1. Suit for ejectment — Adjournment sought due to counsel's sudden illness — Trial Court's refusal to adjourn and forfeiture of right to cross-examine. (Para 2 )
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1995 Supreme(SC) 387
SUPREME COURT OF INDIA
K. RAMASWAMY AND B.L. HANSARIA, JJ.
Bashir Ahmed, Appellant
Versus
Mehmood Hussain Shah, Respondent.
Civil Appeal No. 4035 of 1995, (arising out of S. L. P. No. 22519 of 1994)
Decided on 20-3-1995.
Important Points
The Court ruled that while Order 17 Rule 1(2)(d) discourages adjournments due to counsel's illness, 'reasonable time' must be allowed to engage alternative counsel. Forfeiting the right to cross-examine when a party has no time to make alternative arrangements is a grave error of law.
Subject
Civil Law - Adjournment
Act Referred
Headnote
Reasonable Cause—MATTER POSTED FOR CROSS EXAMINATION OF WITNESS—COUNSEL OF PARTY FALLING ILL DURING THE NIGHT—PARTY HAD NO TIME TO MAKE ALTERNATE ARRANGEMENT
- held engaging new counsel to proceed with the trial would be fraught with grave risk and be unrealistic. The Court should have adjourned the case for the next date so as to enable the appellant to have another counsel engaged and instructions given to cross examine in the case of Bashir Ahmed.
Legal Category Hierarchy
Advocates:
ANANT PALLI, ASHOK MATHUR, M.L.BHATT, PURNIMA BHATT KAK, S.P.SINGH
ANANT PALLI, ASHOK MATHUR, M.L.BHATT, PURNIMA BHATT KAK, S.P.SINGH
Table of Contents
2. Challenge to the trial court's procedure and order forfeiting the right to cross-examine the plaintiff after refusing an adjournment based on counsel's illness. (Para 3 )
3. The phrase in time under Order 17, Rule 1(2) implies reasonable time to engage alternative counsel, which was absent given the overnight illness. (Para 6 , 7 , 8 )
4. Adjournment for counsel's illness may be refused if reasonable time existed to engage another pleader, but sudden illness justifies adjournment to avoid grave risk. (Para 7 , 8 )
5. Appeal allowed — Trial Court directed to restore the right to cross-examine the plaintiff and recall other witnesses for cross-examination. (Para 10 )
6. When can a court refuse an adjournment based on the illness of a pleader under Order 17, Rule 1(2) of the CPC?
A court shall not grant an adjournment for a pleader's illness unless it is satisfied that the party could not have engaged another pleader in time. If reasonable time intervened between the last adjournment and the trial date, the court may refuse the request. (Para 5 , 6 , 7 )
7. What does the expression in time mean in the context of engaging alternative counsel for an adjournment?
The words in time indicate that a party must be given reasonable time to make alternative arrangements when a counsel suddenly becomes unwell, allowing the new counsel to study pleadings, issues, and evidence. (Para 7 , 8 )
8. Is it realistic to expect a party to engage new counsel on the spur of the moment for cross-examination?
No, engaging new counsel to proceed with trial on the spur of the moment is unrealistic and fraught with grave risk, as the new counsel requires time to apply their mind to the pleadings and evidence. (Para 8 )
JUDGMENT :—Leave granted.
2. We have heard counsel on both sides. From the record, it would appear that a suit for ejectment was filed on October 3, 1988 and the matter was adjourned from time to time on one count or the other. On 8-8-1994, while the plaintiff was present in person, due to death of an advocate, the advocates went on strike. As a consequence, the matter was adjourned to 9-8-1994. It would appear that since counsel appearing for the appellant was unwell, the appellant could not proceed with the cross-examination of the respondent plaintiff and sought for short adjournment and agreed to pay costs. Instead, the Court directed the appellant to engage another lawyer for cross-examination of the plaintiff. Since he did not do so the Court ordered for forfeiture of cross-examination and proceeded with the matter.
3. Calling in question the procedure adopted and the order passed by the trial Court the appellant went in revision. The High Court by order dated 8-9-1994 in Cr. No. 118/94 dismissed the revision. Thus this appeal by special leave.
4. Order 17, Rule 1 (1) provides that -
"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.
5. Sub-Rule (2) is relevant which reads
"Costs of adjournment - In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment :
Provided that :
(a) to (c) xxxxxxxx
(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time."
6. 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 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. Clause (d) of the proviso specifically mentions that if the Court is satisfied that illness of the counsel or inability of the counsel to proceed with the case was put forward, except when the counsel was engaged in another case as a ground for adjournment, it shall not grant adjournment.
7. Therefore, the Court is enjoined to satisfy itself in that behalf. If the party engages another counsel as indicated therein, then the need for further adjournment would be obviated. The words in time would indicate that at least reasonable time may be given when a counsel suddenly becomes unwell. There would be reasonable time for the parties to make alternative arrangement, when sufficient time intervenes between the last date of adjournment and the next date of trial. In such a case, adjournment on the ground of counsels ill health could be refused and the party would bear the responsibility for his failure to make alternative arrangements. Take for instance, a suit was adjourned for trial for a period of one week and the counsel appears to have suddenly become indisposed which would be known to the party. Therefore, the party, in advance, has to make alternative arrangement to proceed with the trial engaging another counsel. The words in time would, therefore, indicate that reasonable time would be required for making alternative arrangements.
8. In this case, it is seen that the counsel for the appellant had to cross-examine the respondent plaintiff. Unless there is time for the new counsel to be engaged for application for his mind to pleadings, issues framed, the evidence already on record, it would be difficult to proceed with the cross-examination on the spur of moment. It wo
