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2024 Supreme(Online)(Bom) 4437
BOMBAY HIGH COURT
BHARAT P. DESHPANDE, J
EKNATH PRABHAKAR MORASKAR AND 5 ORS – Appellant
Versus
CHANDRAKANT GOPAL PRABHU DESSAI (EXPIRED) AND 3 ORS – Respondent
WP 157 / 2024
Parties should not suffer due to their advocate's absence; the court emphasized the importance of fair trial rights and proper exercise of jurisdiction in evidence reopening.
Headnote:(A) Civil Procedure Code, 1908 - Section 151 - Reopening of evidence - The court addressed the rejection of an application to reopen evidence due to the absence of an advocate, emphasizing that parties should not suffer due to their advocate's absence - The Trial Court dismissed the adjournment application without cogent reasons, despite the defendant being present - The court ruled that the absence of the advocate constituted sufficient grounds for granting an adjournment and that closing the defense evidence deprived the defendants of their right to defend their case. (Paras 8, 13, 15)
(B) Jurisdiction - The court found that the Trial Court exercised improper jurisdiction by closing the defense evidence without considering the presence of the defendant and the reasons for the advocate's absence. (Paras 15, 17)
Facts of the case:
The petitioners challenged the rejection of their application to reopen evidence after their advocate was absent due to personal difficulty, despite the defendant being present in court. The Trial Court dismissed the application for adjournment and subsequently closed the defense evidence.
Findings of Court:
The court found that the Trial Court's order showed non-application of mind and improper exercise of jurisdiction, warranting interference. The defendants were permitted to lead their defense evidence.
Issues: The main issues were whether the absence of the advocate justified the adjournment and whether the Trial Court's decision to close the defense evidence was appropriate.
Ratio Decidendi: The court held that parties should not suffer due to their advocate's absence and that the Trial Court should have granted time for the defendants to lead evidence, emphasizing the importance of fair trial rights.
Result: The impugned orders were quashed and set aside, allowing the defendants to lead their defense evidence.
ORAL JUDGMENT:
- Heard Mr. Bhobe for the Petitioners and Ms. Menezes for Respondent No. 1(a).
2.Rule. Rule returnable forthwith.
3.Heard the parties with consent for final disposal.
4. The challenge in the present Petition is to the rejection of reopening of the evidence of the Petitioners/Defendants on the ground that though Defendant No. 3 was present, the Advocate for Defendant No. 3 was absent due to some personal difficulty.
5. Mr. Bhobe would submit that on 23.03.2023, the learned Counsel for Defendant No. 3 was in some personal difficulty and therefore, Defendant No. 3 filed an Application for grant of adjournment.
6. Defendant No. 3 was present in person, however, the learned Trial Court dismissed such Application stating that there is no ground mentioned therein. Similarly, the learned Court closed the defence evidence and the matter was posted for final arguments.
7. Mr. Bhobe submits that on the next date i.e. on 15.04.2023, an Application was filed by Defendant No. 3 for reopening of the evidence stating that his Advocate was in personal difficulty on the earlier date i.e. on 23.03.2023. The say of learned Counsel for the Plaintiffs stated that the ground being about the personal difficulty of the Advocate, he did not object to such Application. However, the learned Trial Court dismissed such an Application, which is challenged in the present Petition.
8. Mr. Bhobe would submit that the impugned order suffers from non-application of mind for the simple reason that the parties should not suffer for the absence of the Advocate.
9. The learned Counsel for Respondent No. 1(a) fairly submitted that the adjournment Application was not opposed, which was filed on 23.03.2023 as well as the Application for reopening of the evidence filed on 15.04.2023.
10. A perusal of the impugned order shows that the learned Trial Court considered that the Application for reopening was filed by the Advocate who was unable to appear before the Court on 23.03.2023 whereas arguments were advanced on the Application for reopening by a new Advocate.
11. First of all, the record would go to show that Defendant No. 3 was very much present before the Court on 23.03.2023 and an Application was moved for adjournment stating that his Advocate was in personal difficulty to appear on 23.03.2023. Though such an Application was not objected to by the other side, it was dismissed only on the ground that the Application was without any cogent reasons.
12. Mr. Bhobe would submit that the Application filed on 23.03.2023 by Defendant No. 3 in person for adjournment might not have been properly worded, but, it was conveyed to the Court that adjournment is sought due to personal difficulty of the Advocate. Similarly, the Application for re-opening of the evidence filed on 15.04.2023 also disclosed the same ground as found in paragraph 1 itself.
13. It is well settled that the parties should not suffer because of any act of the Advocate. In this matter, though Defendant No. 3 was very much present in the Court, his Advocate was absent due to personal difficulty. That itself is a sufficient ground for a grant of adjournment. The Trial Court at the most and if objected by the other side could have imposed costs.
14. The next aspect is the date fixed for final arguments by closing the defence evidence. The absence of the Advocate was on 23.03.2023 whereas the next date was fixed on 15.04.2023. The Trial Court could have easily granted time in between for the Defendants to lead evidence. By closing the defence evidence, a valuable right of the Defendants to defend their case and that too without their fault is taken away.
15. The impugned order, therefore, clearly shows non- application of mind and an improper exercise of jurisdiction. Closing evidence of the parties could be considered as a last resort. Accordingly, the impugned order needs interference.
16. The learned Counsel for Respondent No. 1(a) submits that the matter has been pending since long for defence evidence.Defendan
