Sainath Amonkar vs Ravindra K. Amonkar

U.V. Bakre, J.—Heard learned Counsel for the respective parties.

Rule. Rule made returnable and by consent heard forthwith.

By this petition, the petitioners have taken exception to the orders dated 03/05/2014 and 07/05/2014 passed by the learned Civil Judge, Senior Division, Vasco Da Gama, Goa (Trial Judge, for short) whereby the adjournment was rejected; the defence evidence was closed and prayer for reopening the evidence and for leave to lead evidence in defence was rejected.

The respondents no. 1 and 2 (plaintiffs) have filed the said Regular Civil Suit no. 17 of 2013 praying therein for eviction of the petitioners and respondent no.3 (defendants) from the suit house and also for mesne profits and permanent injunction to restrain the defendants from interfering with the life of the plaintiffs as well as the house of the plaintiffs. It is the contention of the plaintiffs that the house belongs to them and the defendants have no right and that the defendants have been harassing them.

The defendants filed their written statement. Issues have been framed as per the rival contentions of the parties and the plaintiffs have completed their evidence. Even the defendants have partly completed their evidence and defendants no. 1 and 2 have examined themselves. On 21/04/2014, the date was given for filing affidavit-in-evidence of the third witness and accordingly the same was filed on that day. Date for cross-examination of DW 3 was fixed by the Trial Judge on 23/04/2014 on which date the application for adjournment was filed by the defendants alleging that the witness was unable to appear in the Court as he was out of station for his sister''s daughter''s wedding and would be back on 28/04/2014. As such, the matter was fixed on 28/04/2014. Again, on 28/04/2014, it was stated by the defendants that the witness would return after three days and as such the matter was fixed on 03/05/2014. However, on 03/05/2014 also the said witness was absent and adjournment was sought on the same ground that the witness was out of station for his sister''s daughter''s wedding. The plaintiffs objected to the adjournment and prayed for closure of the defence evidence. By impugned order dated 03/05/2014, this application for adjournment was dismissed by the Trial Judge, mainly on the ground that the defendants did not produce any material to corroborate the grounds for adjournment stated in the application. Immediately on 06/05/2014 the defendants filed application for reopening the evidence and for leave to lead defence evidence, alleging that the non-appearance of the witness was not deliberate. This application was heard on 07/05/2014 and was dismissed on the same day for the reasons stated therein.

Mr. Kamat, learned Counsel appearing on behalf of the defendants submits that on 28/04/2014 it was the second hearing and adjournments were sought for recording cross-examination of DW3 only thrice i.e. on 23/04/2014; 28/04/2014 and 03/05/2014. He further submitted that appropriate genuine reasons were given in the applications for adjournment. He relied upon the judgment of the High Court of Punjab and Haryana in the case of Gurvinder Singh Vs. Government of India and Others, He submitted that in the interest of justice, the impugned order which is harsh and prejudicial to the defendants should be set aside so that the defendants get an opportunity to lead their evidence and prove their defence.

On the other hand, Mr. Ramani, learned Counsel appearing on behalf of the plaintiffs submitted that the suit has been filed since the defendants have been harassing the plaintiffs in all manner possible. He submitted that the reasons mentioned for adjournments were not sufficient and adjournments were sought thrice on the same ground. He pointed out that the plaintiffs are the parents of the defendants no. 1 and 3, and thus are being harassed by their own children. He further submitted that considering the nature of the suit, the Trial Court rightly dismissed the last adjournment application and rightly closed the defence evidence.

I have perused the material on record and considered the submissions of the learned Counsel for the parties.

It is seen that the said Regular Civil Suit no. 17 of 2013 cannot be termed as an old suit, being instituted only in the last year. In any case, the plaintiffs had completed their evidence and the defendants had also examined the defendants no. 1 and 2 and filed the affidavit-in-evidence of third witness. On the dates fixed for cross-examination of DW3, i.e. on 23/04/2014; 28/04/2014 and 03/05/2014, unfortunately DW3 could not attend the Court. However appropriate applications for adjournment were filed. The ground for adjournment was that the witness had gone out of station for his sister''s daughter''s wedding. Return of the witness from the place where he had gone for wedding was not in the hands of the defendants. However the learned Trial Court, on the ground that the defendants did not produce any material to corroborate the grounds stated in the application, dismissed the said last application dated 03/05/2014. In my view, the said dismissal order is too harsh, since it has taken away the opportunity of the defendants to defend their case, by leading their evidence. In fact, the learned Trial Court could have given a next date by specifically warning that the same shall be the last opportunity to the defendants to complete the evidence of DW3 and could have awarded costs for the inconvenience caused to the plaintiffs. It is pertinent to note that immediately on 06/05/2014 the defendants had filed the application for reopening the defendants'' evidence and for leave to lead evidence by alleging that non-appearance of DW3 on 03/05/2014 was not deliberate and that they were not interested in delaying the matter. In spite of this, the said application was also dismissed. Merely because the plaintiffs are Senior Citizens and have filed the suit on the ground that the defendants were harassing them, it does not mean that considering the said nature of the case, the adjournment cannot be granted.

In the case of "Gurvinder Singh" (supra), the learned Single Judge of Punjab and Haryana High Court has held thus : "It is correct that proviso to Order 17 Rules 1 CPC lays down that not more than three adjournments shall be granted to a party for its evidence. However, the said provision being rule of procedure has to be held to be directory and not mandatory. This provision has to be applied with some flexibility and not with rigidity or inflexibility. Rules of procedure are handmaids of justice and are meant to advance the ends of justice and not to thwart or obstruct the same. Even the Hon''ble Supreme Court in paragraph 32 of the judgment in the case of Salem Advocate bar Association''s case (supra) observed that in the facts and circumstances of a given case, more than three adjournment can be granted for evidence of a party by imposing punitive cost. I am of the considered opinion that in the instant case, closure of evidence of plaintiff by court order by granting three opportunities only has proved to be very harsh for the plaintiff resulting in dismissal of his suit. It has resulted in miscarriage of justice and has caused grave injustice to the plaintiff. In my considered opinion, the ends of justice would be met if the plaintiff is granted two more opportunities for his evidence at own responsibility on payment of heavy costs."

Thus, the provision of Order 17 Rule 1 of C.P.C. laying down that not more than three adjournments shall be granted to a party for its evidence is simply a rule of procedure and, therefore, is not mandatory but directory. Considering that sufficient grounds for adjournment were stated by the defendants, the learned Trial Judge ought to have granted adjournment and should not have taken harsh decision of closing the defence evidence. Inconvenience caused to the plaintiffs could have been made good by awarding appropriate costs. In this regard, however, Mr. Kamat, learned Counsel for the petitioners submits that the petitioner no.1 is only a driver by profession earning about Rs. 6,000/- per month.

Considering all the aspects of the matter, I am of the view that impugned orders are arbitrary and against the principles of natural justice and hence liable to be quashed and set aside and the defendants should be permitted to complete the evidence of DW3 and also lead further defence evidence, if any, subject to costs to be awarded to the plaintiffs. Mr. Kamat, learned Counsel makes it clear that the defendants would be examining two more witnesses after completion of evidence of DW3.

The Petition is allowed.

(a) The impugned Orders dated 03/05/2014 and 07/05/2014 are quashed and set aside.

(b) The defendants shall be permitted to lead the evidence of DW3 and also further defence evidence, subject to defendants'' depositing costs of Rs. 1,000/- ( Rs. One Thousand Only) before the Trial Judge as condition precedent to be paid to the plaintiffs.

(c) It is made clear that the defendants shall not seek adjournment, unless there are genuine reasons.

(d) Rule is made absolute in the above terms.

Petition stands disposed of accordingly.