V.R. Pandya vs Taraben Hansraj Amin and Another

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If we refer to O. 17, R. 1 of the Civil P. C. the position becomes crystal clear. The law requires that ordinary the ease should be proceeded

with on the date fixed. Clause (d) of the proviso appended to sub-rule (2) of R, 1 of O. 17, however, lays down that if the pleader of the party is ill

or is unable to conduct the case for any reason other than his being engaged in another court, the court shall not grant the adjournment. So, under

that clause, the learned Judge was within his right in not granting an adjournment, but there is a further provision in the clause (d) itself, which says

that the court should examine whether the party applying for adjournment can possibly engage another pleader in time, if his advocate is ill or is

unable to conduct the case for any reason other than the advocate''s being busy in another court (The advocate''s being busy in another court is

already declared to be no ground for adjournment vide clause (c) just there). To ask a litigant in our country to engage another advocate there and

then is tantamount to refusal to look to the obvious.

In the facts and circumstances of the case, the learned Judge should have point-blank told the defendants that the case would be taken up on the

following day and that the defendants should be ready with another advocate. A day''s time would be sufficient for a party to engage another

advocate and be ready for the further conduct of the suit. So, in my view, when the Judge is inclined to act under clause (d) and when the party

applies for time is ready to engage another advocate, at least a day''s time should be given to the litigant, so that the cause of justice does not

suffer. In the case on hand, the learned Judge himself was not in a position to take up the matter that very day, as it appears from his having dealt

with it on the following day, despite his having refused adjournment. I fail to understand why the learned Judge adopted a queer course of refusing

a short adjournment to enable the defendants to engage another advocate, when he himself was not in a position to take up the suit on that day.

Had he been in a position to take up the suit that very day, he would not have deferred it to the following day when the suit was to be proceeded

with ex parte. It is in these circumstances that I say that the learned Judge has committed procedural irregularity, causing miscarriage of justice.

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Revision allowed