SUNIL KUMAR SINHA,J. - (1.) THE petitioner, who is plaintiff before the trial Court, has challenged the legality, validity and propriety of the order dated 18.8.2006 passed in Civil Suit No.57-A/2005 by the II Civil Judge, Class-II, Bilaspur. By the aforesaid order, the learned trial Court has dismissed an application filed on behalf of the petitioner/ plaintiff under Order XVII Rule 1 of the Code of Civil Procedure seeking adjournment, when the matter was fixed for plaintiffs' evidence.
(2.) THE brief facts, necessary for disposal of this petition, are that the plaintiff has filed the aforesaid civil suit for declaration of her title, permanent injunction and also for possession against as many as 14 defendants. This suit was fixed for plaintiff's evidence on 18.8.2006. On the said date, counsel for the plaintiff filed an application under Order XVII Rule 1 C.P.C., pleading that as the plaintiff is working as a Professor in C.M.D. College, Bilaspur and she could not get leave for the said date, hence neither the plaintiff nor her witnesses are present in the Court, therefore, in all fairness, one more opportunity may be afforded to the plaintiff to adduce evidence in this case This application was vehemently opposed by the counsel for the defendants. Learned trial Court, after perusal of the record, dismissed the aforesaid application on the ground that on earlier three occasions also, when the matter was fixed for evidence i.e., on 17.2.2006,08.3.2006 and 25.3.2006, the plaintiff had already taken adjournments, therefore, this 4th adjournment on 18.8.2006 would not be possible in view of the amended provisions of Order XVII Rule 1 C.P.C., which permits only 3 adjournments in such situations. While rejecting the said application, apart from referring to the provisions of Order XVII Rule 1 C.P.C., the trial Court has also said that the aforesaid application, filed by the plaintiff, does not appear to be proper and bonafide and in view of the aforesaid provisions, the same cannot be allowed.
(3.) LEARNED counsel for the petitioner argues that the provisions of Order XVII Rule 1 C.P.C., as amended by the recent Act are not mandatory, as they are directly, and the trial Court erred in law in passing an order of refusal of 4th adjournment to the plaintiff only on the grounds of provisions of Order XVTI Rule 1. His submission is that the trial Court would have independently applied its mind in the prevailing facts and circumstances of this case and then only an order in this regard would have been passed. He submits that it is always expedient in the interest of justice to finally adjudicate any matter subjudice before a Court and not to take recourse to the technicalities of law, which have been brought into force with a particular legislative intent. He refers to the decision rendered in the matter of Salem Advocate Bar Association, T.N. Vs. Union of India1 (for short Salem's case).;