Gujarat High Court
Vipul Gopalbhai Darji vs Bhavnaben Mukeshbhai Patel on 15 March, 2021
Bench: Ashokkumar C. Joshi
C/AO/202/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 202 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/APPEAL FROM ORDER NO. 202 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
=======================================
Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy
3 NO
of the judgment ?
Whether this case involves a substantial question
4 of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
=======================================
VIPUL GOPALBHAI DARJI
Versus
BHAVNABEN MUKESHBHAI PATEL
=======================================
Appearance:
MR JITENDRA H SINGH(3199) for the Appellant(s) No. 1
MR AM PAREKH(562) for the Respondent(s) No. 1
=======================================
CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 15/03/2021
ORAL JUDGMENT
1. This appeal under section 104 r/w. O.43 R.1(r) of the Civil
Procedure Code, 1908 (CPC) is filed assailing the order dated
30.10.2018, passed by the learned 6th Additional Senior Civil
Judge, Surat below exh. 1 in Civil Misc. Application No. 143 of
C/AO/202/2019 JUDGMENT
2018, whereby, the learned trial Judge dismissed the said
application for restoration of Special Civil Suit No. 64 of 2014,
which was dismissed for default by an order dated 30.07.2018.
2. Facts in nutshell of the case on hand are that the present
appellant - original plaintiff filed a suit being Special Civil Suit No.
64 of 2014 for declaration and permanent injunction and
cancellation of sale deed through power of attorney - Baria
Dhirajsinh Laxmansinh. However, since the said power of
attorney began to act against the interest of the appellant -
plaintiff, the appellant - plaintiff eventually cancelled the said
power of attorney on 08.07.2015 and appointed new power of
attorney namely Sudhaben Gopalbhai Darji in the suit. However,
the earlier power of attorney holder was insisting the appellant -
plaintiff to retain him as a power of attorney. He even did not
handover the papers to the appellant and hence, the appellant -
plaintiff had to arrange for documents from various offices. It is
the case of the appellant - plaintiff that on 26.07.2018, the
matter was on board at the stage of framing Issues. On the said
date, adjournment application was given, which came to be
rejected and the suit was posted on 30.07.2018. On that day,
adjournment application given by the appellant - plaintiff came to
be rejected. Also, the learned trial Judge dismissed the suit for
default under O.9 R.3 of the CPC. The appellant - plaintiff also
moved a Civil Misc. Application No. 143 of 2018 for restoration of
the suit, however, the same also came to be dismissed vide order
dated 30.10.2018 by the learned trial Judge and hence, this
appeal.
3. Heard, learned advocate Mr. J. H. Singh for the appellant -
original plaintiff and learned advocate Mr. A. M. Parekh for the
C/AO/202/2019 JUDGMENT
respondent - original defendant.
3.1 The learned advocate for the appellant submitted that, as
can be seen from the copy of status report of the suit produced
on record, Issues in the suit were framed on 26.07.2018 and
thereafter, the suit was posted for evidence on 30.07.2018, which
was the first date for leading evidence. However, the learned
trial Judge, without considering the adjournment application of
the appellant, dismissed the suit of the appellant for default. It is
submitted that the suit was frequently transferred from one Court
to another and as per the status report, from 04.12.2017 to
26.07.2018, the same was at the stage of Issues only and
immediately, on 30.07.2018, the suit is being dismissed for
default by the learned trial Judge, without being given an
opportunity to represent his case to the appellant - plaintiff,
taking a very hyper-technical approach in the matter. The
learned advocate for the appellant also submitted that another
identical suit being Special Civil Suit No. 374 of 2014 is also
pending before the learned Court below and the said fact was
also apprised to the learned trial Judge, however, the same was
not taken into consideration. It is submitted that due to genuine
reasons of non-availability of documents etc., as aforesaid, the
appellant - plaintiff could not produce evidence, otherwise, the
appellant would gain nothing by not producing evidence in time.
It is submitted that such a hyper-technical approach of the
learned trial Judge would cause irreparable loss to the appellant.
Making such submissions, it is urged that impugned orders may
be set aside and the suit may be restore to its original file.
3.2 In support of his case, the learned advocate for the
appellant has relied upon a decision of the Hon'ble Apex Court in
C/AO/202/2019 JUDGMENT
Kusumben Indersinh Dhupia v. Sudhaben Biharilalji
Bhaiya and Another, (2019) 3 SCC 569.
4. Per contra, learned advocate Mr. Parekh for the respondent
- defendant, while supporting the impugned orders, submitted
that the learned trial Judge has committed no error, which
requires interference at the hands of this Court. It is submitted
that, time and again, adjournments were sought for and there
was deliberate procrastination of the suit proceedings on the part
of the appellant - plaintiff and in the circumstances, the learned
trial Judge has rightly dismissed the suit for default. It is
submitted that under O.17 of the CPC three adjournments can be
granted on valid reasons and accordingly, the learned trial Judge
has rightly rejected the adjournment applications of the appellant
and eventually, dismissed the suit. Accordingly, it is urged that
present appeal, being devoid of any merits, requires to be
dismissed.
5. Regard being had to the submissions advanced by the
learned advocates for the respective parties so also perusing the
papers available on record, it appears that the suit filed by the
present appellant came to be dismissed for default by an order
dated 30.07.2018 and Civil Misc. Application No. 143 of 2018 for
restoration of the suit also came to be dismissed with cost by an
order dated 30.10.2018 passed by the learned 6th Additional
Senior Civil Judge, Surat.
5.1 In the aforesaid facts, if the on-line case status report of the
suit proceedings is perused, it is revealed that the suit was
instituted on 01.02.2014, written statement is filed on 16.12.2014
and thereafter, the suit was time and again, i.e. from 16.01.2015
C/AO/202/2019 JUDGMENT
to 14.09.2017, posted for hearing of the injunction application
and thereafter, the same was posted for Issues and adjourned
again from time to time till 26.07.2018 and immediately,
thereafter, on 30.07.2018, the suit came to be dismissed for
default as the plaintiff could not lead the evidence. It is pertinent
to note that it was the first date only (viz. 30.07.2018) for leading
evidence by the plaintiff on which date, the adjournment
application of the appellant - plaintiff came to be rejected so also
the suit was dismissed for default and civil application therein for
restoration of the suit also came to be dismissed with cost.
5.2 Thus, from the above, it is crystal clear that on the very first
date for leading evidence by the appellant - plaintiff, the suit was
dismissed for default, which was otherwise, pending since 2014,
as can be seen from the status report, as referred herein above.
It is observed by the learned trial Judge that under the provisions
of O.17 of the CPC not more that three adjournments can be
given during the hearing of the suit. However, it is settled law
that, every provision must be understood in a reasonable manner
and the Courts should not take hyper-technical view in the matter
and as per the catena of decisions of the Hon'ble Apex Court, a
matter should be decided on merits rather than mere
technicalities. The primary function of a Court is to adjudicate
the dispute between the parties and to advance substantial
justice. The provisions of law should have liberal construction as
they are not meant to destroy the rights of parties but to check
the dilatory tactics only.
5.3 In this regard, it would be apt to refer to a decision of the
Hon'ble Apex Court in Salem Advocate Bar Association,
Tamil Nadu v. Union Of India (UOI), AIR 2005 SC 3353,
C/AO/202/2019 JUDGMENT
wherein, while dealing with the aspect of three adjournments as
provided in O.17 of the CPC, the Hon'ble Apex Court has held as
under:
"Adjournments Order XVII of the Code relates to grant of
adjournments. Two amendments have been made therein.
One that adjournment shall not be granted to a party more
than three times during hearing of the suit. The other
relates to cost of adjournment. The awarding of cost has
been made mandatory. Costs that can be awarded are of
two types. First, cost occasioned by the adjournment and
second such higher cost as the court deems fit.
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
C/AO/202/2019 JUDGMENT
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 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. It cannot be in
routine. While considering prayer for grant of adjournment,
it is necessary to keep in mind the legislative intent to
restrict grant of adjournments. Order XVIII Rule 2 Order
XVIII Rule 2(4) which was inserted by Act 104 of 1976 has
been omitted by Act 46 of 1999. Under the said Rule, the
Court could direct or permit any party, to examine any
party or any witness at any stage. The effect of deletion is
the restoration of the status quo ante. This means that law
that was prevalent prior to 1976 amendment, would
govern. The principles as noticed hereinbefore in regard to
deletion of Order XVIII Rule 17(a) would apply to the
deletion of this provision as well. Even prior to insertion of
Order XVIII Rule 2(4), such a permission could be granted
by the Court in its discretion. The provision was inserted in
1976 by way of caution. The omission of Order XVIII Rule
2(4) by 1999 amendment does not take away Court's
C/AO/202/2019 JUDGMENT
inherent power to call for any witness at any stage either
suo moto or on the prayer of a party invoking the inherent
powers of the Court."
5.4 Thus, it is settled position of law that in appropriate cases,
the Court can grant adjournments beyond what is provided for
and there is no absolute bar in granting adjournments beyond
three adjournments.
5.5 In the aforesaid view of the matter, when the suit was
pending since 2014 and was adjourned from time to time for
Written Statement as well as for framing of Issues and it is only in
2018 on the first date i.e. on 30.07.2018, it came to be dismissed
for default, in the considered opinion of this Court, the learned
trial Judge has taken a very hyper-technical view of the matter.
As is said, every matter should be decided on merits rather than
mere technicalities and the said fact, the learned trial Judge has
failed to consider, more particularly, when 'sufficient cause' and
'reasonable ground' are not defined under the law, and that, in
general, the dispute shall be resolved on its own merits. Further,
it is also the duty of the Courts to avoid multiplicity of
proceedings and procrastinating the issues on mere
technicalities. Further, the learned trial Judge also appears to
have failed to consider the doctrine of dominus litis, and the
appellant herein who is original plaintiff is the master of suit.
5.6 In the case of Kusumben Indersinh Dhupia (supra),
relied upon by the learned advocate for the appellant, also the
Hon'ble Apex Court has observed that the appellant - plaintiff
was present in almost all hearings before the trial Court which
indicates that he was genuinely pursuing the matter. The
plaintiff having filed the suit for declaration and injunction in our
C/AO/202/2019 JUDGMENT
considered view ought to be given an opportunity to pursue his
suit. In the present case also, the appellant - plaintiff was very
much present before the Court, however, sought adjournment,
which was not considered by the learned trial Judge and
accordingly, it cannot be said that the appellant - plaintiff is not
interested in proceeding with the suit. Besides, herein also, when
the appellant has filed a suit for declaration and permanent
injunction, in the considered opinion of this Court, the appellant
should be given an opportunity to pursue his suit.
6. For the aforesaid discussion and observations, present
appeal succeeds and is allowed accordingly. The order dated
30.07.2018 passed in Special Civil Suit No. 64 of 2014 as well as
the order dated 30.10.2018, passed below exh. 1 in Civil Misc.
Application No. 143 of 2018, by the learned 6th Additional Senior
Civil Judge, Surat, are hereby set aside. The Special Civil Suit No.
64 of 2014 is restored to its original file. The learned trial Judge
shall make all the endeavour to expedite the suit and conclude
the same as early as possible, preferably within 08 (eight)
months from the date of receipt of copy of this order, without
being influenced by any order. The parties to the suit are
directed to cooperate in the trial and shall not ask for
unnecessary adjournments.
6.1 However, in the facts and circumstances of the case, the
Court deems is proper to impose some exemplary cost upon the
appellant - plaintiff. Accordingly, the appellant - plaintiff is
directed to deposit a sum of Rs.10,000/- (Rupees Ten Thousand
only) before the trial Court concerned within a period of 02 (two)
weeks from the date of receipt of copy of this order, which, the
respondent - defendant is at liberty to withdraw the same.
C/AO/202/2019 JUDGMENT
6.2 In view of main appeal is allowed, Civil Application No. 1 of
2019 therein for stay does not survive and the same is disposed
of accordingly.
6.3 Registry to return the R&P, if received, to the trial Court
concerned forthwith.
[ A. C. Joshi, J. ]
hiren
