Hari Ram and another vs Bitti @ Pyari

Rakesh Sharma, J.—It transpires from the record that this second appeal was presented before this Court in the year 1991. The appeal was dismissed vide order dated 21.7.2003 on the ground that there were concurrent findings of the facts recorded by the two Courts below and no specific question/questions of law are involved in this appeal. Subsequently, the review of the judgment dated 21.7.2003 was sought by learned Counsel for the appellant by riling a Review Petition No. 228 of 2003 before this Court and vide order dated 20.4.2005, this Court allowed the review petition and recalled the order dated 21.7.2003. It was also directed the matter be listed before appropriate Bench in the first week of May, 2005 when the Hon''ble Judge may hear the parties again as to what is exactly the substantial question of law involved in this appeal as observed in the order dated 7.3.1991 passed by Hon''ble K. C. Bhargava, J. (as he then was) and thereafter the appeal shall be heard and decided on merits.

As per ordersheet, the case was listed on 20.5.2005. Thereafter, it was listed on 6.7.2005 and on the request of Sri Vinod Kumar Misra holding brief of Sri Aseem Chandra, the case was adjourned. However, it was directed that on the next date, if the case is not argued, stay order, if any, shall stand vacated. Subsequently, the case was listed on 11.7.2005, on which date, the case was adjourned. On 19.7.2005, learned Counsel for the appellant was not present and as such, the case was dismissed in default. However, vide order dated 19.4.2006, the case was restored to its original number. Thereafter, the case was listed on 5.7.2007, on which date, again learned Counsel for the appellants was not present and as such, the case was dismissed in default. However, vide order dated 6.8.2007, the case was restored to its original number.

When the case was listed on 6.8.2007, on the undertaking given by the learned Counsel for the parties, the case was adjourned for 14.8.2007 and it was clarified that the case would not be adjourned on that date but when the case was listed on 14.8.2008, 29.8.2007, 31.8.2007, 11.9.2007, 17.9.2007, 20.9.2007, 4.10.2007, 27.11.2007, 7.12.2007, 11.1.2008, 29.1.2008, 2.4.2008, 18.4.2008, the case was adjourned on one pretext or the other. Thereafter, when the case was listed on 24.7.2008, considering the submission of learned Counsel for the respondents, this matter was directed to be listed in the next cause list and on the request of learned Counsel for the respondents, it was clarified that on the next date of listing, the case will not be adjourned on the ground of illness slip but again when the case was listed on 19.8.2008, the case was adjourned.

Today when the case called out, again an illness slip has been sent by learned Counsel for the appellants.

This Court is bound and has to respect the observations and directions made by this Court in its order dated 24.7.2008, where this Court has already taken note that the matter was very old and the appellants are in unlawful possession of the property in dispute and they are enjoying the benefits of the property by virtue of continuance of the proceedings of this Court, no adjournment can be allowed.

In Dr. Buddhi Kola Subbamo v. K. Parasaran and others, AIR 1996 SC 2687 the Hon''ble Supreme Court has observed as under :

"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."

In Nirankar Nath Wahi v. Fifth Additional District Judge, Moradabad, 1984 (10) ALR 492 (SC) = AIR 1984 SC 1268 the Hon''ble Apex Court held that a party should not be permitted to abuse the process of the Court but at the same time, a party should be given a reasonable time considering the dimensions of the matter bearing in mind that justice must also appears to have been done and a short adjournment with a degree of understanding should be granted to make an alternative arrangement. However, the case is to be examined in facts and circumstances involved therein and under no circumstances, the process of the Court should be permitted to be abused by any litigant.

In R. Vishwanathan and others v. Abdul Wazid, AIR 1963 SC 1 the Hon''ble Apex Court while dealing with a similar issue held that seeking adjournment either to avoid a particular Bench or to enable a particular lawyer to appear cannot be held to be justified, as such an attempt at the behest of the litigant may be either for Bench hunting or for adopting dilatory tactics and in case the conduct of the litigant shows such an attitude, the refusal of adjournment is justified.

The Hon''ble Apex Court in Bashir Ahmed v. Mehmood Hussain Shah, AIR 1995 SC 1857 while considering the provisions of Order XVII, Rule 1 (2) proviso (d), C.P.C., which provides that illness of a Counsel cannot be a ground for adjournment unless the Court is satisfied that the party applying for adjournment could not have engaged another Counsel in time, held as under :

"Therefore, the Court is enjoined to satisfy itself in that behalf, if the party engages another Counsel as indicated therein, then the need for further adjournment would be obviated. The words "in time" would indicate that at least reasonable time may be given when a Counsel suddenly becomes unwell. There should be reasonable time for the parties to make alternative arrangement, when sufficient time intervenes between the last date of adjournment and the next date of trial. In such a case, adjournment on the ground of Counsel''s ill health could be refused and the party would bear the responsibility for his failure to make alternative arrangements." (Emphasis added).

The Hon''ble Supreme Court in Salem Advocate Bar Association (H) v. Union of India, 2005 (34) AIC 249 (SC) = AIR 2005 SC 3353 while dealing with the issue of adjournments under Order XVII, Rule 1, C.P.C., held that the case can be adjourned by the Court, provided the party satisfies the Court that there exists special and extraordinary circumstances. The Court while considering such a prayer has to keep in mind the legislative intent to restrict the grant of adjournments, as it cannot be claimed in a routine manner. The circumstances seeking adjournment must be shown to be beyond the control of such a party.

Similarly, in Shibanand Mukherjee v. Copal Chandra De, 2005 (11) SCC 557 the Hon''ble Supreme Court dealt with the similar issue of adjournment, wherein the. case was dismissed by the High Court refusing the adjournment and the application for restoration was also rejected. The Apex Court restored the matter with the condition that a sum of Rs. 50,000/ would be paid to the other side as compensation. In the said case also, the lawyer did not appear because of ailment and had sent the illness slip.

In Syed Naseem Ahmed v. Mohd. Abudul Hakeem, 2005 (12) SCC 302 the Hon''ble Apex Court held that inability of lawyer to attend the Court cannot be a ground for adjournment and dismissed the appeal without adjourning the case further.

Thus, from the above, the legal proposition emerges that adjournment cannot be sought by a litigant in a routine manner. It must be a bona fide attempt, on behalf of the party. Illness of the Counsel cannot be a ground of seeking adjournment. In certain cases, Court can grant short time so that an alternative arrangement be made it cannot be a means for Bench hunting or dilatory tactics. Where there are more than one Counsel, illness of one Counsel is no ground to adjourn the case.

Under these circumstances, the appeal is dismissed for want of prosecution. Interim order, if any, stands vacated.

Let the record of the Lower Court be sent back to the Court concerned by the registry within a week. This order shall also be sent to the concerned District Judge, so that the judgment and order passed by the Lower Court may be executed without any further loss of time.