High Court · 2012

ich is challenged in the petition is quoted here in below: (cid:28)Both parties are represented. Today the Id. Counsel for the plaintiff has vide ptn No 1122/12 prayed to allow another date for cross of P.W.1. Heard and perused. The plaintiff side has already obtained three adjournments for cross of P.W. on 31.03.2012, 27.04.2012 and 28.06.2012. As such the Ptn No. 1122/12 stands rejected. The plaintiff evidence is c losed. Fix 28.09.2012 for evidence of DW. (cid:29) Mr. K. Nandi, learned counsel for the petitioner submits that on 31.03.2 012, adjournment had to be prayed for due to Annual Closing of the Bank and on 2 7.04.2012, there was no alternative but to pray for adjournment for cross-examin ation of P.W.1, who is the Branch Manager, due to statutory audit which was bein g conducted in the bank. On 28.06.2012, the P.W. 1 was out of station and accordingly, adjournmen t was prayed for and was granted. It is also submitted by him that the P.W.1, wh o filed the evidence on affidavit on 23.02.2012, was transferred from State Bank of India, Haiborgaon Branch and was posted at Jorhat Zonal Office and due to un avoidable circumstances, was unable to attend the Court for cross-examination on

16.08.2012. The learned counsel places reliance on the judgment in the case of Salem Advocate Bar Association, T.N. vs. Union of India, reported in (2005) 6 SCC 344 to submit that it is permissible for the trial court to grant more than three a djournments if the circumstances are beyond the control of the party. He submits that if the impugned order is not set aside and a date is not fixed for cross-e xamination of the P.W.1, who is the lone witness, the plaintiff will suffer irre parable loss and injury. Mr. Alamgeer, learned counsel for the opposite party, however, supports the impugned order. In Salem Advocate (Supra) at paragraph 30, the Supreme Court stated thus : (cid:28)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 vie w 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 adjour nment where the circumstances are beyond the control of the party. In such a cas e, there is no restriction on the number of adjournments to be granted. It canno t be said that even if the circumstances are beyond the control of a party, afte r 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 obta ined three adjournments. For instance, a party may be suddenly hospitalized on a ccount of some serious ailment or there may be serious accident or some act of G od leading to devastation. It cannot be said that though the circumstances may b e beyond the control of a party, further adjournment cannot be granted because o f the restriction of three adjournments as provided in the proviso to Order 17 R ule 1. (cid:29) The learned Trial Court rejected the petition solely on the ground that the plaintiff side had already obtained three adjournments without considering t he circumstances in which the adjournment had to be prayed for. As has been noted in Salem Advocate (Supra), it cannot be said that even if circumstances are beyond the control of the party, after having obtained thr ee adjournments, no further adjournment could be granted. Considering the matter in its entirety, this Court is of the considered opinion that one more opportunity needs to be granted for cross-examination of P.W.1 as a last chance. Accordingly, the impugned order is set aside. The parties will appear be fore the learned Trial Court on 04.01.2013 and on that date P.W.1 will appear be fore the learned Court for the purpose of his cross-examination. No prayer for adjournment on behalf of the plaintiff for deferring cross -examination of P.W. 1 shall be entertained by the learned trial Court. The petition is allowed subject to payment of cost of Rs. 2,000/- (Rupee s two thousand) only, to be deposited on 04.01.2013 and the defendant will be al lowed to withdraw the said amount. Heard Mr. K. Nandi, learned counsel for the petitioner. Also heard Mr. M . Alamgeer, learned counsel appearing for the opposite party. The order dated 16.08.2012 passed by the learned Munsiff No.2, Nagaon wh ich is challenged in the petition is quoted here in below: (cid:28)Both parties are represented. Today the Id. Counsel for the plaintiff has vide ptn No 1122/12 prayed to allow another date for cross of P.W.1. Heard and perused. The plaintiff side has already obtained three adjournments for cross of P.W. on 31.03.2012, 27.04.2012 and 28.06.2012. As such the Ptn No. 1122/12 stands rejected. The plaintiff evidence is c losed. Fix 28.09.2012 for evidence of DW. (cid:29) Mr. K. Nandi, learned counsel for the petitioner submits that on 31.03.2 012, adjournment had to be prayed for due to Annual Closing of the Bank and on 2 7.04.2012, there was no alternative but to pray for adjournment for cross-examin ation of P.W.1, who is the Branch Manager, due to statutory audit which was bein g conducted in the bank. On 28.06.2012, the P.W. 1 was out of station and accordingly, adjournmen t was prayed for and was granted. It is also submitted by him that the P.W.1, wh o filed the evidence on affidavit on 23.02.2012, was transferred from State Bank of India, Haiborgaon Branch and was posted at Jorhat Zonal Office and due to un avoidable circumstances, was unable to attend the Court for cross-examination on

16.08.2012. The learned counsel places reliance on the judgment in the case of Salem Advocate Bar Association, T.N. vs. Union of India, reported in (2005) 6 SCC 344 to submit that it is permissible for the trial court to grant more than three a djournments if the circumstances are beyond the control of the party. He submits that if the impugned order is not set aside and a date is not fixed for cross-e xamination of the P.W.1, who is the lone witness, the plaintiff will suffer irre parable loss and injury. Mr. Alamgeer, learned counsel for the opposite party, however, supports the impugned order. In Salem Advocate (Supra) at paragraph 30, the Supreme Court stated thus : (cid:28)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 vie w 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 adjour nment where the circumstances are beyond the control of the party. In such a cas e, there is no restriction on the number of adjournments to be granted. It canno t be said that even if the circumstances are beyond the control of a party, afte r 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 obta ined three adjournments. For instance, a party may be suddenly hospitalized on a ccount of some serious ailment or there may be serious accident or some act of G od leading to devastation. It cannot be said that though the circumstances may b e beyond the control of a party, further adjournment cannot be granted because o f the restriction of three adjournments as provided in the proviso to Order 17 R ule 1. (cid:29) The learned Trial Court rejected the petition solely on the ground that the plaintiff side had already obtained three adjournments without considering t he circumstances in which the adjournment had to be prayed for. As has been noted in Salem Advocate (Supra), it cannot be said that even if circumstances are beyond the control of the party, after having obtained thr ee adjournments, no further adjournment could be granted. Considering the matter in its entirety, this Court is of the considered opinion that one more opportunity needs to be granted for cross-examination of P.W.1 as a last chance. Accordingly, the impugned order is set aside. The parties will appear be fore the learned Trial Court on 04.01.2013 and on that date P.W.1 will appear be fore the learned Court for the purpose of his cross-examination. No prayer for adjournment on behalf of the plaintiff for deferring cross -examination of P.W. 1 shall be entertained by the learned trial Court. The petition is allowed subject to payment of cost of Rs. 2,000/- (Rupee s two thousand) only, to be deposited on 04.01.2013 and the defendant will be al lowed to withdraw the said amount.