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Judgment
The petitioner-defendant (hereinafter `the defendant'')
has challenged the order dated 30.5.2017 passed by the Civil
Judge, Kotputli, District Jaipur in Case No.65/2009, whereby it
rejected his application for reopening his evidence and recording
his statement.
The facts of the case are that the plaintiff-respondent
(hereinafter ''the plaintiff'') filed a suit for permanent injunction
against the defendant. On the summons being served upon the
defendant, he put in appearance and filed his written statement
on 29.6.2009. Issues were framed by the trial court on
23.10.2009. Plaintiff''s evidence was completed. Thereafter the
defendant''s evidence was commenced and it was closed on
23.3.2017 for the defendant''s failure to bring his witness for
cross-examination despite several opportunities. He then filed an
application to reopen his evidence and record his statement. That
application was dismissed by the trial court on 30.05.2017. Hence
this petition.
Heard counsel for the defendant and perused the
impugned order passed by the trial court.
A perusal of the order sheets of the trial court on
record evinces that on 28.5.2014, 20.2.2015, 24.11.2015,
23.5.2016, 10.8.2016, 14.9.2016, 29.9.2016, 21.11.2016,
28.11.2016, 16.1.2017, 27.2.2017, 21.3.2017 adjournments were
sought for cross-examination of witnesses of the defendant, but
witnesses were not produced for their cross-examination by the
defendant for one or the other reason. The Trial Court then had no
option but close defendant''s evidence. Application for reopening
has been dismissed for reason of no good ground being made out.
The Proviso to Order 17 Rule 1 CPC provides that t he court
may, if sufficient 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, but no such adjournment shall be granted
more than three times to a party during hearing of the suit.
Albeit the proviso to Order 17 Rule 1 CPC is only directory,
considering the failure of the defendant to lead evidence and
produce his witnesses for cross-examination despite over ten
opportunities the Trial Court rightly closed his evidence and then
dismissed the application for reopening of evidence in exercise of
its discretion on an objective consideration of the facts of the case.
The discretion of the court under Order 17 Rule 1 CPC cannot morph into a right of the defendant. From reasons recorded by the
trial court, it is evident that it granted over 10 opportunities to the
defendant to produce his witnesses for cross-examination. I
cannot in the circumstances find any perversity in the impugned
order to warrant interference under Article 227 of the Constitution
of India.
Counsel for the defendant has not been able to make
out a case of the impugned order suffering from any perversity or
misdirection in law. No litigant can be allowed to abuse the
procedure of the court, take it for granted and/ or create
hindrance in the trial of a case. The court has ample power to
conduct and regulate the trials before it in accordance with law.
The Hon''ble Supreme Court in the case of Shiv Cotex Vs. Tirgun
Auto Plast (P) Ltd. & Ors. [(2011) 9 SCC 678] has held that
adjournments in civil cases should be ordinarily limited to three/
four times. Exceptional circumstances have to be made out for
adjournment thereafter.
It is not for this court in the exercise of its power of
superintendence under Article 227 of the Constitution of India to
interfere with the discretion of the courts below exercised in the
course of trial.
The impugned order of the trial court is reasonable,
just and proper. I find no force in the petition. The same is
dismissed.