1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 758 of 2008 Mr. Mario Lobo and Anr. .. Petitioners Versus Mr.Joseph Sequeira and Anr. .. Respondents. Mr. V. P. Thali, Advocate for the petitioners. Mr. H. D. Naik, Advocate for the respondent No.1. CORAM :- SMT. R. S. DALVI, J. DATE : 28 th April, 2009 . ORAL ORDER : Rule. By consent heard forthwith. 2. The petitioners have challenged the order of Civil Judge, S.D., Mapusa dated 4.11.2008 dismissing the Special Civil Suit No.61/1999/C. The suit has been filed since 1999. The suit has been dismissed upon application of the plaintiff for adjournment of the suit pending evidence having been rejected. It has to be seen whether the dismissal is proper and whether the order of dismissal needs to be interfered with. What transpired in the Court during the pendency of 2 the suit is essentially to be appreciated. 3. The affidavit of examination-in-chief of P.W.1 has been tendered by the plaintiff on 18.3.2004 in the suit. Several letters have been marked as exhibits upon considering their admissibility on 15.4.2004. 4. Thereafter there have been a number of adjournments granted to the plaintiff as reflected from the rojnama since 27.4.2004. One application for secondary evidence sought to be led was also considered on certain dates of hearing. Several documents have been taken on record from time to time being on 10.7.2006 and 31.1.2007. 5. The suit has been adjourned for want of time of the Court also on 22.2.2007, 23.3.2007 and 2.4.2007. 6. The suit has been adjourned from time to time for cross-examination of the plaintiff since 30.4.2007. The plaintiff remained absent on 30.4.2007 and 30.6.2007. 7. The plaintiff sought adjournment on 4.10.2007 to file an amendment application. It is stated that the 3 application was filed within the course of that day. Thereafter the suit has been adjourned from time to time until the application was considered and dismissed on 30.8.2008. 8. On that date the suit was again fixed for cross- examination of P.W.1 on 30.9.2008. On 30.9.2008 the application for adjournment was filed by the plaintiff. Last and final opportunity was given to the plaintiff to lead further evidence. The suit before the Court was old suit of 1999 and three opportunities statutorily allowed to be granted to the plaintiff were exhausted since long prior thereto. The suit was adjourned to 4.11.2008. On 4.11.2008 again an application for adjournment was filed by the plaintiff whereupon the impugned order has been passed. 9. The impugned order shows that the application for adjournment was applied for on the ground that the order of amendment was sought to be challenged. It observes that availing a right/ challenging the order of the Court is not a ground for any adjournment more so in old matter of 1999. It observes that the plaintiff was given last opportunity earlier, but despite that the plaintiff had a very casual 4 approach. He remained absent. It shows that he was not interested in leading evidence. Hence, the application for adjournment came to be rejected. The suit stood dismissed for non-prosecution/ for not leading evidence. 10. The rojnama shows that after affidavit of examination-in-chief of the plaintiff was filed, from time to time on certain dates the documents were sought to be produced. Several documents have been marked exhibits. This is in compliance of the procedure under Order 18 Rule 4 of C.P.C. When the affidavit of examination-in-chief was received in evidence and the admissibility of the documents sought to be produced was considered to mark them exhibits. Thereafter the suit was adjourned for cross-examination of the plaintiff. So soon as that stage arrived, the plaintiff started to remain absent. That has been reflected in the rojnamas dated 30.4.2007, 30.6.2007 and 16.8.2007. 11. An application for amendment was sought to be filed on 4.10.2007. An adjournment on the ground of filing of amendment application was also sought. Several dates of hearing have been taken up in considering the amendment application, several adjournments are granted to both the 5 parties to file their respective affidavits and thereafter for the order. 12. Once the amendment application stood dismissed on 30.8.2008, the plaintiff's presence would be again required for cross-examination. The plaintiff again remained absent on 30.9.2008 which was the next date of hearing. That adjournment has been granted as a last and final opportunity given to the plaintiff. The rojnama records that that was to lead further evidence. The earlier rojnamas show that the suit was adjourned for cross-examination of the plaintiff. It matters little that the rojnamas show that the suit was adjourned for cross-examination on various dates and later for further evidence. If the plaintiff desired to adduce further evidence, it is for him to produce such evidence. If not, he has to present himself for cross-examination. In a bid to deviate from the main aspect the Advocate of the plaintiff (petitioner herein) sought to show the two expressions used in rojnamas of different dates. Nothing whatsoever turns on that fact. Whatever that be on the next date of hearing which was 4.11.2008, the plaintiff again remained absent and again sought adjournment through his Advocate. That has been understandably rightly rejected. 6 13. It is contended on behalf of the petitioners/plaintiffs that the impugned order has not been passed under Order 17, Rule 2 of the C.P.C., but has been passed under order 17 Rule 3 of C.P.C. instead. That contention is incorrect as the plaintiff had failed to appear on the last date of hearing i.e. on 4.11.2008. It is seen that when the suit was called out only the application for adjournment was filed. The presence of the plaintiff is not noted; the presence of the Advocate of the plaintiff was noted. The Advocate of the petitioner clarifies that the application for adjournment filed by the plaintiff was the application filed on behalf of the plaintiff by his Advocate. Hence, the plaintiff was not present and failed to appear on that date of hearing. Had the plaintiff remained present after the rejection of the application for adjournment, the plaintiff's cross-examination or even further evidence, if any, required could have continued. The Court could not continue that exercise because the plaintiff was not present. Only his Advocate was present with the application for adjournment. 14. Under such circumstances, it would have to be seen whether the Court should exercise power under Order 7 17, Rule 2 or under Order 17, Rule 3 of C.P.C. Both the Rule 2 and 3 of Order 17 run thus : Order 17, Rule 2. - Procedure if parties fail to appear on day fixed – Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Explanation - Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present. 3. - Court may proceed notwithstanding either party fails to produce evidence, etc. - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, - (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under rule 2. 8 Rule 2 relates to the situation when the parties fail to appear on the day fixed for hearing. 4.11.2008 was the date specifically fixed for hearing of the plaintiff's suit as the plaintiff was given last and final opportunity upon his application for adjournment filed by his Advocate on 30.9.2008. Hence, when the plaintiff failed to appear the Court was required to proceed to dispose of the suit in one of the modes directed under Order IX of the C.P.C. or make such order as the Court thought fit. In the present case, the Court can do little else than dismiss the suit upon rejecting the plaintiff's application for adjournment of the suit filed through his Advocate in his absence as the plaintiff failed to submit himself to cross-examination. 15. It is contended by the plaintiff's Advocate that the Court was enjoined to proceed with the suit even though the plaintiff failed to produce the evidence under Rule 3 of Order 17. Under the said rule when the plaintiff failed to produce his evidence, which was by submitting himself to cross- examination, or even leading any further evidence if any required, the Court notwithstanding that default of the plaintiff was to proceed to decide the suit. This the Court could have done under Rule 3(a) if the parties were present. 9 However, under Rule 3(b) if the parties were absent the Court was required to and could only be constrained to proceed under Rule 2 i.e. to pass an order as contemplated under Order 9 of C.P.C. or pass such other order as it deemed fit. 16. The argument of the petitioners' Advocate is that the Court should have considered the evidence already produced and at least on that evidence disposed of the suit on merits. That would have been correct if the plaintiff was present. In fact, if the plaintiff was present, in the present case, the plaintiff would have to submit himself to further cross-examination as that was the stage of the suit. At best the plaintiff could have produced further evidence. That also would require his presence in Court. What the petitioners' Advocate would require the Court to consider is the plaintiff's examination-in-chief and the plaintiffs' documents marked exhibits earlier. The plaintiffs' examination-in-chief cannot be considered. For that to be considered by the Court the plaintiff has to submit himself to cross-examination. Hence, that entire exercise of the plaintiff could not be considered by the Court on merits in view of the fact that when the cross- examination was to commence and when the suit was 10 specifically fixed for such evidence, the plaintiff continuously remained absent. In fact, the above rojnama shows the absence of the plaintiff on the aforesaid three dates of hearing even prior to his application for amendment of the plaint. After the dismissal of that application also the Court granted a month's time for the plaintiff's further evidence i.e. his cross-examination and for leading further evidence also if required. The plaintiff absented himself on the further dates of hearing. Only the plaintiff's Advocate submitted the application for adjournment in the absence of the plaintiff. The Court can do little else than dismiss the suit after several adjournments including the adjournment by giving last and final date of hearing. Since the plaintiff was not present, the Court can technically not proceed under Rule 3 of Order 17. Even if the Court proceeded under that Rule upon the material produced before the Court, since the affidavit of examination-in-chief of the plaintiff coupled with documentary evidence produced by the plaintiff could not be considered as correct and uncontroverted in the absence of the cross-examination of the plaintiff. It would, therefore, be purely academic to state that the Court should not have dismissed the suit upon the rejection of the application for adjournment for non-prosecution and not leading evidence, 11 but should have considered the merits. Those were the merits, that never were. Nothing on record could be considered for want of cross-examination. Since the plaintiff's cross-examination was not complete there was no question of the plaintiff obtaining any further evidence of any other witnesses also as contemplated under Rule 3. Hence, in the absence of the plaintiff, the Court was to consider the application under Order 17, Rule 3(b) i.e. to proceed under Order 17, Rule 2. The Court has done precisely that. The order does not suffer from any infirmity. It is time that Courts refrained from showing needless sympathy upon some imagined case of the party not at all brought forth by such party before the Court. Courts would always consider merits of the case of the parties before it. Nothing can be considered if not brought on record of the Courts. For bringing forth the merits, if any, of a party's case, the party must submit to work ethic and discipline, which unfortunately is the first and highest casualty. Such indisciplined approach has brought the entire justice system in disrepute. It leads to enormous waste of judicial time and causes long delays in disposal of cases. It is exactly to remedy such a malady that the procedural code, laying down the procedure for adjournments has been amended to give 12 the litigant no more than the statutorily permissible adjournments in his action or defence. Once these are exhausted, as in this case, Courts are not only allowed but enjoined not to permit excessive liberties to litigating parties who fail to perform their functions to the total disregard of the other party or the Court's time and in total refrain of the Court's powers to disallow such wanton misdemeanor. What the Court has disallowed by the order of dismissal is not only a correct exercise of authority, but desirable performance of judicial duty. 17. The writ petition is completely devoid of any merits. The writ petition is dismissed. Rule discharged. SMT. R. S. DALVI, J. SMA