Kan Mal and Another vs Kedar Mal Jagotia

Milap Chandra Jain, J.—This revision petition has been filed against the order of the learned Munsiff (East), Bhilwara dated November 26, 1990 by which he has closed the cross-examination of the plaintiff Kedarmal PW-1. The facts of the case giving rise to this revision petition may be summarised thus.

November 26, 1990 was fixed for the plaintiff''s evidence. On this day, the exmination-in-chief of the plaintiff Kedarmal PW-1 was recorded before lunch. The learned counsel for the defendant No. 1, Shri Laxmilal Kothari Advocate, and the learned counsel for the defendant No. 2, Shri Chandra Singh Bolia Advocate, did not appear in the Court for cross-examining the plaintiff Kedarmal PW-1 till 4.30 P.M. and the learned Munsiff closed his statement by his order under challenge.

It has been contended by the learned counsel for the defendant-petitioners that the counsel for the defendant-petitioners went to the trial Court in the early hours on November 26, 1990 to cross-examine the plaintiff Kedarmal at that time the trial court ordered that the case would be taken up after lunch break for cross-examination; when the counsel for the defendant went to trial Court to participate in the proceedings, the trial Court was busy in recording the statements of the witnesses in a criminal case, after doing works in other Courts the counsel again went to the trial Court to cross examine the plaintiff and there he came to know that the statement of the plaintiff Ke''darmal PW-1 has been closed without cross-examination. He further contended that the learned trial court had no jurisdiction to close the statement of Kedarmal PW-1 particularly when the counsel for the defendant appeared before the Court many times on that day, the trial court should not have passed such an order before closing hours of the day, the counsel for the defendants submitted an application the same day before the trial court along with the affidavits of Shri Laxmilal Advocate and Shri Chandrs Singh Bolia Advocate and the trial Court dismissed it the same day without assigning sufficient reasons. He also contended that on that date the case was adjourned to 11-2-91 for recording the statements of the remaining witnesses of the plaintiff and as such closure of the plaintiffs cross-examination was meaningless, the said affidavits have not been properly recorded, note given below the statement of Kedarmal PW-1 that the defendant''s counsel do not want to cross-examine is wholly wrong and it simply shows that the trial Court is highly prejudiced with the defendants. He lastly contended that the suit is for the ejectment of the defendants and they would be greatly prejudiced if they do not get an opportunity to cross-examine the plaintiff Kedarmal PW-1.

Admittedly, the examination-in-chief of the plaintiff Kedarmal PW-1 was recorded on 26-11-90. It is stated in para No. 2 of the revision petition as under:--

"That the counsel for the defendant petitioner went to the trial court in the early hours of the day i.e. on 26-11-90 and he was prepared to cross-examine the plaintiff and to get his statement recorded. At that time the trial court ordered that the counsel for the defendant should come after lunch break. When the counsel for the defendant went to the trial Court to participate in the proceedings then the trial Court was busy in recording the statement of the witnesses in criminal cases. Since the counsel for the defendant No. 2 was busy in his work in other courts because of the reason that, Addl. P.P. was sick and hence when he went to the trial Court to cross-examine the plaintiff then he came to know that the trial Court has concluded the statement of the plaintiff by closing the evidence of the plaintiff without cross-examination."

Shri Laxmilal Kothari Advocate has stated in paras No. 2 and 3 of his affidavit as follows:

^^�2� eSa ''kiFkiwoZd fuosnu djrk gw� fd vf/koDrk tks Lo;a oknh gS ls eq>s vf/koDrk izfroknh ua- 1 fuosnu fd;k fd vkt Jheku ,- Mh- ts- lk- dh vnkyr esa nks eqdnes cgl esa yxs gq;s gS rFkk vU; vnkyr esa Hkh vkSj isf''k;ka cgl dh gS vr% vkt ftjg ugha gks ldsxh bl ij oknh tks Lo;a vf/koDrk us dgk fd eSa ikap cts rd ;gha gw� blds i''pkr~ yap ckn vk;s rks ,- ih- lk- QkStnkjh izdkj.k esa c;ku djk jgs Fks vkSj dqN nsj ckn vkus dk dgk xjt fd izfroknh us ftjg djus esa dksbZ ysrykyh ugha dh gS A

�3� eSa ''kiFkiwoZd fuosnu djrk gw� fd blds i''pkr~ pkj cts vk;s rks irk pyk fd izfroknh dk vf/kdkj oknh ls ftjg djus dk cUn dj fn;k A**

Shri Chandra Singh Bolia Advocate has stated in para No. 1 of his affidavit as under:

^^�1� eSa ''kiFkiwoZd fuosnu djrk gw� fd mDr izdj.k esa vkt lk{; oknh gsrq fu;r gS ftlesa oknh dh eq[; ijh{kk yh tk pqdh Fkh A oknh dks losjs dgk x;k Fkk fd yUp ckn ftjg dj yh tkosxh fdUrq vf/koDrk foi{kh la- 2 tc vnkyr esa vk;s rks vU; QkStnkjh eqdnesaa esa , ih ih c;ku djk jgs Fks bl dkj.k ckn esa vkus dks foo''k gq, A pwafd vkt ,fM- ih- ih- chekj gksus ls dk;Z dh vf/koDrk gksus ls ckn esa pkj cts vnkyr esa gkftj gqvk rks tkfgj vk;k fd ftjg cUn dj nh xbZ gS A vf/koDrk izfroknh la- 2 vkt dk;Z dh vf/kdrk ds ctg ls okil U;ku;y; esa nsjh ls vk;s A vU; isf''k;ksa esa O;Lr jgs A izfroknh la- 2 cqykus x;k o okil U;k;ky; dks fuosnu fd;k fd is''kh djkdj vk jgs gS A**

It is clear from the affidasvit of Shri Laxmilal Advocate that he himself did not want to cross-examine the plaintiff Kedarmal PW-1 on 26-11-90 on account of his many other cases fixed for hearing before other Courts. It is also clear from the affidavit of Shri Chandar Singh Bolia Advocate that he also wanted to cross-examine the plaintiff Kedarmal PW-1 after lunch break. To say the least, the first two sentences of para No. 2 of the revision petition, quoted above, are inconsistent with the said affidavits. The averments made in these two sentences of para No. 2 of the revision petition do not at all find mention in the application moved on 26-11-90 after the statement was closed. It can well be said that the learned trial Court did not itself discontinue the statement of the plaintiff Kedarmal PW-1. It must have been done at the instance of the learned counsel for the defendants as is apparent from these affidavits. The learned Munsiff has observed in his order dated 26-11-90 passed on the application of the defendants moved after 4.30 P.M. as follows:

^^tgka rd nksuksa vf/koDrkx.k ds bl ekeys esa mifLFkfr gksus dk iz''u gS ;g lgh gS fd nksuksa vf/koDrkx.k lqcg ls vusd vkoktsa fnyk;s tkus ds mijkUr nksigj ds ckn djhcu 3-30 cts U;k;ky; esa mifLFkr gq;s Fks ml le; fulUnsg vkijkf/kd izdj.k esa c;ku py jgs Fks A bl le; vf/koDrkx.k us mu c;kuksa ds i''pkr bl izdj.k esa xokg ls ftjg djus dk dFku dgk Fkk rc vkijkf/kd izdj.k esa tc djhcu 3-15 ds vklikl c;ku [kRe gq, rks nksuksa vf/koDrkx.k 4-20 rd Hkh U;k;ky; esa mifLFkr ugha gq, ,oa xokg lqcg ls gh vius c;ku iw.kZ djus ds fy, iz;kljr jgk A pwfd nkuksa vf/koDrkx.k dks oknh ls ftjg djus dk iw.kZ vDlj 4-30 rd fn;k x;k Fkk vkSj muds }kjk ftjg ugha djus ls izfroknhx.k dh vksj ls ftjg ugha cjkcj ekurs gw, ftjg lekIr dh xbZ Fkh A**

It is clear from the application of the defendants and the affidavits of their counsel Shri Laxmilal Kothari and Shri Chandra Singh Bolia Advocates that they did not appear before the learned Mnsiff prior to the closure of the cross-examination as they were busy in other Courts. Provisos (c) and (e) of Sub-rule (2) of Rule 1 of Order 17 C.P.C. run as under:--

"(c) the fact that the pleader of a party is engaged in another Court, shall not be ground for adjournment.

(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-exmination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid."

In view of these facts, circumstances and above quoted provisions of law, the learned Munsiff was perfectly justified to close the statement of the plaintiff Kedarmal PW-1, By C. P.C. (Amendment) Act, 1976, the law relating to adjournment has been made more stringent but in practice the adjournments are sought on any pretext and are granted. The provisions of Order XVII, C. P. C. are observed more in their breach than in compliance. This is resulting in manifold increase in the age of litigation and huge accumulation of arrears of cases in almost all Courts and the poor litigants suffer. They are put to great inconvenience and unnecessary expenses. The Presiding Officers and the practising lawyers are not put to any loss as the former get their salary and the latter get their fees. This state of affairs is bringing disrepute to the administration of justice.

In view of the frequent requests for adjournments without permissible ground, it is becoming difficult for the presiding officers to give the required quota of work as per the Circular of this Court. To check further deterioration, it is necessary and expedient that the provisions of Order XVII, C.P.C. are complied with in letter and spirit. Refusal of adjournments on impermissible grounds will enable the juniors to get briefs.

Consequently, the revision petition is summarily dismissed.