2005 Supreme(Gau) 176
IN THE HIGH COURT OF GAUHATI (AGARTALA BENCH)
A.B. PAL, J.
Manoj Kanti Sengupta – Appellant
Vs.
Smt. Gita Sengupta and Anr. – Respondent
W.P. (C) Nos. 313 to 316 of 2004
Decided On: 02.03.2005
Important Points
Subject
Civil Law - Adjournment and Dismissal for Default
Headnote
Adjournment - Civil Procedure - Order XVII CPC - Rule 1, Rule 2, Rule 3
Fact of the Case:
The plaintiff petitioner sought multiple adjournments in a civil suit, leading to the dismissal of the suits for default. The defendant respondents contended that the plaintiff's actions were intended to prolong the settlement of the dispute.
Finding of the Court:
The trial Court incorrectly dismissed the suits for default after rejecting the prayer for adjournment. The Court should have proceeded to decide the suits forthwith as it had heard both sides.
Issues: The main issue was whether the trial Court's dismissal of the suits for default was justified after rejecting the prayer for adjournment.
Ratio Decidendi: The Court held that the trial Court acted illegally by dismissing the suits for default, as it should have proceeded to decide the suits forthwith after hearing both sides.
Final Decision: The writ petitions were allowed, setting aside the order of dismissal and remitting the suits to the trial Court to proceed in accordance with law as required by Order XVII, Rule 3 of the Code of Civil Procedure.
Advocate Appeared
For Appellant/Petitioner/Plaintiff: S. Talapatra, Sr. Counsel and B. Banerjee, Adv.
For Respondents/Defendant: P. Roy Barman and B. Saha, Advs.
A.B. Pal, J.
1. In above four writ petitions, the petitioner and the main respondent being same and the same order dated 19-3-2003 of the Civil Judge, Senior Division, West Tripura, Agartala in Title Suit Nos. 59/01, 60/01, 61/01 and 62/01 having been assailed, I have taken up all these cases for disposal by single judgment.
2. The plaintiff petitioner filed the aforesaid suits on 9-7-2001 in the Court of Civil Judge, Senior Division, West Tripura, Agartala and on 13-8-2002, issues were framed. The plaintiff petitioner did not file list of witnesses and did not annex the list of documents upon which he proposed to rely as required under Rule 14 of Order VII of the Code of Civil Procedure. The case was fixed for peremptory hearing on 31-8-2002, but on that date, the plaintiff petitioner had taken adjournment. The next date was 18-11-2002, but on that date also he sought adjournment and submitted a prayer to call for certain records. The prayer was disposed of on 21-1-2003 partly rejecting the prayer on the ground that no cause was shown for non-production of those documents as required by Rule 14 of Order VII C. P. C. But the prayer for summoning the sub-Registrar for proving the certified copy of the deed was allowed as a copy was furnished along with the plaint. The Court, however, allowed production of admissible evidence as per provision of law fixing 19-2-2003 for the next date of hearing/filing of evidence of witnesses by affidavit. On 19-3-2003, the plaintiff petitioner again sought adjournment on the ground that though intended, he could not file the revision petition against the order dated 21-1-2003 as he got the certified copy of the said order only on 4-3-2003. Another ground for adjournment was that though the revisional application was prepared on 12-3-2003. he could not collect Air Ticket to travel from Kolkata to Agartala. The petition for adjournment was rejected by order dated 19-3-2003 on the ground that three adjournments already allowed and proviso to Rule 1 of Order XVII of the C. P. C. does not permit more than three adjournments during hearing of the suit. After recording the conduct of the plaintiff-petitioner, who blocked the progress of the suit by seeking adjournment after adjournment, the trial Court after hearing both sides dismissed the suits for default. The present writ petitions have assailed the said order dated 19-3-2003. Same order on same date has been passed in all the above four suits.
3. The defendant respondents filed counter-affidavit contending that the writ petition under Article 227 of the Constitution against the impugned order is not maintainable as there has been no failure of grave injustice. The supervisory power of the High Court can be invoked only in a situation when gross failure of justice has occasioned. Furl her contention of the defendant respondents is that the plaintiff petitioner by seeking adjournment after adjournment in the cases filed by him is intending to prolong the settlement of the dispute.
4. I have heard Mr. S. Talapatra, learned senior counsel, assisted by Mr. B. Banerjee, learned counsel for the petitioner and Mr. P. R. Barman, learned counsel for the respondents.
5. The first submission of Mr. Talapatra is aimed at the observation in the impugned order that the adjournment prayer dated 19-3-2003 of the petitioner was without any affidavit/verification and signature of the plaintiff-petitioner. The defect so indicated by the trial Court might have played in his mind in rejecting the prayer. But Mr. Talapatra submits that an adjournment petition is not required to be filed and signed by the plaintiff and no affidavit or verification is at all required. His second submission is that more than three adjournments cannot be granted during hearing in view of the proviso to Rule 1 of Order XVII C. P. C, as held by the Court in the impugned order, is misconceived for the reason that the adjournments were sought for in pre-hearing stage of the case. His third