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IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Prasanta Kumar Katoni and Ors. – Appellants
Vs.
Tuniram Katoni and Ors. – Respondent
Decided On: 01.02.2007
Adjournment - Civil Procedure - Order 17, Rule 1 - 2002 Amendment Act - [Order 17, Rule 1, Code of Civil Procedure] - The court allowed the revision and set aside the impugned order, emphasizing that the refusal to grant adjournment was a refusal to exercise jurisdiction vested in the Court. The court highlighted that the rules of procedure are meant to advance the cause of justice and not to defeat it, and that a party should not be denied adjournment solely based on the number of adjournments obtained if the ground for seeking adjournment is justified and tenable.
Fact of the Case:
The suit was dismissed by the trial court due to the plaintiff's inability to attend for cross-examination, despite obtaining several adjournments. The plaintiff sought adjournment on the ground of ill-health, which was supported by a medical certificate.
Finding of the Court:
The court found that the refusal to grant adjournment was a refusal to exercise jurisdiction vested in the Court and emphasized that the rules of procedure are meant to advance the cause of justice and not to defeat it.
Issues: The main issue was the refusal of the trial court to grant adjournment based on the number of adjournments obtained by the plaintiff.
Ratio Decidendi: The court held that a party should not be denied adjournment solely based on the number of adjournments obtained if the ground for seeking adjournment is justified and tenable.
Final Decision: The revision was allowed, the impugned order was set aside, and the suit was remanded to the trial court for disposal in accordance with law.
I.A. Ansari, J.
1. This revision is directed against the order, dated 27.05.2005, passed by the learned Civil Judge (Junior Division) No. 1, Jorhat, in Title Suit No. 44/93, dismissing the suit.
2. Before I enter into the legality of the impugned order, it is necessary, for effective disposal of the present revision, that the material facts leading to the present revision are taken note of. These facts are, in a nutshell, thus: The suit, in question, was instituted in the year 1997 and the suit came to be fixed for recording of the plaintiff's evidence, for the first time, on 17.08.1995. A number of adjournments were obtained by the plaintiff's for examination of the plaintiff No. 1, who was to be examined as witness No. 3 for the plaintiffs, the adjournments having been obtained on 22.01.1996, 19.03.96, 13.02.2001, 08.03.2001, 20.09.2001, 16.11.2001, 07.12.2001, 11.01.2002, 07.02.2002, 22.03.2002, 26.04.2002 and 06.06.2002.
3. After the Code of Civil Procedure (Amendment) Act, 2002, came into force with effect from 01.07.2002, the plaintiffs sought for, and obtained, adjournment of the hearing of the suit for examining the plaintiff No. 1 as a witness on 17.08.2002, 13.09.2002, 15.02.2003, 06.03.2003 and 21.03.2003.
4. Eventually, considering the ailments of plaintiff No. 1 and his inability to attend the Court, an order was passed, on 06.12.2004, allowing the plaintiff No. 1 to be examined on Commission. On 29.01.2005, the plaintiff No. 1 was examined by the Commission, but his evidence could not be completed due to his ill-health. An order indicating this fact was passed by the Commissioner, appointed by the learned Court below, on 03.02.2005.
5. Thereafter, by an order, dated 27.04.2005, the learned Court recalled the Commission and fixed 18.05.2005 as the date for filing of the said plaintiffs evidence by way of affidavit. In terms of the directions so given, the said plaintiffs deposition, in writing, in the form of affidavit on oath, was filed on 18.05.2005 and an order was passed, in the suit, fixing 27.05.2005 for hearing on admissibility of the documents and cross-examination of the plaintiff No. 1 as PW3. On the date fixed, i.e., on 27.05.2005, a prayer for adjournment was made on the ground that the plaintiff No. 1 was an old and ailing person, he had been suffering from high blood pressure and also other old age related ailments and, hence, he was unable to attend the Court for his cross-examination. This petition was supported by a medical certificate. The learned trial Court declined to grant any further adjournment on the ground that adjournment, on seven occasions, had been obtained by the plaintiffs in the past. The learned trial Court accordingly passed the impugned order and dismissed the suit. Aggrieved by the order, so passed, the plaintiffs came to this Court with the present revision. During the pendency of the revision, the plaintiff No. 2, namely, Mihiram Katoni, died and his legal representatives have already been brought on record. It is in such circumstances that the present revision has been taken up for hearing.
6. I have heard Mr. S. Sharma, learned Counsel for the plaintiff/petitioners, and Mrs. B. Goyal, learned Counsel, for the defendant/opposite party herein.
7. While considering the present revision, what needs to be noted is that though under Order 17, Rule 1, not more than three adjournments can be granted to a party during the hearing of a suit, the fact remains that this is a requirement of procedural law. If, therefore, on good and justified reasons, a plaintiff has obtained three adjournments or more than three, this alone cannot be made an absolute ground to refuse adjournment of hearing of the suit if on the date, when the plaintiff applies for adjournment, he has been able to make out a good case for his inability to either produce his witness or offer himself for cross-examination.
8. In the case at hand, the fact that the plaintiff was sick on 12.07.2005 was not disputed. In such
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