C‘f/l/aal, IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (C) NO528$’OF 2006 Fedrick Donald Enis, S/o E. Enis, aged about 67 years, Resident of l.T.i., Koni, Bilaspur Tahsii & Distric Bilaspur (Chhattisgarh) Vibhakar Singh, S/o Martan‘ Singh , aged, about 39 years, Nileshv Dutt Bhatt, S/o Suresh ,Dutt Bhatt, aged about 39 years,- Yashoda Devi, W/o Ramnath > aged about 62 years, Respondents No. 5 to 7 a”. residents. of Gandhi ’ Nagar, ilaspur Tahsil & District 8:!aspur (Chhattisgarh) Kaushilya Bai, W/o Narayan Soni, Gulabchand, S/o Narayan Soni,;aged about 5O years, , t d ,E PETITIONER i Smt. Vibha Singh Thakur DEFENDANTS W/o Ajay Singh Thakur, aged about 36 years, Rfo Nira!a Nagar, Bilaspur, Tahsil & District Bilaspur (Chhattisgarh) V E R S U S RESPONDENTS {E mam] %.‘oc Sukhdem S/o Neelkanth PLAINTIFFS Satnami, aged about 62 years T. S. R. Naidu, S/o T. D. R. Naidu, aged about 67 years, Langdu, S/o Bhulai Satnami aged about 47 years, Respondents No. 1 to 3 all residents of Gandhi Nagar, Bilaspur Tahsil & District . Bilaspur (Chhattisgarh) 410. Subhash Chandra, S/o Narayan Soni, aged about 62 years, /11. Prakash Chandra, S/o Narayan Soni, aged about 55 years, Gyanchand, S/o Narayan Soni, aged about 53 years, Respondents No. 8 to 12 all Rlo Main Road, Sadar Bazar Mungeli, Tahsi! Mungeli, Dist. Bilaspur (Chhattisgarh) ‘ 13} Taan Singhn (Dead), S/oLal Singh aged about 85 years, R/o Daupara, Mungeli,Tahsil Mungeli, Dist. Bilaspur (CG) 14. State of Chhattisgarh through 'V Collector, District Bilaspur (CG) WRIT PETITION UNDER ARTICLE 22? OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORARI, MANDAMUS, _PROHIBITION AND OTHER SUITABLE WRITNVRITS, DIRECTION/DIRECTIONS, ORDER IORDERS: HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petitkm No.528512006 3mt.Vibha Singh Thakur Vs. Sukhdev (dead) and others Appearance: Shri Manindra Shrivastava, Sr. Advocate with Shn’ Anand Velma, for the petitioner. Shn’ Anand Kumar Gupta, counsel for respondents no.2,3,4, 6, 7 85 8. ' Shn’ Malay Kumar Bhadun', counsel for respondent no.5, None for other respondents. ORDER (02.3.2007) Sum! Kumar Sinha J (1) The pe1itioner, who is plaintiff before the trial Court, has Challenged the legality, validity and propriety of the order dated / 18,8.2006 passed in Civil Suit’No.57-A/ 2005 by the II Civil Judge, Class—II, Bilaspur. By the aforesaid. order, the leaned uial Cour} llas dismissed an application iiled on behalf of the petitioner] plaintid‘ under Order XVII Rule 1 of the Code of Civil Procedure seeking adjournment, when the matter was fixed for plaintid‘s’ evidence. (2) The brief factsJ necessary for disposal of this petition, are that the plaintiff has filed the aforesaid civil suit for declaration of her title, permanent injunction and also for possession against as many as 14 defendants. This suit was fixed for plaintiffs evidence on 18.8.200é. On the said date, counsel for die plaintid‘ filed an application under Order XVII Rule 1' C.P.C,, pleading that as the @ plaintiii‘ is working as a Pmfassor in C.M.D, Ccllege, Bilaspur and she could not get have for the said date, hence neither the plaintiff nor her witnesses are present 1'11 the Court, therefore, in all fairness, one more opportunity may be aifoxded to the plaintiff to adduce evidence in this case. This application was vehemently opposed by the counsel for the defendants. (3) Learned trial Court, after perusal of the record, dismissed the afoxesaid application on the ground that on earlier three occasions also’when the matter was hxed for evidence i.e., on 17.2.2006, 083.2006 and 25.3.2006, the plaintiif had already taken adjoumments, therefore, this 4th adjournment on 18.8.2006 wo‘hld not be possible in View of the amended provisione of Older XVII Rule l C.P.C., which permits only 3 adjoumments in such situations. While rejecting the said application, apart from mfening to the pmvisions of Order XVII Rule 1 C.P.C., the tn'al Court has also said that the’ aforesaid application, nled by the " plaintiii‘, does not appear to he proper and bonaiide and in View of the aforesaid pmvisions, the same cannot be allowed. (4) Learned counsel for the petitioner argues that the pmvisions of Order XVII Rule 1 C.P.C., as amended by the recent Act are not mandatoxy, as they are directly, and the trial Couxt erred in law in passing an onier of refusal of 4th adjournment to the plaintiif only on the gmunds of provisions of Order XVII Rule l. His submission is that the trial Court would have independently applied its mind in the prevailing facts and circumstances of this case and then /enly an cider in this regard would have been passed. He submits that it is always expedient in the interest of justice to hnally adjudicate any mattsr subjudice bafore. a Court and not to take recourse to the technicaliu‘es of law, which have been brought inta force with a particular legislative mtent. He. refers to the decision rendered in the matter of Salem Aduacate Bar Association, T.N. —Vs- Union of India (2005) s sec pg. 344 (for short Salem’s case) . (5) On the contrauy, learned counsel for the respondents support the order passed by the trial Court. Their submission is that the plaintjii' is a habitual defaulter, she never intends to come to the Court and she has already taken 3 adjoumments and the trial court has rightly closed the rights of the plaintin‘ to adduce the evidence by rejecting her application tiled under Order XV'H Rule 1 C.P.C. (5) I have heard learned counsel for the parties at length and have also perused the records of the Writ pen'tion. (7) Order XVI! of the Code of Civil Procedure deals with - adjournments. Rule 1 provides that the Court may grant time and adjourn hearing. Sub-Rule (1) of Rule 1’ further provides that the Court may, if suificient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing, A proviso has been added to this sub—rule which says that no such adjournment shall be granted more than 3 times to a party during hearing of the suits. Further, Sub-rule (2) of order XVII provides for costs of adjournment, it has been provided that in every such case the Court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by J1- thc adjournment or such higher costs as the Court deems iit‘. Further proviso has also been added 1'11 sub-rule (2)in form of certain clauses guiding the matter of adjoumment etc. The above provisions confm'n the amendment,brought by Amendment Act 46 of 1999 eifective from 01.07.2002. (8) In Salem’s case vide Pam 31, while considering fhe amended provisions of Older XVII Rule 1(1), the Apex Court observed that in some extreme cases, it may become necessaxy to grant adjournment despite the fact that 3 adjournments have already been granted. 'It quoted many examples and further said that ultimately, it would depend upon the facts and circumstances of each case on the basis whereof the Court would decide to grant or refuse adjournments. The provision for costs and higher costs has been made because of the prach'ce having been developed to award only nominal costs even when adjouinment on payment of costs is granted. Ordinan'ly,’ Where the costs or higher costs are awarded, the same should be realistic, and as far as possible actual costs that had to be incurred by the other party shaltbe awarded where the adjournment is found to be avoidable, but is being granted on account of either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save the proviso to Order 17 Rule 1(1) from the vice of Article 14 of the Constitution, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases noted above. The Apex Court further stated that the limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which am beyond the contml of a paxty. Even in cases which may not suictly come within the category of circumstances beyond the. control of a party, the Court by msorting to the provisions of higher costs which can also include punitive costs in the discretion of the Court, adjournment beyond three can be. granted having Iegard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. The Apex Court, however, adds that grant of any adjournment, let alone the first, second or third adjournment, is not a right of a party. The grant of adjournment by a Court has to be on a party showing special and extraonlinary circumstances. It cannot be in routine. The Supreme Court cautioned that while considering the prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict the grant of adjoumments, (9) A perusal of the provisions of Order XVII Rule 1(1) C.P.C., as amended by Act 46 of 1999 as well as the observations recorded by the Apex Court in the Salem’s case, what makes it clear that the provisions made in sub rule (1) of Rule 1 of Order XVII are not mandatory so as to deprive the jurisdiction of a Court to grant further adjournments for more than three. What the law on the point is that even the adjournment, may be first, second; or third, should not be granted either as a matter of right of a party or as a matter of routine and for the purpose of grant of adjournment, particularly, beyond 3 adjournments, special and extraordinary circumstances are to be set forth by a party praying therefor so that, the legislative intent to restrict the grant of adjournment Vmay be fulfilled. In a givencasqon the grounds raised by a party, the m i @ Court has to apply its mind and then it should give a conclusion as to Whether the adjoummsnt should be granted or not. (10) In the. casc on hand, a pEmsal of the impugned order would show that the Court below has not commented on the ground of adjournment raised by the plaintiff. The plaintih‘ had approached the Court by taking special gmund that as she is working as a Professor in the C.M.D, College, Biiaspur and she could not get leave for the day, on which date the matter was fixed, the plaintiil‘ or her witnesses are not pmsent, and therefore, adjoumment was sought by her. The trial Court has not commented on the ground setforth by the plaintig and, in fact, without applying the mind on the said grounds raised by the plaintitl‘, wholly depending on the provisions of Order XVII Rule l. C.P.C., the trial Court has passed the impugned order and has simply said that since the plaintiff has already taken adjournments on earlier three occasions, therefore, she would not be entitled for 4th adjournment and the rights of the plaintiE to adduce evidence are required to he closed. The trial Court has not at all dealt with the aspect as to Whether the ground set forth by the plaintih‘ suictly comes Within the category of a circumstance beyond the control of a party or not, nor it has dealt with another aspect that whether the Iefusal to grant adjournment may result into injustice to the parties. It has simply passed the order depending on the provisions of Onder XVII Rule 1(1) CPC. In the opinion of this court, it was a case in which the plaintiif has sedbrth a cimumstance which was certainly beyond her control and for that she was entitled to grant of one more adjournment in the particular facts and circumstances of ' 4 7 » this case. Therefora, the impugned order passed by the tn'al Ceurt is not in accordance with law and the same requires to be set asid€ by this Court. (11) With an intenh'on to give complet6 oppmtunity t0 both the parties to produce. their evidence, I deem it pmper to aiford a last K, opportunity to the plaintiiilm peculiar facts and circumstances of this case,by imposing‘certain conditions. Accordingly, the petition is allowed and the impugned ozder is set aside on the following conditions. (i) The petitioner/plainu'if shall produce her all witnesses/evidence on her own risk on a date to be nxed by the trial Court which shall not be far than 1 V2 months from the first date falling on which the case is already fixed by the said Court. (ii) If the evidence of the plaintih’s side is not completed on the said date, the matter shall be adjourned to the next subsequent’dax and ultimately it has to be . completed by adopting the procedure of day to day hearing. (iii) The above order shall further subject to the payment of cost of Rs.2000[— (Rupees Two thousand) by the plaintiii' to the other side which shall be paid] deposited prior to the commencement of her evidence. (12) This writ petition stands allowed with the aforesaid directions, Sd/- Sunil Kumar Sinha Judge t