Ramchandra vs Narayan and Others

Mahesh Bhagwati

By way of the instant writ petition, the petitioner has beseeched to quash and setaside the order dated 8th December, 2011, whereby the learned trial court did not permit the petitioner to produce the affidavits of two more witnesses in support of his case. Having heard the Learned Counsel for the petitioner and carefully perused the impugned order, it is revealed that the suit has still been pending for recording the evidence of the plaintiff-petitioner.

Learned Counsel canvassed that the petitioner was granted an opportunity to file the affidavit of three witnesses and he filed the affidavits accordingly, but when he implored the court to grant him an opportunity to produce the affidavits of two more witnesses, the prayer was rejected. Learned Counsel submits that the case has still been pending for recording the evidence of the plaintiff-petitioner, yet his prayer was dismissed. Hence, the impugned order dated 8th December, 2011 deserves to be set-aside.

At the very out-set, it is relevant to record that a cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII Rule 1 CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII Rule 1 CPC should be maintained. The Hon''ble Apex Court in the case of M/s. Shiv Cotex Versus Tirgun Auto Plast P. Ltd. & Others reported in 2011 AIR SCW 5789 has categorically deprecated the practice of the courts to grant more than three adjournments for recording the evidence of the parties.

It is not tangible from the perusal of the impugned order as to when the evidence of the plaintiff-petitioner commenced. It is also not tangible as to how many opportunities have been granted by the court to produce the evidence. However, keeping in view the provisions of CPC in this regard, the learned trial court is directed to permit the plaintiff-petitioner to produce the witnesses, if three adjournments for recording the evidence of the plaintiff-petitioner have not been granted. If three adjournments have already been granted by the court and the petitioner has failed to produce the witnesses, then the Court is expected to act strictly in accordance with the provisions of law and in the light of the judgment of the Apex Court rendered in the case of M/s. Shiv Cotex (supra).

With the afore-stated observation, the writ petition stands disposed of. Consequent upon the disposal of writ petition, the stay application, filed therewith, does not survive and that also stands disposed of.