Babul Debnath vs Uddhab Datta And Ors

Heard Mr. T.D. Majumder, learned counsel appearing for the petitioner as well as Mr. R. Datta, learned counsel appearing for the respondents No.1 & 2 and Ms. R. Purakayastha, learned legal aid counsel appearing for the respondents No.3 to 8.

By means of this application filed under Article 227 of the Constitution of India, the petitioner has challenged the sustainability of the order dated 08.02.2019 delivered in Title Suit No.03 of 2016. By the said order, the Civil Judge, Senior Division, South Tripura, Belonia has refused to extend time to the petitioner to adduce DWs by filing the examination-in-chief by affidavit under Order 18 Rule 4 of the CPC. It has been observed in the said order dated 08.02.2019 that the defendant-petitioner had earlier taken three adjournments and that prayer was for a fourth adjournment for the same purpose. Accordingly, in terms of, as it appears, Order 17 Rule 1 of the CPC, the prayer for extension of time was rejected fixing the next date for argument.

Mr. T.D. Majumder, learned counsel appearing for the petitioner having referred to the application filed for extension of time has submitted that the wife of the defendant-petitioner was seriously ill and he could not leave her under anybody's care. In this regard, with the said application dated 04.02.2019 a Medical Advisory from a registered medical practitioner has also been enclosed. Mr. Majumder, learned counsel has submitted that under the exceptional circumstances as narrated above, the said prayer for extension of time was made. According to Mr. Majumder, learned counsel the prescription under Order 17 Rule 1 of the CPC is not mandatory but directory in nature [see Salem Advocate Bar Association, T.N. versus Union of India: (2005) 6 SCC 344].

Mr. Majumder, learned counsel has assured that if one occasion is provided for the said purpose, the defendant-petitioner would adduce the witness following the process of law and no further adjournment will be sought and even the trial court may be directed to not grant further adjournment on asking.

Mr. R. Datta, learned counsel appearing for the respondents No.1 & 2 has initially submitted that the ground as assigned cannot be accepted by the court as from a bare reading of the Medical Advisory it would appear that it was illness of his wife was insignificant, which might not require his presence at home. That apart, Mr. Datta, learned counsel has submitted that the attempt to seek adjournment is to paralyze the adjudicatory process and in this regard Mr. Datta, learned counsel has referred a decision of the apex court in Noor Mohammed vs Jetha Nand & Another reported in AIR 2013 SC 1217 where the apex court has observed that virtues of adjudication cannot be allowed to be paralyzed by adjournments and non-demonstration of due diligence to deal with the matter. It is, therefore, necessary that all who are involved in the justice dispensation system, which includes the Judges, the lawyers, the judicial officers who work in courts, the law officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy can be put to rest in the earliest. Shifting the blame is not the cure. Acceptance of responsibility and dealing with it like a captain in the frontier is the necessity of the time. It is worthy to state that diligence brings satisfaction. There has to be strong resolve in the mind to carry out the responsibility with devotion.

This court can not have any quarrel with the said observation that under the exceptional circumstances, as has been made out by the defendant-petitioner, the trial court would not have mechanically rejected the prayer of the petitioner. True it is that, for the repeated adjournments, the plaintiff has suffered.

Having regard to all those aspects of the matter, this court is of the view that the trial court shall afford one solitary opportunity to the defendant-petitioner to adduce DWs by filing the examination-in- chief by affidavit under Order 18 Rule 4 of the CPC and for cross-examination of those witnesses in the due course. The entire process shall be completed within a period of thirty days by the trial court from the date when the copy of this order will be available to the concerned court. To clarify, the court shall immediately post a date for production of the defendant's witnesses in accordance with law. On that day itself or some other day, the date for cross-examination, be fixed. But under no consideration, the entire period shall not cross thirty days as a whole.

Accordingly, this petition stands allowed, subject to payment of Rs.3000/- to the plaintiff through his counsel within fifteen days from today.