Writ Petition No.2852 of 2014

23rd June, 2014

Petitioner Counsel: Shri M.P. KARIYA
Respondent Counsel: Shri R.R. SHRIVASTAVA

Cases Cited:
Shiv Cotex Vs. Tirgun Auto Plast Private Limited & Ors., 2011 ALL SCR 2417=(2011) 9 SCC 678 [Para 9]
Noor Mohammed Vs. Jethanand & Anr., 2013 ALL SCR 673 =(2013) 5 SCC 202 [Para 9]
Rasiklal Manikchand Dhariwal & Anr. Vs. M.S.S. Food Products, 2012(1) ALL MR 968 (S.C.) =(2012) 2 SCC 196 [Para 10]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. Heard the petition by consent of the learned Counsel appearing for both the parties.

2. This writ petition challenges order dated 7.4.2014, passed below Exh.72, by the learned Civil Judge Junior Division, Zari-Jamni, District Yavatmal, in Regular Civil Suit No.13 of 2013, whereby the application filed by the petitioners/defendants for grant of permission to cross-examine the respondents/plaintiff's witness No.1 was rejected on the ground that the circumstances in the suit were such that it would be abuse of process of law if the petitioners/defendants are granted permission to proceed with the trial and cross-examine the witness at their leisure and pleasure. Learned trial Judge found that there was no sufficient reason to grant the permission to the petitioners/defendants for cross-examination of the respondents/plaintiffs. The impugned order was passed under the circumstances that examination-in-chief of the witness examined on behalf of the respondents/plaintiffs was complete on 21.10.2013 and thereafter the petitioners/defendants adopted tactics of repeating applications seeking adjournment of the trial.

3. According to the learned counsel appearing for the respondents/plaintiffs, such applications for adjournment were granted on 8.11.2013, 29.11.2013 and 20.12.2013. However, on 17.1.2014 such application (Exh.68) for adjournment was rejected and cross-examination was closed.

4. However, again on 30.1.2014 permission was sought to cross examine the respondents/plaintiffs which was belated application and since the cross-examination was already closed by order dated 17.1.2014 below Exh.68, by impugned order learned trial Judge refused to permit the petitioners/defendants an opportunity to cross examine the witness on behalf of the plaintiffs.

5. The grievance of the respondents/plaintiffs is that repeated applications for adjournments ought not to have made by the petitioners/defendants in order to delay the trial and sufficient opportunity was granted to the petitioners/defendants to proceed with the trial and to cross examine the respondents/plaintiffs.

6. On the other hand, learned counsel appearing for the petitioners/defendants, contends that final opportunity to cross examine the witness on behalf of the respondents/plaintiffs could have been granted on the principle that for error of the Advocate the litigant should not suffer, as Advocate remained absent who was required to conduct cross examination on behalf of the petitioners/defendants. The petitioners/defendants had also prayed for engaging another Counsel as their earlier Counsel was not available and had gone to Hyderabad.

7. I have considered the reply on behalf of the respondents/plaintiffs as well as anxiety of learned counsel appearing for the petitioners/defendants that one final opportunity could have been granted by the learned trial Judge for the petitioners/defendants to cross examine the witness for the plaintiffs. I think, in such cases when repeated adjournments are sought, learned trial Judge can be justified to impose reasonable costs upon the party applying for adjournments and if such applications are repeated even exemplary costs be imposed for to prevent the litigant from seeking repeated adjournments in the trial Court, before a very drastic action is taken for to close the case and shut up the party applying for adjournments during hearing of the suit.

8. Learned counsel appearing for the petitioners/defendants submits that under the circumstances when learned counsel for the petitioners/defendants had gone to Hyderabad, and on next date some instructions were required by the counsel to properly and effectively cross-examine the witness, hence adjournments were sought. Thereafter, the petitioners/defendants had also prayed for engagement of another Counsel since their earlier Counsel was not available as he had gone to Hyderabad.

9. Thus, for non-availability of Counsel another Counsel was engaged to defend the suit. The applications were made for adjournments. He prayed for an opportunity to cross-examine the witness examined on behalf of the plaintiffs subject to reasonable costs while on behalf of the respondents/plaintiffs reference is made to leading ruling in the case of Shiv Cotex ..vs.. Tirgun Auto Plast Private Limited and others, reported at (2011) 9 SCC 678 : [2011 ALL SCR 2417] in which the Honourable Supreme Court considered Cap of three adjournments in view of Order XVII Rules 1 and 3(a) of the Civil Procedure Code as also relaxation of rule of adjournments only when there is sufficient cause or justifiable cause under the circumstances. It cannot be disputed that unnecessary and repeated adjournments are deprecable and ought not to be encouraged. But imposing appropriate costs may prevent the repeated adjournments.

The reference was also made to the ruling in the case of Noor Mohammed ..vs.. Jethanand and another reported at (2013) 5 SCC 202 : [2013 ALL SCR 673] in which non-appearance of counsel for the appellants for long period and repeated adjournments for that reason was considered as abuse of procedure. Of course, each case need to be examined in the facts and circumstances attending the case.

10. In the case of Rasiklal Manikchand Dhariwal and another ..vs.. M.S.S. Food Products, reported at (2012)2 SCC 196 : [2012(1) ALL MR 968 (S.C.)] principles of natural justice was also considered apart from the procedural provision under Order XVII of the Civil Procedure Code. The Apex Court had deprecated the repeated adjournments observing that a party to the suit is not at liberty to proceed with the trial Court at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. It is expected by the Supreme Court that the parties to a suit whether it is plaintiff or the defendant must cooperate with the trial Court in ensuring effective work on the date of hearing for which the matter has been fixed for hearing. If the party fails or avoids to cooperate, they can do so at their own peril.

11. To my mind, therefore, considering the rulings cited (supra) there is no doubt that repeated adjournments are deprecable particularly when there is no just and sufficient cause for seeking adjournments by either of the parties to the suit. The adjournments are bound to be discouraged at least by imposing the costs sufficient enough to compensate the other party who sacrifices its time and money to engage Counsel for to proceed with the trial while it is the duty of the trial Court to ensure the progress in the suit and expeditious trial so that the suit can be disposed of as early as possible. At the same time, one cannot forget in the larger interest of justice so that if any application for adjournment is rejected, the effect of such refusal or rejection can also be borne in mind while granting or refusing the permission to cross-examine the witness already examined; subject to reasonable costs. The trial Court can ensure that other side to the suit trial is reasonably compensated while defaulting party is made to pay sufficient and reasonable costs for indulging in adjournment, before drastic action of closure of the evidence.

12. Bearing these principles in mind and considering the facts and circumstances of the case in hand, it does appear that the defendants were disabled from the proceeding with the trial for the reason of absence of their Counsel due to the fact that he had gone out of town and further when the Counsel was present he needed instructions to cross-examine the witness and, therefore, adjournments were sought.

13. In such cases, refusal to grant permission to cross-examine the witness on the ground that repeated applications were made for adjournments may be harsh particularly when it has to be considered that litigant shall not suffer due to sudden absence of his Counsel or due to the fact that Counsel was not sufficiently instructed to proceed with the cross examination. In such cases, I feel that other side can be compensated with reasonably sufficient costs so that if the party seeking permission to proceed with the trial can go ahead with the trial while at the same time, it must compensate the other side with costs. This can be done before harsh decision to close the evidence in the case.

14. In view of above, the writ petition needs to be allowed.

15. In the result, the writ petition is allowed. The impugned order is set aside subject to petitioners/defendants paying costs in the sum of Rs. 5,000/- payable to the respondents/plaintiffs in the trial Court as condition precedent for permission to cross-examine the witness examined on behalf of the plaintiff No.1. It is further made clear that the petitioners/defendants shall proceed with the cross examination on date fixed by the trial Court without any excuse after payment of costs, failing which the trial Judge may take further steps to proceed with the trial and to complete it as expeditiously as possible and in any case preferably within a period of four months from the date of receipt of the writ, since the trial is pending at the stage of recording evidence.

16. Since the learned counsel for the respondents/plaintiffs is personally attending the trial at Zari-Jamni, Taluka Pandharkawada, learned counsel for the petitioners/defendants to inform the petitioners that they shall take care to see that no further adjournments are sought, and shall cooperate with learned trial Judge for early disposal of the suit.

Writ Petition No.2852 of 2014 is allowed accordingly. Rule is made absolute in above terms. No order as to costs.

17. Authenticated copy of this order be supplied to the learned counsel appearing for both the parties.

Petition allowed.