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2017 Supreme(P&H) 1966
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mrs. Justice Daya Chaudhary
C.R. No.3495 of 2017
Kuldeep Kaur
v.
Raj Kumar & Ors.
{Decided on 15/05/2017}
For the Petitioner:Mr. Ashish Gupta, Advocate,
Adjournment--Costs--If the costs imposed for seeking an adjournment to cross examine a witness are not paid, the appropriate course is to close the cross examination of the witness but suit cannot be dismissed.
Headnote:(A) Civil Procedure Code, 1908, O.17 R.2 and S.35-B--Adjournment--Costs--If the costs imposed for seeking an adjournment to cross examine a witness are not paid, the appropriate course is to close the cross examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party--A suit cannot be dismissed for non-payment of costs as it results in forfeiture of the right to further prosecute the suit or defence as the case may be. (Para 7)
(B) Civil Procedure Code, 1908, O.17 R.1--Adjournment--Cross examination treated as Nil--Petitioner cannot be said to be at fault as her counsel failed to appear because of his ailment and the plaintiff could not be cross-examined-- In such a situation, the petitioner cannot be legally permitted to suffer on account of negligence or inaction on the part of her counsel--The cross-examination of plaintiff is necessary/essential to decide the real controversy between the parties and is also the legal requirement of fair trial--One more effective opportunity granted subjects to costs. (Para 9)
Mrs. Daya Chaudhary, J.:- Petitioner-defendant-Kuldeep Kaur has filed the present revision petition under Article 227 of the Constitution of India for setting aside impugned order dated 12.12.2006 (Annexure P-1) passed by the Civil Judge (Sr. Division), Moga whereby the trial Court has treated the opportunity to cross-examine the plaintiff-respondent No.1 by petitionerdefendant No.5 as ‘Nil’ and also for setting aside impugned order dated 7.4.2017 (Annexure P-6) whereby application for setting aside the impugned order has been dismissed.
2. Briefly, the facts of the case, as made out in the present revision petition are that plaintiff-respondent No.1 filed a suit for possession by way of specific performance on the basis of agreement to sell dated 19.3.2012. After completion of pleadings, issues were framed in the suit and thereafter plaintiff tendered his affidavit in his evidence in chief on 19.9.2016 and matter was deferred for cross-examination. Plaintiff was cross-examined by counsel for defendant Nos.1 to 4 but due to failure on the part of counsel for the petitioner, the cross-examination was treated as ‘Nil’ and matter was posted to 3.1.2017 for documentary evidence. Thereafter, an application was moved for recalling of impugned order dated 12.12.2016 which was also dismissed vide order dated 7.4.2017. Both these orders are subjectmatter of challenge in the present revision petition.
3. Learned counsel for the petitioner submits that counsel for the petitioner was suffering from lung infection and he was advised bed rest from 9.12.2016 to 13.12.2016. Due to failure on the part of the counsel, the cross-examination on behalf of the petitioner was treated as nil. The application filed by the petitioner for recalling of order dated 12.12.2016 was also dismissed. Learned counsel submits that after 29.10.2016, the matter was adjourned to 12.12.2016 and cross-examination could not be conducted because counsel for the petitioner was unwell. It cannot be said that sufficient opportunities were granted. Moreover, the petitioner should not suffer because of inaction/default on the part of her counsel as the circumstances were beyond her control. At the end, learned counsel submits that one effective opportunity be granted to the petitioner to crossexamine plaintiff-respondent No.1, failing which, a great injustice would be caused to the petitioner.
4. Heard the arguments of learned counsel for the petitioner and have also perused the impugned orders as well as zimni orders, which have been placed on record in the petition.
5. Admittedly, plaintiff-respondent No.1 tendered his affidavit in examination-in-chief on 19.9.2016 and his cross-examination was deferred to 29.10.2016 but he could not be cross-examined. Ultimately, case was deferred to 12.12.2016 for cross-examination. The plaintiff was crossexamined by the counsel for defendant Nos. 1 to 4/respondent No.2 to 5 but due to failure on the part of counsel for petitioner-defendant No.5, crossexamination could not be conducted and it was treated as ‘Nil’. Thereafter, case was adjourned to 3.1.2017. The application for recalling of order dated 12.12.2016 and to allow the petitioner to conduct cross-examination has been dismissed on the ground that the petitioner availed sufficient opportunities to conclude the evidence but she failed to conclude.
6. Rule 1 Order 17 of Civil Procedure Code is relevant for deciding the controversy in the present case, which deals with grant of time and adjournments. The said provision is reproduced as under :-
“1. Court may grant time and adjourn hearing. -
(1) 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 for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during hearing of the suits.
(2) Costs of adjournment- In every such case the Court shall fix a d
