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IN THE HIGH COURT OF ALLAHABAD
Deoki Nandan, J.
BRAHMA SWAROOP - Appellant
Versus
SHAMSHER BAHADUR - Respondents
Second Appeal 1053 Of 1983
Decided On : 07/21/1983
ADJOURNMENT - CIVIL PROCEDURE CODE, 1908 - ORDER 17 RULE 1 CLAUSE (2) PROVISO CLAUSE (C) - ORDER 41 RULE 1 - INTERPRETATION - ADJOURNMENT OF HEARING OF APPEAL - SUFFICIENCY OF CAUSE - ENGAGEMENT OF COUNSEL IN ANOTHER COURT - DISCRETION OF COURT - JUDICIAL EXERCISE - ADVERSARY SYSTEM OF ADMINISTRATION OF JUSTICE - MALA FIDE REQUEST - PERSONAL GROUNDS - SETTING ASIDE OF DISMISSAL FOR DEFAULT - RESTORATION OF APPEAL - REFUND OF COURT-FEES.
Fact of the Case:
The defendants filed a second appeal challenging a decree for damages and injunction restraining them from demolishing a wall. The lower appellate court rejected their application for adjournment of the hearing on the ground that their counsel was busy in other cases. The defendants argued that the lower appellate court erred in rejecting their application and proceeding ex parte.
Finding of the Court:
The High Court held that the lower appellate court erred in rejecting the defendants' application for adjournment and proceeding ex parte. The court found that Order 17 Rule 1 Clause (2) Proviso Clause (C) of the Civil Procedure Code, 1908, which prohibits adjournment on the ground of counsel's engagement in another court, applies only to the original trial of a suit and not to the hearing of an appeal. The court also found that the lower appellate court failed to exercise its discretion judicially in considering the defendants' request for adjournment.
Issues: 1. Whether the lower appellate court erred in rejecting the defendants' application for adjournment and proceeding ex parte? 2. Whether Order 17 Rule 1 Clause (2) Proviso Clause (C) of the Civil Procedure Code, 1908, applies to the hearing of an appeal? 3. Whether the lower appellate court failed to exercise its discretion judicially in considering the defendants' request for adjournment?
Ratio Decidendi: 1. The court held that the lower appellate court erred in rejecting the defendants' application for adjournment and proceeding ex parte because: - Order 17 Rule 1 Clause (2) Proviso Clause (C) of the Civil Procedure Code, 1908, which prohibits adjournment on the ground of counsel's engagement in another court, applies only to the original trial of a suit and not to the hearing of an appeal. - The lower appellate court failed to exercise its discretion judicially in considering the defendants' request for adjournment. 2. The court held that Order 17 Rule 1 Clause (2) Proviso Clause (C) of the Civil Procedure Code, 1908, does not apply to the hearing of an appeal because: - It is placed as a clause of the proviso to Clause (2) of Rule 1, which gives the trial court a discretion in the matter of adjournment of the hearing of a suit. - Clauses (b), (c), (d), and (e) of the proviso are apparently independent of each other and of Clause (a) of the proviso, and they could properly be applied only when the hearing of a suit has commenced and not to a case when the hearing has not commenced. - Even so, they are not absolute bars, as Clause (d) itself shows that the court still has a discretion and can, for exceptional reasons to be recorded by it, adjourn the hearing beyond the following day. 3. The court held that the lower appellate court failed to exercise its discretion judicially in considering the defendants' request for adjournment because: - The defendants were not at fault for their counsel's inability to appear on the day of the hearing. - The defendants could not have engaged another counsel for defending the appeal on such short notice. - The lower appellate court did not consider the defendants' personal ground for requesting an adjournment.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and restored Civil Appeal No. 1 of 1981 of the District Court, Rampur, to its original number for hearing afresh in accordance with law. The court also directed the District Judge, Rampur, to withdraw the appeal to his own court and either hear and decide it himself or assign it for hearing to some court of competent jurisdiction in his district other than a court presided over by Mr. K. K. Singh, Civil Judge, Rampur.
( 1 ) THIS is a defendants second appeal from a decree for damages in the sum of Rs. 50/- and injunction restraining the appellants from demolishing a wall A B as shown in the plaint map. The trial court had dismissed the suit and the decree under appeal was passed by the court, of the civil Judge, Rampur on 26th Mar. , 1981, on appeal from the trial courts decree, after rejecting the application moved on behalf of the defendants, who were respondents in the appeal before the lower appellate court, by their counsel for adjournment of the hearing of the appeal, on the ground that he was busy in other cases and was unable to attend that court on that day.
( 2 ) THE lower appellate courts order rejecting the application for adjournment runs thus : "25-3-81 : sri K. Chandra for appellant. The respondent who was present a little while ago is absent now. 12-D is an adjournment application by the counsel for the respondent stating that he is busy in other courts and he is unable to attend this court. Opposed. Order XVII 1 empowers the court to grant adjournment on showing sufficient cause, provided that the fact that the pleader of a party is engaged in another court shall not be a ground of adjournment, thus ground stated in the adjournment application is not sufficient cause 12-D is rejected. Proceed ex parte. Heard. Judgment OB 26-3-81. Sd/- Illegible 25-3
( 3 ) IT is surprising, that Sri K. K. Singh. Civil Judge of Rampur who passed the above order on 25th March, 1981, did not notice that Order 17 of the Civil P. C. applies to the original trial of a suit, and not to the hearing of an appeal from the trial courts decree in a suit The procedure for hearing of an appeal is prescribed by Order 41 of the Civil P. C. and Rule 1 of Order 47 referred to by the learned Civil Judge does not in any manner control the adjournment of the hearing of an appeal from a decree by a court of appeal,
( 4 ) EVEN so, I must add that Clause (c) of the proviso to Clause (2) of Rule 1 of Order 17, has been misinterpreted by the learned Civil Judge. Clause (c) of the proviso to Clause (2) does not say or does not prohibit a court from adjourning the hearing of a suit on the ground that the pleader of a party is engaged in another court. That clause has to be read in the context in which it is placed as a clause of the proviso to Clause (2) of Rule 1. Clause (1) of Rule 1 of Order 17 gives the trial court a discretion in the matter of adjournment of the hearing of a suit. That discretion has to be exercised judicially in all the facts and circumstances of the case. Clause (2)of the said rule says that where the hearing has been adjourned, 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. This is followed by Clause (a) of the proviso which says that "when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. " Then follow Clauses (b) (c) (d) and (e ). They are apparently independent of each other and of Clause (a) of the proviso, but on a true interpretation of their intent and purpose they could properly be applied only when the hearing of a suit has commenced and not to a case when the hearing has not commenced. Even so they are not absolute bars, as Clause (d) itself shows that the court still has a discretion and can for exceptional reasons to be recorded by it, adjourn the hearing beyond the following day. In the adversary system of administration of justice with the assistance of Advocates from either side, which is followed in our courts, it would be putting a party to a great disadvantage if the hearing of a suit or appeal were not to be adjourned in a case where a counsel engaged by that party find
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