High Court

Legal Reasoning

HON’BLE MR. JUSTICE A K GOSWAMI JUDGMENT AND ORDER(Oral) Heard Mr.J.Deka, learned cousnel for the petitioner. Also heard Mr. U B Sarma, learned counsel appearing for Respondents No.1 to 5. None appears for the Respondnent No.6. 2. By this application, the petitioner calls into question the legality an d validity of the order dated 27.8.2004 passed by the learned Civil Judge (Sr.Di vision) No.1, Kamrup, Guwahati in T.S.No.162/2003, whereby prayer for adjournmen t of cross-examination of PW1 and PW2 was rejected, thus closing their cross-ex amination. 3. The petitioner, as plaintiff, filed a suit for damages and compensation for defamation and permanent injunction against the present respondents no.1 to 5, who were defendants no. 1 to 5 in the suit. The suit was registered as T.S.No .162 of 2003. 4. By an order dated 8.3.2004, while rejecting the application of the defen dants no.1 to 5 for granting time to file written statement, the learned trial court directed that the suit would proceed ex-parte against them and fixed 3.4.2 004 for evidence of witnesses of the plaintiff on affidavit at a time. It appear s that plaintiff prayed for time on 3.4.2004, 14.5.2004 and 25.6.2004 for filing the evidence on affidavit of his witnesses. By the order dated 25.6.2004, the l earned trial court had again fixed 8.7.2004 for filing evidence of the witnesses of the plaintiff. 5. On 8.7.2004, the plaintiff filed the evidence on affidavit of three witn esses including the plaintiff himself as PW1. PW2, at the relevant point of time , was holding the post of Deputy Inspector General of Police, Northern Range and PW3 was a retired Additional Chief Engineer (PWD). The plaintiff himself was ho lding the post of Director General of Police, Assam at the time of filing the ev idence on affidavit. The learned trial Court fixed 27.8.2004 for cross-examinati on of the witnesses of the plaintiff. On 27.8.2004, two petitions came to be fil ed by the plaintiff. By petition no. 2386/04, the plaintiff prayed for adjournme nt of his cross-examination. By petition no.2394/04, the plaintiff prayed for ad journment of cross-examination of PW-2. The PW3, though, was present. As noted earlier, the learned trial Court rejected the said petitions an 6. d closed the cross-examination of PW1 and 2 with the observation that the conseq uence and effect of closure of their cross-examination on the evidence on affida vit would be considered in due course. The order dated 27.8.2004 shows that thou gh PW3 was partly cross-examined, subsequently, on the request of the learned co unsel for the defendants, cross-examination was also deferred to the next date f ixed. 7. Mr. J Deka, learned counsel for the petitioner submits that the learned trial court totally mis-directed itself in rejecting the petitions filed by the plaintiff on the mis-conceived notion that as 3 adjournments had already been granted to the plaitniff, no further adjournment could be granted to the plainti ff irrespective of the cause shown for adjournment. It is submitted by him that if circumstances are beyond the control of the party, it is always permissible for the trial Court to grant adjournment inspite of party already availing thre e adjournments earlier. It is submitted by him that petitioner had shown valid a nd sufficient cause for grant of adjournment and such prayer for adjournment was necessiated by reasons beyond the control of the petitioner. The learned couns el relies upon the decision of the Apex Court in Salem Advocate Bar Association, Tamilnadu -vs- Union of India, reported in AIR 2005 SC 3353. 8. Mr. U B Sarma, learned counsel appearing on behalf of respondents no. 1 to 5, on the other hand, submits that the plaintiff was needlessly delaying the proceeding. In view of the provisions contained in Order XVII Rule 1 CPC, the le arned trial Court rightly passed the impugned order and no interference with the said order is called for, he submits. 9. In the petition filed praying for grant of adjournment in respect of PW 1, it was stated that the plaintiff had to go to Delhi on official Government as signment including some official meetings commencing from 25.8.2004 and that he would be returning only on 28.8.2004. That he was leaving for Delhi on 24.8.200 4 had been communicated to his counsel by his letter dated 18.8.2004 which was received by the counsel on 23.8.2004. In the said petition, it was stated that h is other two witnesses, namely, PW2 and PW3 would be present in the court to fac e cross-examination. 10. It so transpires that another petition had to be filed praying for grant of adjournment for cross-examination of PW2. In the said petition it was stated that there was a bomb blast on 26.8.2004 at Tangla within the jurisdictional ar ea of PW2 and he had to rush back to take control of the law and order situatio n. 11. The order dated 27.8.2004 reads as follows: (cid:28)27.8.04 Both parties are present through ld. Advocates. By petition No.2386/04 u/o 18 R. 3A R.W.Sec. 151 & 148 C.P.C. Plaintiff has prayed adjournment for cross examina tion of P.W.1 interalia on the ground that PW1 who is D.G.P. is at Delhi to atte nd urgent official duty. Also by petition No.2394/04 plaintiff has prayed for adjournment for cross exami nation of P.W.2 interalia on the ground that P.W.2 who is D.I.G.of police is at Tangla to attend law and order problem. P.W.3 R.N.Deka is present. Ld. counsel f or plaintiff while praying for adjournment has relied on a decision reported in 1992 (2) GLR 450 in support of his prayers. Heard ld. counsel for plaintiff. He has submitted that cross examination of P.W. 1 and P.W.2 may be adjourned and today P.W.3 may be cross examined. Ld. counsel for defendant has raised objection to the prayers of adjournment. He has submit ted that plaintiff has already been granted three adjournments and further adjou rnment at the stage of hearing cannot be allowed in view of provision of Or.17 R .1 proviso and also that O.18 R.3(A) is not applicable at this stage. Plaintiff has already filed affidavit on evidence in chief for 3 P.Ws. after ava iling 3 adjournments. Hence considering all facts and circumstances in its entir ety, prayer for adjournment of P.W.1 and P.W.2 is hereby rejected and they will not be allowed for further cross examination also. Consequence of their evidence in-chief will be decided in due course. P.W.3 is partly cross examined and defe rred till next date as the ld. counsel for defendant intends to cross examine i n respect of some other news items published in different issue of News papers/ document. For clarification of those matters both parties will be heard. Fix 10.9.04 for hearing on this point. (cid:29) 12. Order XVII Rule 1 CPC, which deals with adjournments, provides that the court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time, adjourn the hearing o f the suit for reasons to be recorded in writing. Proviso to Order XVII Rule 1 C PC, provides that no such adjournment shall be granted more than three times to a party during hearing of the suit. Order 17 Rule 2 CPC deals with costs of adjournment. It states that in e 13. very such case the Court shall fix a day for the further hearing of the suit, an d shall make such orders as to costs occasioned by the adjournment or such hig her costs as the Court deems fit. Proviso (b) to order XVII Rule 2 CPC provides that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party, In Salem Advocate Bar Association (supra), the Apex Court in paragraph 3 14. 1 laid down as follows: (cid:28)31. While examining the scope of proviso to Order XVII, Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso t o Order XVII, Rule 2 incorporating clauses (a) to (e) by Act 104 of 1976 has bee n retained. Clause (b) stipulates that no adjournment shall be granted at the re quest of a party, except where the circumstances are beyond the control of that party. The proviso to Order XVII, Rule 1 and Order XVII, Rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the ci rcumstances are beyond the control of the party. In such a case, there is no res triction on 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 thir d adjournment, no further adjournment would be granted. There may be cases beyon d the control of a party despite the party having obtained three adjournments. F or instance, a party may be suddenly hospitalized on account of some serious ail ment or there may be serious accident or some act of God leading to devastation. It cannot be said that though circumstances may be beyond the control of a part y, further adjournment cannot be granted because of restriction of three adjourn ments as provided in proviso to Order XVII Rule 1. (cid:29) 15. From the ratio of the aforesaid judgment, it becomes clear that proviso to Order XVII Rule 1 and Order XVII Rule 2 have to be read together conjointly a nd if it is so read, Order XVII does not forbid grant of adjournment beyond thr ee times when the circumstances are beyond the control of the party. In such a c ase, there is no restriction on number of adjournments that could be granted. Th e Apex Court made it explicitly clear that it cannot be said that even if the ci rcumstances are beyond the control of a party, after having obtained third adjou rnment, no further adjournment would be granted. 16. A perusal of the impugned order would go to show that the focus of the learned court below was only on the number of adjournments and not the cause s hown in the petitions filed. The impugned order was passed wholly on the conside ration that three adjournments were already granted to the plaintiff and therefo re, one more adjournment could not be granted. 17. The PW1, i.e., the plaintiff had to go to Delhi on official duty. He was holding a very responsible post, namely, Director General of Police for the Sta te of Assam. Official meetings were slated on 25.8.2004 and so he left for Delhi on 24.8.2004. That he would be going to Delhi for official engagements was also communicated by him to his counsel before he left for Delhi. This would go to show that petitioner was taking active step in the matter. PW2 had to rush to Ta ngla in the wake of a bomb blast though he was earlier available for the purpose of his cross-examination. The event of bomb blast is an incident which could no t have been foreseen. What are circumstances beyond the control of a party would have to recei 18. ve pragmatic consideration at the hands of the court. No doubt it cannot be fanc iful. Adjournments are also not to be granted on mere asking. PW1 and PW2 were o ccupying very high position in hierarchy of the administration. All official dut ies involving the affairs of the State must take precedence. In that view of the matter, causes shown must be considered to be arising out of circumstances beyo nd the control of the plaintiff. For responding to the call of duty, the plainti ff cannot be penalised. 19. Mr. U B Sarma, learned counsel for the defendants no.1 to 5 submits tha 20. t parties may be directed to appear before the trial court on 4.11.2013 to recei ve further orders. Ordered accordingly. Registry will forthwith send back the LC Rs.