cross examining the third respondent an application for staying the proceedings of the suit was moved by the petitioner. The said application was rejected by the trial Court and the opportunity of the petitioner to cross examine the third respondent was closed. The petitioner, thereafter, moved an application for recall of the order dated 22.05.2014. The said application was allowed and the petitioner was given one more opportunity to cross examine the third respondent. On the next two dates i.e. 16.12.2014 and 01.01.2015 the petitioner's counsel did not cross examine the third respondent and on both the dates sought adjournment which was allowed on payment of cost. On 01.01.2015 the matter was adjourned and the petitioner was given a last opportunity to cross examine the third respondent on 06.02.2015. The petitioner, instead of availing the said opportunity, again moved an application for adjournment.
8. A perusal of the application for adjournment would show that absolutely vague averments have been made therein. The number of the writ petition alleged to have been filed by the petitioner, the date fixed in the said writ petition, the order against which the said writ petition is alleged to have been filed were all conspicuously missing. The petitioner was unable to show any cause, what to say, sufficient cause for adjournment. The judgment of Bashir Ahmed (supra) on which reliance has been placed by the counsel for the petitioner is of no avail to the petitioner as in the said case, a day earlier to the date fixed for cross examination of the plaintiff witness, the counsel for the defendant had taken ill but the court refused to adjourn the matter. In the said circumstances, the Apex Court set aside the said order on the ground that it was not possible for a lawyer engaged a day earlier to go through the record and cross examine the defendant.
9. On the contrary, in Shiv Cotex v. Tirgun Auto Plast (P) Ltd., (2011) 9 SCC 678, the Apex Court, while deprecating the practice of adjourning the cases at the drop of a hat, has opined as under:-
16. No litigant has a right to abuse the procedure provided in 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 the proviso to Order 17 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 17 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 Rule 1 of Order 17 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."
(emphasis supplied)
10. In B.V. Smitha Rani v. M.K. Girish, (2009) 17 SCC 660, despite opportunity the counsel for the respondent did not cross examine the appellant and the Family Court closed the opportunity of the respondent in the said case to lead evidence. The High Court remanded the matter and granted one more opportunity to the respondent to cross examine the appellant. The Apex Court set aside the order passed by High Court and held as under:
"6. The premise on which the High Court passed the impugned order, namely, non-grant of adequate opportunity to the respondent to cross-examine the appellant and adduce his evidence is clearly erroneous, because, as mentioned above, after disposal of Writ Petition No. 1031 of 2006 filed by the respondent, the Family Court fixed the case on three different dates for cross-examination of the appellant, but the respondent did not avail that opportunity. In this view of the matter, the Family Court had rightly closed the evidence of the respondent, heard the arguments and pronounced the judgment and the High Court committed serious error by remitting the matter for giving further opportunity to the respondent to cross-examine the appellant and adduce his evidence."
(emphasis supplied)
11. In the present case, four times opportunity was afforded to the petitioner to cross examine the third respondent but the petitioner failed to avail the said opportunity. The trial Court was, thus, constrained to close the opportunity of the petitioner to cross examine the third respondent. In the circumstances, it cannot be said that the trail Court has committed any error in refusing to adjourn the matter and closing the opportunity of the petitioner to cross examine PW 1. Likewise, the revisional court has also committed no error in upholding the said order.
12. The petition is devoid of merit and is accordingly dismissed.
Order Date :- 11.2.2020 Anurag/-