Kesari Chand Goel vs Santosh Kumar Agarwal And 6 Ors
2022 Latest Caselaw 3688 Gua

                                                                  Page No.# 1/11

GAHC010317312019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : CRP(IO)/421/2019

         KESARI CHAND GOEL
         S/O- LATE RAMAWATAR AGARWAL, R/O- B-01 MAHESH APARTMENT,
         VASUNDHARA ENCLAVE, DELHI- 96, CLINIC AT 2/56-57, MAIN BUS STOP,
         KHICHARIPUR, DELHI- 91



         VERSUS

         SANTOSH KUMAR AGARWAL AND 6 ORS
         S/O- LATE RAMAWATAR AGARWAL, R/O- TARA CHAND JALAN ROAD,
         TINSUKIA TOWN, P.O AND P.S- TINSUKIA, DIST- TINSUKIA, ASSAM ALSO
         R/O- CUTLACHERA TEA ESTATE, KATLICHERA, DIST- HAILAKANDI,
         ASSAM

         2:DINESH KUMAR AGARWAL
          S/O- LATE RAMAWATAR AGARWAL
          R/O- TARA CHAND JALAN ROAD
         TINSUKIA TOWN
          P.O AND P.S- TINSUKIA
          DIST- TINSUKIA
         ASSAM ALSO R/O- CUTLACHERA TEA ESTATE
          KATLICHERA
          DIST- HAILAKANDI
         ASSAM

         3:RAJENDRA KUMAR AGARWAL
          S/O- LATE RAMAWATAR AGARWAL
          R/O- TARA CHAND JALAN ROAD
         TINSUKIA TOWN
          P.O AND P.S- TINSUKIA
          DIST- TINSUKIA
         ASSAM ALSO R/O- CUTLACHERA TEA ESTATE
          KATLICHERA
                                                     Page No.# 2/11

             DIST- HAILAKANDI
             ASSAM

            4:URMILA DEVI AGARWAL
            W/O- LATE TRILOK CHAND AGARWAL
             R/O- TARA CHAND JALAN ROAD
            TINSUKIA TOWN
             P.O AND P.S- TINSUKIA
             DIST- TINSUKIA
            ASSAM ALSO R/O- CUTLACHERA TEA ESTATE
             KATLICHERA
             DIST- HAILAKANDI
            ASSAM

            5:SAMIR AGARWAL
             S/O- LATE TRILOK CHNAD AGARWAL
             R/O- TARA CHAND JALAN ROAD
            TINSUKIA TOWN
             P.O AND P.S- TINSUKIA
             DIST- TINSUKIA
            ASSAM ALSO R/O- CUTLACHERA TEA ESTATE
             KATLICHERA
             DIST- HAILAKANDI
            ASSAM

            6:SUMIT KUMAR AGARWAL
             S/O- LATE TRILOK CHNAD AGARWAL
             R/O- TARA CHAND JALAN ROAD
            TINSUKIA TOWN
             P.O AND P.S- TINSUKIA
             DIST- TINSUKIA
            ASSAM ALSO R/O- CUTLACHERA TEA ESTATE
             KATLICHERA
             DIST- HAILAKANDI
            ASSAM

            7:SWATI AGARWAL
             D/O- TRILOK CHAND AGARWAL
            W/O- SRI SUNIL AGARWAL
             R/O- GELLAPUKHURI ROAD
            TINSUKIA
             P.O
             P.S AND DIST- TINSUKIA
            ASSA

Advocate for the Petitioner   : MR D MAZUMDER

Advocate for the Respondent : MR. B. DUTTA
                                                                           Page No.# 3/11




                                  BEFORE
                    HONOURABLE MRS. JUSTICE MARLI VANKUNG

                                      JUDGMENT

Date : 21-09-2022

Heard Mr. S.Biswas, learned counsel for the petitioner along with Mr. S.Deka,

learned Sr. Counsel for the opposite party.

2] This is a revision petition filed against the impugned Order dated 30.04.2019

passed in Title Suit No.16/2017 by the Civil Judge, Hailakandi, in which the cross

examination of Pw-1 was expunged and against the order dated 31.08.2019 in Misc.

Cases No.65/2019 wherein the prayer for allowing the petitioner/defendant to cross-

examine the Pw-1 witness was rejected.

3] The case of the petitioner is that the respondents/plaintiffs had filed a suit

being T.S. No.16/2017 before the learned Court of Civil Judge, Hailakandi, for a decree

declaring that the petitioner/defendant is not entitled to claim and/or demand any

interest and/or right, title, interest and authority over the Schedule A and/or other

property, owned by Sri Ramawatar Agarwal (since deceased) as mentioned in the Title

Suit No. 16/2017. The petitioner/defendant filed his written statement denying all the

averments made in the plaint. The case was proceeded with and on 30.04.2019 the

case was fixed for cross examination of the Pw-1. However, on that day, the engaged Page No.# 4/11

counsel appearing on behalf of the petitioner i.e. Mr. Nurul Huda who is aged about 75

years was seriously ill and under treatment in Mumbai and had also failed to appear

on the other dates i.e. on 18.12.2018, 11.03.2019 and 08.04.2019. The

petitioner/defendant was residing in Delhi where he was having his clinic and was

unaware about these developments. As a result in absence of any steps being taken

on behalf of the petitioner/defendant, the cross-examination of the Pw-1 was

expunged vide the impugned order dated 30.04.2019, holding that the defendant side

had failed to cross-examine the Pw's on 18.12.2018, 11.03.2019 and on 08.04.2019

and that the defendant had also failed to pay the cost in terms of the order dated

11.03.2019 and 08.04.2019. Thereafter on 28.06.2019 a petition under section 151 of

the Code of Civil Procedure, 1908 was filed on behalf of the petitioner/defendant with

a prayer to allow the petitioner/defendant to cross examine the Pw-1 which was

registered as Misc. Case No.65/2019. The petitioner/defendant also paid the cost of

Rs.3000/- (Rupees three thousand only) through his newly engaged counsel on

28.06.2019. The learned court of Civil Judge, Hailakandi, vide the impugned order

dated 31.08.2019 dismissed the Misc. Case No.65/2019 holding that the court has no

power to do what is prohibited by law or the court by purported exercise of its

inherent power. Hence, the instant Revision Petition.

4] Mr. S. Biswas, learned counsel for the petitioner submits that the impugned

orders dated 30.04.2019 and 31.08.2019 is liable to be set aside since the reason

why the counsel for the defendant/appellant was absent on the dates fixed for cross Page No.# 5/11

examination of the plaintiff witness has been clearly explained. That the engaged

counsel aged about 75 years was under treatment in Mumbai during those period i.e.

on 18.12.2018, 11.03.2019 and 08.04.2019, while the appellant/defendant was a

Doctor residing in Delhi and was not aware of the said developments. That in the

order dated 31.08.2019, the learned Trial Court has clearly mentioned that the fees

imposed amounting to Rs.3,000/- has been duly paid through the new counsel

engaged by the petitioner/defendant. Inspite the above circumstances which was

beyond the control of the petitioner/defendant, the learned Trial Court had failed to

consider the circumstances and passed the impugned order dated 31.08.2019,

wherein, it was not due to any deliberate fault committed by the petitioner/defendant.

The learned counsel further submits that great in justice would be done to the

petitioner/defendant, if he is not given a chance to cross-examine the PW-1 since this

case is regarding his right to claim 1/6th share in the property of Late Ramawatar,

which he, being one of the legal heirs, is entitled to get.

5] The learned counsel for the petitioner has placed reliance on the decision of the

Apex Court in the case of Salem Advocate Bar Association, T.N. -Vs- Union of

India reported in (2005) 6 SCC 344). He further submits that technicality should

not come in the way of rendering justice and that he has paid the costs in terms of

Order 17 (2) CPC. That great injustice will be done if he is not given the chance to

cross-examine Pw-1 who is one of the vital witness in the suit.

Page No.# 6/11

6] Mr. S. Deka, learned counsel for the opposite parties on the other hand submits

that the points to be seen by this Court while submitting the application under Article

227 of the Constitution of India are whether the impugned orders are perverse and

not proper and whether the order has been passed within the para meters of law. On

reading of the impugned orders dated 30.04.2019 and 31.08.2019, the

petitioner/defendant has clearly failed to appear 3 (three) times for cross-examination

of the Pw-1 on the fixed/given and the learned Lower Trial Court correctly passed the

impugned orders as laid down under Order 7 Rule 1 CPC and thus there was no error

apparent on face of record or perversity in the findings of the learned lower court.

7] The Learned Counsel has relied on the decision of the Apex court in Garment

Craft vs. Prakash Chand Goel reported in (2022) 4 SCC 181 and the decision of

this Court in M/S. Mango Ice Cream Co. Shri Prafulla Kumar Ghosh

-Vs- Dena Bank. Panbazar, Guwahati reported in (1992) 1 GLR 143.

8] The learned counsel further submits that petitioner/defendant failed to pay

costs imposed upon him on the orders dated 11.03.2019 and 08.04.2019, thus, if the

costs levied for seeking adjournment to cross examine a witness are not paid, the

appropriate course is to close the cross examination of the witness. The learned Page No.# 7/11

Counsel relied on the decisions in Manohar Singh -Vs- D.S. Sharma & Anr.

reported in (2010) 1 SCC 53 and Anurupa Roy (Rupa) & Ors. -Vs- Ajit Lal

Kar reported in 2017 (5) GLT 506.

9] The learned Counsel also submits that there was no medical documents

produced to prove that the learned counsel for the petitioner/defendant was sick and

was out of station for treatment for which he could not cross-examine PW-1, his claim

is not supported by any medical documents which should be done, by filing an

affidavit as per the Gauhati High Court Rules (1992), no such affidavit is found to

have been filed.

10] The learned Counsel also submits that the cross examination can be allowed

after being absent on 3 (three) occasions only on exceptional cases and that no

exceptional case under Order 17 rule 2 has been made out in this case. It may also be

noted that the cost imposed by the Trial Court was filed only after the closure of

Plaintiff evidence.

11] Mr. S. Biswas, learned counsel for the petitioner, in reply to the submissions

made by the learned Counsel for the opposite party submits that in the order dated

30.04.2019 the learned Lower Court has not mentioned anything about non

submission of any medical report/documents and the petition of the

petitioner/defendant was not rejected on the grounds of no documents submitted, Page No.# 8/11

thus, it would not be proper at this stage to insist on production of such medical

reports. He also mentions that the Apex Court in Salem Advocate Bar Association

(supra), allowed the cross examination after three adjournments even on the

absence of circumstances beyond the control of a party, holding that the court may

resort to imposing higher cost as punitive cost having regard to the injustice that may

result in refusal to allow the cross examination.

12] I have heard the submissions made by both the parties, and perused the

documents on record. It is seen that the learned tribunal had passed its impugned

order dated 30.04.2019 due to the absence of the counsel for the

petitioner/defendant on 18.12.2018, 11.03.2019 and 08.04.2019 and for non payment

of costs imposed as per the provisions of Order 17 of CPC and order 18(2) CPC.

However the reason for the absence of the petitioner/defendant was explained and

reflected by the learned Court below in the impugned order dated 31.08.2019. The

reason for the sake of repetition is 'that the learned counsel (aged 75 years) for the

petitioner/defendant was sick and out of station for treatment and the

petitioner/defendant being a resident of Delhi was unaware of the developments in

the case.' It is seen that the costs imposed was paid on his engaging a new counsel

on 29.06.2006. It is also seen that the learned court below has not questioned the

genuineness of the reasons given but has rejected the petition on the grounds that it

has no power to do that what is prohibited by law or the court. The Apex court in Page No.# 9/11

Salem Bar Association (supra) held that :

"while examining the scope of proviso to Order XVII Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to Order XVII Rule 2 incorporating clauses (a) to (e) by Act 104 of 1976 has been retained. Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The proviso to Order XVII Rule 1 and Order XVII Rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments as provided in proviso to Order XVII Rule 1. In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, devastation on account of Tsunami). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted. Ordinarily, where the costs or higher costs are awarded, the same should be realistic and as far as possible actual cost that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable but is being Page No.# 10/11

granted on account of either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save proviso to Order XVII Rule 1 from the vice of Article 14 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases noted above. The limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the Court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. We may, however, add that grant of any adjournment let alone first, second or third adjournment is not a right of a party. The grant of adjournment by a court has to be on a party showing special and extra- ordinary circumstances."

13] The court find it fit to examine the facts of the instant case in the context of the

observations made by the Apex court in Salem Bar Association case (supra), and

I am of the considered view that the explanation given above by the petitioner for not

being present to cross examine PW1 on the dates fixed i.e 18.12.2018, 11.03.2019

and 08.04.2019 and for payment of the costs imposed only on 29.06.2006 can be

considered to be 'special circumstances' which were beyond the knowledge and

control of the petitioner/defendant under Order 17 rule 2 of the Civil Procedure Code.

Thus, in view of the decision of the Apex court in Salem Bar Association case

(supra) and having regard to the injustice that may result on refusal thereof, wherein Page No.# 11/11

the suit is with regards to the right of the petitioner/defendant to claim 1/6th share in

the property of his father, Late Ramawatar Agarwal, for the ends of justice, the

impugned orders dated 30.04.2019 passed in Title Suit No.16/2017 by the Civil Judge,

Hailakandi, and the order dated 31.08.2019 in Misc. Cases No.65/2019 are quashed

and set aside.

15 The learned trial Court, Civil Judge, Hailakandi may thus proceed with the case

in Title Suit No.16/2017, by giving opportunity to the petitioner/defendant to cross

examine the PW-1 and dispose the matter as expeditiously as possible. Both the

parties are to appear before the learned Lower Court on 02.11.2022 for further

proceedings of the case.

16] With the above direction, this CRP (I/O) No. 421 of 2019 stands disposed of.

JUDGE

Comparing Assistant