1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil First Appeal No.129/1988. (Radhey Shyam Dhoot Vs. State of Rajasthan & Others) DATE OF JUDGMENT : May 19, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. Shailendra Kala for the appellant. Mr. Ranjeet Joshi for the respondents. BY THE COURT : Instant first appeal is pending since 1988, in which, the appellant-plaintiff has challenged the judgment and decree dated 03.11.1988 passed by the District Judge, Merta, whereby, suit filed by the plaintiff-appellant was dismissed on the ground that inspite of granting several opportunities to the plaintiff he has failed to adduce evidence before the Court and false application for adjournment was filed. The learned trial Court while exercising power under Order 17 Rule 3 C.P.C. dismissed the suit solely on the ground that the appellant-plaintiff has failed to produce evidence in spite of granting ample opportunity to adduce evidence. 2 Although during the course of hearing none is present on behalf of the appellant, but, in the appeal, it is submitted by the appellant that suit against the respondent was filed before the District Judge, Merta City for setting aside the order of conversion of land dated 14.12.1982, execution of the lease- deed, possession of the land, declaration and permanent injunction pertaining to land situated in khasra No.568 in village Khawas Makrana (Tehsil Parbatsar), in the west side, measuring 2.5 bigha. In the suit, after filing of the written-statement, issues were framed and matter was placed for producing evidence by the plaintiff. Although several opportunities were granted to lead evidence even on cost also on 03.06.1988 and 25.08.1988 at the cost of Rs.100/- and Rs.150/- respectively, but, on the day when suit was dismissed i.e., on 03.11.1988, again, application was filed stating therein that father of the plaintiff, Sita Ram who was 85 years old became seriously ill, therefore, plaintiff left Merta City and went to Jaipur for treatment of his father. Further, it is also stated that power of attorney of the plaintiff, Ram Deo is also out of town and had gone to Bangalore for his business, therefore, it was prayed that time may be granted. On that day, counsel for the respondent opposed the prayer for adjournment and submitted that opportunity to lead evidence may be closed. The learned trial Court, upon objection raised by the respondent, while deciding the 3 application filed on behalf of the plaintiff, dismissed the suit itself as per Order 17 Rule 3, C.P.C. In this appeal, it is submitted by the appellant that the learned trial Court has committed an error while dismissing the suit filed by the appellant-plaintiff under Order 17 Rule 3, C.P.C., therefore, the judgment and decree dated 03.11.1988 is bad in law and on facts. Further, it is stated that the plaintiff was represented by his counsel before the trial Court and on 03.11.1988 an application duly supported by affidavit explaining the reason for absence was filed. In the application, it was specifically stated that due to illness of his old father who was 85 years old the plaintiff was not in a position to attend the Court; but, the learned trial Court has not considered this aspect of the matter properly and turned down the prayer for adjournment on the ground that plaintiff has gone in adoption to Sugan Chand and, in the application he has stated that Sita Ram Dhoot is his father and he is ill, therefore, adjournment may be granted. The learned trial Court ought to have granted adjournment for the purpose of leading evidence because valid reason was incorporated by the appellant in his application for adjournment and opportunity was required to be granted in the circumstances which were incorporated in the application. It is also submitted that no reply to the application was filed by the respondents, therefore, the judgment/decree passed by the learned trial Court is erroneous and deserves to be quashed. 4 Learned counsel for the appellant further argued that if such a judgment passed by the learned trial Court merely on the ground that the appellant took adjournment, then, certainly it would result in miscarriage of justice. Learned trial Court was required to take a lenient view because the reasons mentioned in the application were beyond the control of appellant-plaintiff. It is also argued that merely on the basis of technicalities, the trial Court cannot be allowed to deny the opportunity to get relief in accordance with law. Upon perusal of the judgment and decree under challenge it will reveal that due to judgment impugned the appellant has suffered irreparable injury because the adjournment can be granted while imposing heavy cost but the learned trial Court committed error while rejecting the application filed by the plaintiff for adjournment and further committed error of law while dismissing the suit of the plaintiff under Order 17 Rule 3, C.P.C. In support of his contention, learned counsel for the appellant invited attention of the Court towards the judgment reported in 1999 (Suppl.) CCC 55 (Raj.), Smt. Badami Vs. Bhanwar Lal, in which, co-ordinate Bench of this Court while deciding the civil revision, in identical situation, the order passed by the trial Court was set aside. The said judgment is based upon the judgment of the Punjab & Haryana High Court, reported in AIR 1969 P & H 197, Balwant Singh Bhagwan Singh & Another Vs. Firm Ram Singh Baldev Kishan, therefore, the 5 judgment and decree impugned in this appeal may be set aside and the matter may be remitted to the trial Court for complete trial and adjudication on merit. On the other hand, learned counsel for the respondents vehemently argued that the judgment and decree impugned in this appeal does not require any interference in view of the fact that ample opportunity was granted to the appellant-plaintiff to lead evidence. In all, six opportunities were granted including opportunity on cost; but, for one or the other reason, the plaintiff took time to lead evidence, therefore, there was no option left with the trial Court except to proceed and decide the matter taking recourse to the power conferred under Order 17 Rule 3, C.P.C. Further, it is argued by learned counsel for the respondent that the reasons mentioned in the application for granting adjournment were also not cogent and were far from truth, therefore, the learned trial Court rejected the application filed by the plaintiff for granting adjournment and further dismissed the suit in the absence of evidence. It is prayed by learned counsel for the respondent that this appeal may be dismissed. I have considered the rival submissions made by both the parties. 6 In this case, it is obvious from the facts that suit was filed in the year 1983 and issues were framed by the trial Court on 30.04.1987 but, at the time of framing issues by the trial Court, list of witnesses was not produced by the plaintiff. For the first time, after six months from the date of framing issues, list of witnesses was furnished on 15.10.1987. The application for furnishing list of witnesses was accepted on 06.02.1988. First of all, reply to the suit was filed by the Government on 01.04.1985. On 19.07.1985, on behalf of respondent No.4, time was sought for submitting certain documents. Thereafter, on various dates, the case was listed before the trial Court and even after granting eleven opportunities to respondent No.4, no document was produced by respondent No.4. Thereafter, on 30.04.1987 finally the issues were framed by the trial Court; meaning thereby, respondent No.4 was granted 11 adjournments without any cost right from 01.04.1985 to 30.04.1987; but, for adducing the evidence by the plaintiff- appellant, only five adjournments were granted and out of five adjournments, two adjournments were granted on cost; meaning thereby, the learned trial Court has not applied its mind and so also it has not perused the earlier order-sheets, in which, respondent No.4 himself took time to produce documents and case was adjourned time and again upon his request which cannot be attributed to the plaintiff-appellant. 7 The learned trial court has dismissed the suit while following the provisions of Order 17 Rule 3 CPC. Rule 3 of Order XVII of the Code of Civil Procedure provides that: “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 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 nay of them is, absent, proceed under rule 2.” Upon perusal of Rule 3, it is revealed that it is not mandatory in nature, which gives discretion to the Court to pass order after taking into consideration entire facts and circumstances of a particular case. The purpose of legislature for insertion of this provision is not to grant unnecessary adjournments or delay the trial; but, at the same time, it is duty of the Civil Court that before passing any order while following Order 17 Rule 3 CPC it should apply its mind and peruse the entire facts and circumstances and reasons for granting adjournments. In the case on hand, after granting three adjournments, cost was imposed on further two occasions. However, respondent No.4 himself took ten adjournments for filing documents which were ultimately not filed before the trial Court and thereafter issues were framed. Meaning thereby, upon perusal of all the order-sheets of the case, delay in the trial cannot be attributed to the plaintiff-appellant only. 8 Therefore, the learned trial Court ought to have considered this aspect of the matter, which has not been considered. In my opinion, therefore, the judgment and decree under challenge is not sustainable in the eye of law. I am in full agreement with the adjudication made by Punjab and Haryana High Court in the case of Balwant Singh Bhagwan Singh and Anr. Vs. Firm Ram Singh Baldev Kishan which has been followed by the Co-ordinate Bench of this Court in the judgment reported in 1999 (Suppl.) CCC 55 (Raj.). The relevant para of the said judgment reads as follows:- “Promptitude and dispatch in the dispensation of justice is desirable thing but not at the cost of justice. All rules of procedure are nothing but handmaids of justice. They cannot be construed in a manner which would hamper justice. As a general rule, evidence should never be shut out. The fullest opportunity should always be given to the parties to give evidence if the justice of the case requires it. It is immaterial if the original omission to give evidence or to deposit process fee, it should be allowed if that can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs.” In this view of the matter, in my opinion, the learned trial court has wrongly rejected the application filed by the petitioner on 03.11.1988 for granting adjournment, therefore, the judgment and decree passed by the learned trial court deserves to be set aside. Consequently, this appeal is allowed. The judgment and 9 decree passed by the learned trial court while taking recourse to Order 17 Rule 3 CPC is quashed and set aside and application filed by the plaintiff-appellant for adjournment before the trial court on 03.11.1988 in Civil Suit No.40/83 is ordered to be allowed on cost of Rs.2,000/- which is payable to the respondents. The case is hereby remitted to the District Judge, Merta City to proceed with the trial. The matter shall be decided within a period of six months from the date of receipt of certified copy of the judgment. Office shall sent back record of the case to the trial court forthwith. (Gopal Krishan Vyas) J. Ojha, a.