Anand S/O Shaktikumar Sancheti ... vs Ganesh Jethmal Verma
2016 Latest Caselaw 6876 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         : NAGPUR BENCH : NAGPUR.




                                                                 
                           WRIT PETITION NO. 5169 OF 2016

    Anand S/o Shaktikumar Sancheti 




                                                                
    Aged about 44 years, Occ. Business,
    R/o Bharat Nagar, Amravati Road, 
    Nagpur through Power of Attorney 
    Holder Shri Sanjay s/o Umarsi Dand
    Aged about 46 years Occ. Business, 




                                                  
    R/o Malkapur District Buldhana.                                               ... Petitioner

           // VERSUS //
                              
    Ganesh Jethmal Verma
                             
    Aged about 35 years, Occ. Agriculturist, 
    R/o Bhairav Chowk Shegaon Taluka 
    Shegaon District Buldhana.                                                   ... Respondent
      

    -------------------------------------------------------------------------------------------------
    Shri A. M. Sudame, Advocate for the petitioner
   



    Shri A. V. Bhide, Advocate for the respondent 
    -------------------------------------------------------------------------------------------------

                                                 CORAM :  PRASANNA B. VARALE, J.

                                                  DATE    : 2-12-2016.

    ORAL JUDGMENT


                     Rule.  Rule made returnable forthwith.  

2. Heard Shri Sudame, learned counsel for the petitioner

and Shri Bhide, learned counsel for the respondent.

3. By the present petition, the petitioner challenges the

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orders passed by learned Civil Judge Senior Division, Khamgaon dated

20-8-2016 rejecting the application seeking adjournment and dated

6-4-2016 thereby rejecting the application seeking appointment of the

Court Commissioner to record evidence of plaintiff.

4. The petitioner is the plaintiff who had instituted Special

Civil Suit No. 12/2013 for specific performance of contract and the

same is pending in the Court of Civil Judge Senior Division,

Khamgaon. It may not be necessary to refer to the contentions and

rival contentions of the parties. Suffice to say that in an earlier round,

the parties were even before this Court challenging some interim

orders and this Court by order dated 12-3-2014 in Appeal Against

Order No. 65/2013 preferred by the petitioner-plaintiff and this Court

disposed of the appeal with direction to the Trial Judge to expedite

the hearing of the suit and decide the suit within stipulated period i.e.

within period of one year from the date of appearance of the parties

before the Court. The suit was fixed before the Court below and an

application for adjournment was submitted at the instance of the

present petitioner-plaintiff. It was submitted in the application that

the petitioner-plaintiff attended the Court and he was in the Court

till 12 O'clock, he felt uneasy and he left the Court and proceeded

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towards Akola. It was submitted in the application that the petitioner-

plaintiff had undergone some surgery, as such, was not keeping good

health and on these grounds, the adjournment was sought for. The

application was opposed on the ground that no medical certificate is

annexed to the application. It was also submitted that as the matter

being time framed, the application be rejected. Learned Civil Judge

Senior Division observed that on earlier occasion also, the matter was

adjourned at the request of the petitioner-plaintiff and along with the

application, no medical certificate is annexed and further observed

that the plaintiff had filed affidavit of examination-in-chief on

12-2-2016 and sufficient time was granted to the plaintiff. Learned

Civil Judge Senior Division, Khamgaon further observed that the Court

till 2.00 p.m. repeatedly called the parties but the plaintiff did not

appear to face cross-examination and as sufficient opportunities were

granted to the petitioner-plaintiff, no further opportunity is needed to

be granted. The application was thus rejected.

5. Shri Sudame, learned counsel for the petitioner invited

my attention to the copy of the application seeking adjournment

placed on record at Annexure-VII and submitted that it was

specifically submitted in the application that the petitioner was

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present in the Court till 12 O'clock and suddenly the petitioner felt

uneasy in the Court itself and as the petitioner-plaintiff was having

chest pain and sweat, he immediately left the Court premises and

proceeded to Akola. Shri Sudame, learned counsel then invited my

attention to the document at Annexure-VI, certificate issued by the

private medical practitioner at Khamgaon dated 20-8-2016. Perusal of

the said certificate shows that the petitioner-plaintiff attended the said

private medical practitioner with complaint of chest pain on left side

and the petitioner-plaintiff was referred to Cardiologist for further

investigations and needful treatment. Thus it was the submission of

Shri Sudame, learned counsel for the petitioner that absence of the

petitioner-plaintiff in the Court after 12 O'clock was for such a reason

which was beyond his control and was an unintentional and bonafide

ground. He further submitted that the fact of sudden illness of

petitioner-plaintiff brought before the Court by submitting the

application seeking adjournment and the Court ought not to have

taken hyper-technical approach by rejecting the adjournment

application. He further submitted that the petitioner-plaintiff had

approached the medical practitioner at Khamgaon and then he was

advised by the medical practitioner to undergo further investigations

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through Cardiologist. Shri Sudame, learned counsel submitted that

the examination of the petitioner-plaintiff through medical

practitioner and receiving certificate certainly required some time and

it was not possible either for petitioner-plaintiff to immediately submit

the certificate to the counsel or the counsel, in turn, immediately

placing the certificate before the Court. Shri Sudame, learned counsel

then submitted that the fact remains that on the very day, the

petitioner-plaintiff was examined by the medical practitioner and

certificate was also issued by the medical practitioner disclosing the ill

health of the petitioner and opinion of the Doctor that petitioner-

plaintiff required further examination of the Cardiologist and the

investigations. Thus, learned counsel Shri Sudame prays for setting

aside the order passed by learned Civil Judge Senior Division,

Khamgaon rejecting the application for adjournment.

6. Shri Bhide, learned counsel for the respondent opposed

the prayer of the petitioner. It is submitted by the learned counsel

Shri Bhide that learned Civil Judge Senior Division committed no error

in rejecting the application for adjournment as this Court directed the

learned Court below to decide the matter within stipulated time

frame.

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7. Considering the rival submissions of the learned counsel

appearing for the parties, I am of the opinion that though this Court

directed the learned trial Court to decide the matter within stipulated

time frame, the learned Civil Judge Senior Division could not have

adopted such a hyper technical approach on the backdrop of the

peculiar facts. As stated above, the petitioner was present in the Court

till 12 O'clock and at 12 O'clock suddenly, he felt uneasy and left the

Court. There is also a certificate placed on record of the private

medical practitioner about the requirement of the examination of the

petitioner-plaintiff by Cardiologist and further investigations. Even

perusal of the order passed by the learned Civil Judge Senior Division

dated 20-8-2016 shows that the Court till 2.00 p.m. repeatedly called

the parties and the plaintiff did not appear to face cross-examination,

the application was rejected. The approach of the Court waiting only

till 2.00 p.m. and passing the order at 2.00 p.m. also show that the

learned Court below adopted a hyper-technical approach. On the

backdrop of these peculiar circumstance, learned Court below could

have certainly granted one opportunity to the petitioner-plaintiff. The

order passed by the learned Civil Judge Senior Division, Khamgaon

rejecting the application seeking adjournment dated 20-8-2016 thus is

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unsustainable. The order is thus quashed and set aside.

8. Insofar as the challenge to the order dated 6-4-2016

rejecting the application seeking appointment of Court Commissioner

to record evidence of plaintiff is concerned, perusal of the material

shows that the application was submitted on the ground that the

petitioner-plaintiff has engaged in diverse large scale business at

Nagpur and various places in India and as such, in the interest of

justice, the Court Commissioner be appointed to record his evidence

as he is unable to attend the Court. The ground raised in the

application referred to above itself shows that the petitioner-plaintiff

was before the Court with not such difficulty either physical or

otherwise causing inability for him to attend the Court but the

difficulty shown by the petitioner-plaintiff in the application was of his

engagement in the business. On the face of the ground raised by the

petitioner-plaintiff, it clearly shows that the petitioner-plaintiff was

trying to put up before the Court that he was a very busy person

engaged in his business activity and was unable to attend the Court

because of his business activities. The Court rightly considering the

application as well as the judgment relied on by the learned counsel

appearing for the defendant rejected the application. The learned

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Court committed no error in observing that unless strong case is made

out, the Court is not bound to use its discretion merely on flimsy

ground as mentioned in the application. The order of learned Civil

Judge Senior Division, Khamgaon dated 6-4-2016 rejecting the

application needs no interference at the hands of this Court. The

challenge in the petition in the said order thus fails. In the result, the

writ petition is partly allowed. The order dated 20-8-2016 is quashed

and set aside and the order dated 6-4-2016 is maintained.

JUDGE

wasnik