Radhelal and Others vs Padumlal and Others

Sunil Kumar Sinha, J.—Heard.

The petitioners/plaintiffs have filed this Writ Petition under Article 227 of the Constitution of India challenging the validity of the order dated 24-1-2008 passed by Civil Judge Class I, Sakti in Civil Suit No. 220-A/2002. It appears that by the said order, the Trial Court has closed the rights of the plaintiffs to adduce their evidence after rejecting their application filed under Order 17 Rule 1 of the Code of Civil Procedure.

Learned Counsel for the petitioners submits that the main ground taken by the Trial Court is that many adjournments were given to the plaintiffs to adduce their evidence, but since they could not produce their witnesses, no further opportunity is to be given to them, which is not in accordance with law. He submits that in fact, the Trial Court would have seen the cause shown by the plaintiffs for taking adjournment on a particular day and it should not have gone into the circumstances prevailing beyond the date on which adjournment was being sought. He relied on the decision rendered in the matter of State Bank of India Vs. Km. Chandra Govindji, .

I have heard learned Counsel for the petitioners at length and have also perused the records of the writ petition.

A perusal of the impugned order would show that this matter was posted for plaintiffs'' evidence for so many times and on 5 occasions, i.e., 25-2-2005, 8-2-2006, 8-3-2006, 4-4-2006 and 11-10-2006, the witnesses of the plaintiffs were present, but their evidence could not be recorded on these dates either on account of adjournments being sought by the defendants or on account of paucity of time with the Court. Therefore, it cannot be said that the plaintiffs were not interested in prosecuting their case and they were not producing their witnesses before the Court, rather, it appears that they had produced their witnesses many times, but on one ground or the other, their evidence could not be recorded.

Moreover, in the matter of State Bank of India v. Chandra Govindji (KM) (supra), in context of Order 17 Rule 1, CPC, the Apex Court in Para 7 held that in ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which adjournment is sought for. The earlier adjournment, if any, granted would certainly be for reasonable grounds and that aspect need not be once again examined if on the date on which adjournment is sought for the party concerned has a reasonable ground. The mere fact that in the past adjournments had been sought for would not be of any materiality. If the adjournment had been sought for on flimsy grounds the same would have been rejected.

In the present case, on the date of hearing of the case, the petitioner had moved an application contending that there was some bereavement in the family of the plaintiffs and on the said date, 10th day ceremony was going on, therefore, the plaintiffs and their witnesses have not appeared in the Court and on this ground; adjournment was sought.

In the opinion of this Court, if the grounds raised by the plaintiffs have not been held to be factually incorrect, it was a reasonable and sufficient ground for the plaintiffs to sought adjournment from the Trial Court. The Trial Court committed error of law in not awarding an opportunity to the plaintiffs to adduce their evidence and in the facts and circumstances of this case, the order of the Trial Court deserves to be set aside.

Accordingly, the impugned order dated 24-1-2008 passed by the Trial Court is hereby set aside.

It is directed that the Trial Court shall fix a new date for plaintiffs'' evidence and on that date, the plaintiffs shall examine all their witnesses and no further adjournment shall be granted to them for adducing their evidence. If the evidence of the plaintiffs is not completed in one day, it will continue on the subsequent dates also, till its completion. Thereafter, the matter shall be fixed for defendants'' evidence and the suit would be decided in accordance with law.

It is directed that this order shall subject to payment of cost of Rs. 1000/- by the plaintiffs to the defendants, which shall be paid/deposited by them prior to the date of their evidence fixed by the Trial Court, failing which this order shall have no force. No order as to cost.