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M/S RAM KUMAR RAJENDER KUMAR versus BALBIR

High Court of Punjab and Haryana, Chandigarh

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M/s Ram Kumar Rajender Kumar v. Balbir - CR-275-2005 [2006] RD-P&H 2002 (27 March 2006)

C.R. No. 275 of 2005 1

M/s Ram Kumar Rajender Kumar v. Balbir

* * *

Present: Mr. B.S. Mittal, Advocate for the petitioner.

Mr. Rajesh Sethi, Advocate for the respondent.

* * *

S.S. Saron, J

This petition under Article 227 of the Constitution of India has been filed assailing the order dated 22.7.2004 passed by the learned trial Court whereby the evidence of the plaintiff-petitioner has been closed by order.

The plaintiff-petitioner filed a suit for recovery of Rs.3,92,586/- i.e.

Rs.3,23,537/- as the principal amount and Rs.59,049/- as interest calculated upto 4.4.1999 at the rate of 1.75% per mensum with pendent lite and future interest at the said rate from 5.4.1999 till the full and final realisation thereof. During the pendency of the suit, the evidence of the plaintiff-petitioner was closed by order of the learned Civil Judge (Sr. Division), Sirsa by observing therein that one PW had been examined and no other PW was present. It was further observed that the learned counsel for the plaintiff-petitioner tendered documents Mark A to C and C.R. No. 275 of 2005 2

Ex. PX and PY in evidence and requested for an adjournment. However, already sufficient time had been granted to the plaintiff to conclude its evidence and no further adjournment for evidence of the plaintiff was justified.

Accordingly, the plaintiff's evidence was closed, by order dated 22.7.2004, which as already noticed, has been assailed in this petition.

Learned counsel for the petitioner submits that despite exercise of due care and diligence, the evidence could not be led and that the learned trial court had only granted four effective opportunities to the plaintiff-petitioner to lead its evidence and now only Rajinder Kumar partner of the sole proprietor of the plaintiff-petitioner is to be examined.

In response, learned counsel for the respondent has strongly opposed the prayer. It is contended that sufficient opportunities have been granted to the plaintiff-petitioner to lead its evidence and that it has failed to lead the evidence.

Therefore, it is not entitled to any further opportunity to lead its evidence. It is also contended that the provisions of Order 16 Rule 20 and Order 17 Rules 1 and 2 also impose an embargo on the respondent to lead further evidence.

After giving my thoughtful consideration to the contentions of the learned counsel for the parties, it is appropriate to note that the plaintiff is only to examine himself in the case and learned counsel for the petitioner has submitted that only Rajinder Kumar who is the sole proprietor of the plaintiff-petitioner C.R. No. 275 of 2005 3

would be examined and no other witness is to be examined. In my view, the examination of the plaintiff as a witness would be necessary for the effective decision of the case and if he is not examined, it would result in prejudice to him.

Objections taken by the learned counsel for the respondent with reference to the provisions of Order 16 Rule 20 and Order 17 Rule 1 and 2 CPC are technical in nature. The rules of procedure, as is well known, are hand maids of justice and they are meant to expedite the cause of justice and not to hamper it. Even otherwise where technical consideration and merit are pitted against each other, the cause of merit is to be preferred. The effect of the provisions of Order 17 Rules 1(1) proviso and 1(2) (as amended by CPC (Amended) Act, 1999 w.e.f.

1.7.2002) has been considered by the Hon'ble Supreme Court in Salem Advocate Bar Association T.N. vs. Union of India (2005) 6 SCC 344. Insofar as the contentions of the learned counsel for the respondent as regards the provisions of Order 16 Rule 20 CPC are concerned, it is appropriate to note that a reading of the said provision shows that the same relate to consequence of refusal of a party to give evidence when called upon by the Court. It is provided therein that where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there, in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. The said provision in fact is not C.R. No. 275 of 2005 4

applicable to the facts of the case in hand. The said provisions would apply where a party is in Court and when required by the Court to give evidence or produce any document then and there in his possession or power, without lawful excuse, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. In the case in hand it is not even the case of the respondent that the petitioner was present in Court and that he was asked to produce a document then and there, which he refused without lawful excuse. Therefore, the contentions of the learned counsel for the respondent as regards the applicability of the provisions of Order 16 Rule 20 CPC are misplaced and misconceived.

Insofar as the provision of Order 17 Rule 1 and 2 CPC are concerned, the same as has already been noticed, considered in the case Salem bar Association T.N. Vs. Union of India, (Supra). In paras 29, 30 and 31 of the report, it was observed as follows:

"29. Order 17 of the Code relates to grant of adjournments.

Two amendments have been made therein. One that adjournment shall not be granted to a party more than three times during hearing of the suit. The other relates to the costs of adjournment. The awarding of costs has been made mandatory. Costs that can be awarded are of two types.

First, costs occasioned by the adjournment and second such C.R. No. 275 of 2005 5

higher costs as the court deems fit.

30.While examining the scope of the proviso to Order 17 Rule 1(1) that more than three adjournments shall not be granted, it is to be kept in view that the proviso to Order 17 Rule 1 (2) incorporating clauses (a) to (e) by Act 104 of 1976 has been retained. Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The proviso to Order 17 Rule 1(1) and Order 17 Rule 1(2) have to be read together. So read, Order 17 does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on the number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained the third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment or there may be serious accident or some act of God leading C.R. No. 275 of 2005 6

to devastation. It cannot be said that though the circumstances may be beyond the control of a party, further adjournment cannot be granted because of the restriction of three adjournments as provided in the proviso to Order 17 Rule 1.

31. In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (take the example of the Bhopal gas tragedy, Gujarat earthquake and riots, and devastation on account of the tsunami). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of the practice having been developed to award only nominal costs even when adjournment on payment of costs is granted. Ordinarily, where the costs on higher costs are awarded, the same should be realistic, and as far as possible actual costs that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable, but is being granted on account of C.R. No. 275 of 2005 7

either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save the proviso to Order 17 Rule 1(1) from the vice of Article 14 of the Constitution, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases noted above. The limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party.

Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the court by resorting to the provision of higher costs which can also include punitive costs in the discretion of the court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. We may, however, add that grant of any adjournment, let alone the first, second or third adjournment, is not a right of a party.

The grant of adjournment by a Court has to be on a party showing special and extraordinary circumstances. It C.R. No. 275 of 2005 8

cannot be in routine. While considering the prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict the grant of adjournments".

Therefore it is evident that the above provisions are directory and not mandatory and the plaintiff only wants to examine himself as a witness, Besides, the respondent can be compensated in terms of the costs.

For the foregoing reasons, the civil revision petition is allowed, the order dated 22.7.2004 is set aside and the plaintiff-petitioner i.e. Rajender Kumar its sole proprietor may examine himself as a witness for which one effective opportunity shall be granted by the learned trial Court subject to payment of Rs.3000/- as costs.

November 29, 2005 (S.S. SARON)

ps JUDGE


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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