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Judgment
T.N. Singh, J.—Substantial justice or justice according to law? Indeed, ''justice'' is no cloistered virtue. It is for every man and every day. It has a soothing grace for all situations. It becomes ''injustice'' when dispensed brusquely. Petitioner''s grievance is precisely this.
The validity of two short orders tendered on 25.4.84 and 26.4.84 are challenged in this case. Strictly speaking, as also conceded by learned Counsel for the O.P.s, the substance of the grievance is that Order 17, Rule 1 CPC has been violated by the trial court. Mr. Khatri''s contention if that the provision does not apply. Why? Because, both orders appertained disposal of an application made u/s 10 read with Section 151 CPC by the Defendant-revisionist. Evidently, the prayer was for stay of the suit and the application was filed on the ground of pungency of another suit in another court.
On a plain reading of the provisions of Rule 1 of Order 17, I entertain no doubt at all that the expression ''''any stage of the suit" embraced within its ambit disposal of any petition filed in the course of hearing and final disposal of any suit. The question really is, when any application is filed at any stage of the suit with the object of securing an adjournment whether "sufficient cause" for allowing the prayer has been made out. According to me, therefore, it is the duty of the court to consider the sufficiency of the cause for which an adjournment is sought. If the court is not satisfied that there was "sufficient cause" to adjourn the hearing it shall be within its competence to exercise its discretion to reject the prayer. Even when the prayer is allowed the court must be satisfied, in exercising its discretion in doing so, that there existed "sufficient cause" for which progress of hearing the suit has to be deferred or adjourned. This is the minimum requirement of the rule of fair trial. Each party has the right to demand reasonable opportunity to prove its case but none has the right to stagger or stall the progress of the suit without reasonable or "sufficient" cause. There is no warrant for the proposition that prayers for adjournment made on different grounds for different purposes at different stages of any suit cannot be considered in terms of Rule 1 of Order 17. I, therefore see no force in Khatri''s submission that the provisions of Order 17, Rule 1 has (sic) no application to the instant case.
However, the facts of the case pictured in the instant application and its annexure project a glooming scenery. Indeed a very disturbing aspect of uneven dispensation of justice. (sic) is pictured in this case. My attention is drawn to the submissions made in paragraphs 4 and 6 of the petition, as also to Annexures (sic) 6, 7 and 8. Mr. Sarma for the revisionist relying thereon submits that the cause of ''justice'' has sufferef in the instant case though Mr. Khatri submits that what has been done by the court below is that it rendered ''substantial justice''. It appears that on 23.4.84 the revisionist as Defendant filed an application for adjournment in T.S. No. 1/84 which was pending disposal in the court of Sadar Munsirf, Tezpur. The prayer was propped up on three grounds. Firstly, the certified copy of the suit filed by the Defendant was applied for and was awaited and that the same was necessary for the hearing of the matter regarding of T.S 1/84. Secondly, Sri Haramba Sarma, Senior Counsel representing the Defendant, was suffering from eye trouble and was unable to assist the court on that date. Thirdly, the suit had been filed only in the month of January 1984 and it was not the intention of the Defendant to stall progress of the suit. Indeed, that was the first date fixed in the case for hearing of the ''stay matter'' only. What bears stronger emphasis is the ancillary ground that the learned Munsiff was not taking up other cases on that date as he was under orders of transfer, before me, Counsel stressed this fact to buttress the submission on that date at least there existed ''''sufficient cause" for adjourning the hearing of this case also. Because justice must be dispensed in an even manner.
A perusal of Annexures 5, 6, 7 and 8 has convinced me that the submissions made in the petition for adjournment and assessed before me, as alluded, had much truth and validity. Indeed, as mentioned in Para 6 of the instant petition in several cases in which Sri Haramba Sarma appeared for other parties the prayers for adjournment on the ground of his eye trouble was excepted by the learned Munsiff and in some cases on the ground of his transfer no hearing was taken up. These are indeed very disturbing aspects of this case.
Now let me see if the impugned order rendered on 23.4.84 can stand the tort of the judicial scrutiny. The various grounds on which "sufficient cause" the revisionist Defendant sought to make out, were considered or not? Unfortunately, the impugned order appears to have been passed on an entirely extraneous circumstance unconnected with the "cause". Learned Munsiff acted tangentially and failed to consider the "cause" pleaded by the party. He held that Mr. Dutta the junior counsel assisting Sri Sarma was present in the court was ought to have made his submission on the application for stay because he bad not withdrawn from the suit and was present in the court in connection with other cases. That is the burden of the order rendered upon hearing Sri Sarma and not Sri Dutta. I cannot conceive of a grosses violation of the provision of Order 17, Rule l or even of principles of natural justice which is the bedrock of fair procedure for fair trial. The other grounds adverted to in the petition which ought to have been considered to render a decision on the sufficiency of the "cause" for adjournment were totally overlooked or ignored and the petition was rejected without rejecting the other causes. I find it, therefore, very difficult to hold, in any view of the matter, that the application for adjournment was properly disposed of in due compliance with the statutory provision. The order manifestly speaks of total non-application of mind to the relevant statutory provision. Such an order in any view of the matter cannot be accepted as a ''judicial'' order or an order passed in judicial exercise of its discretion by the court as required by relevant provision.
For the foregoing reasons I have no hesitation at all to hold that the impugned order passed on 23.4.84 has no legs to stand and must fail to the ground and die. However, the further question is, whether the next order passed on 26.4.84 will revive it. Because, according to Mr. Khatri this order did ''substantial justice''. By this order final decision was rendered on the application for stay of the suit. It was rendered against the Defendant applicant and rendered behind his back. Where is, therefore, the question of substantial justice. It was a final order rendered against him, without hearing him, depriving him of the statutory right to apply for stay of the suit. Because, justice to be ''substantial'' must not be ''injustice'' in the sense that decision on merit ought not to be is rendered against a party without hearing him. Learned Counsel Mr. Khatri submits that both parties were present when the order was rendered on 26.4.84. That follows only from the recital in the order that ''both sides filed haziras". However, doubts arise about the fact of the parties being heard because on 23.4.84 itself for "necessary orders" 26.4.84 was fixed. There is a lot of difference between the parties being present and being heard and in this case hearing was preempted earlier on 23.4.84 itself. A bare perusal of this order creates ample room for doubt that the Defendant revisionist was not heard before the order was passed. There is no reference at all in the order that counsel for Defendant applicant had made any submission in support of the application. There may be substantial force in Mr. Khatri''s submission that the order rendered on 26.4.84 was a ''legal'' order in the sense that the provision of Section 10 CPC in terms could not be applicable to the facts and circumstances of the case. That however does not at all end the controversy. Because, the question was and it remained undecided as to whether the court could in the facts and circumstances of the case, invoke its power u/s 151 Code of Civil Procedure. On this aspect of the matter there is no discussion at all in the impugned order. There is a bare reference to the decision reported in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, By that the question of applicability of the provisions of Section 151 CPC cannot be said to be disposed of. What is required is application of mind to particular facts and circumstances of the case in hand to ascertain whether Section 151 could at all be invoked. There is no discussion in the order on this aspect of the matter.
On the other hand, the learned Munsiff exceeded his jurisdiction not only by rejecting the application for stay but by fixing 21.5.85 for exparte hearing of the suit. Mr. Khatri''s stand, therefore, of dispensation of ''substantial justice'' in the instant case must stand firmly demolished. This Court is bound to direct laser beam of Rule of Law to strike down such nor(sic)matively ''judicial'' but factually extra-jurisdictional order which palpably violated the basic principle of hearing parties before a peremptory order was passed. How could the court, without hearing parties, decide whether the case was ripe for exparte hearing? If written statement was not filed on 12.4.84 and prayer was made for the purpose it was because on that date an application for stay of the suit was filed, without giving opportunity to the Defendant revisionist to file written statement no date for exparte hearing could be fixed. This was clearly an extra-jurisdictional exercise. Repeated jurisdictional failure smack of exercise of arbitrary power to defeat and not advance, cause of substantive justice. Even when a ''judicial order'' is passed if" it violates any norm of Rule of law, it cannot be accepted as doing ''substantial justice'' to any cause litigated at a judicial forum.
Mr. Sarma drew my attention to the decision in Nirankarnath (1984) 2 SCC 531 wherein the apex court administered strong caution to those charged with the duty of dispensation of justice to ensure that justice was administered in a just and fair manner. Parties should not be denied reasonable opportunity of hearing at any stage in connection with any grievance; the court must act in a manner as may inspire confidence in the mind of litigant public. Mr. Sarma also relied on a decision of this Court in Civil Revision No. 48/73 rendered on 9.4.81 as digested in 1933 GHC 13. It was held that "even a prayer for adjournment cannot be dealt with and disposed of in a cryptic manner". That the disposal of the application proceeded on proper consideration of the grievance must be manifested in the order appear to be the ratio of the decision. This indeed is the view which I have taken and I have no doubt that this is the only reasonable view which can be taken in such a matter.
For the foregoing reasons this application must be allowed. Accordingly, the impugned orders passed on 23.4.64 and 26.4.84 stand quashed. But care has to be taken to ensure that further progress of the suit is not stalled. Counsel for the parties realising this position, have agreed to appear in the court of learned Munsiff on 8th April 85 for hearing on the application for stay. Let the record be sent down forthwith.
As I was parting with the records or the case, at the bar it was submitted that separate orders need not be rendered in Civil Revision No. 206 to 212/84 because the orders impugned therein suffer from the same infirmity. That is so. Indeed, the orders really have no legal plurality; the same orders, though passed in different cases are assailed in this as well as in all those petitions. In all cases, on the same dates by the same court the impugned orders were passed in the same language on the same subject, each being a duplicate of the other. Accordingly, those petitions are also allowed simultaneously and rules in those cases are also made absolute. This order shall cover in all its aspects the other revision petitions as well.
However, in the facts and circumstances of the case I leave the parties to bear their costs in this Court. Let the records be sent down forthwith.