- (1.) BY way of the instant writ petition, the defendant-petitioner has beseeched to quash and set-aside the orders dated 21.9.2011 and 21.3.2012, whereby the learned Additional District Judge Sambharlake, District Jaipur closed the evidence of the defendant-petitioner and further dismissed the application of the defendant-petitioner for re-opening his evidence respectively.
(2.) SHORN of unnecessary details, the facts of the case are that the plaintiff-respondent no.2 filed a suit for declaration, permanent injunction, cancellation of Will as well as declaration of mutation dated 29.11.1999 as null and void against the defendant-petitioner in the court of Additional District Judge, Sambhar Lake, District Jaipur. During the pendency of the suit, the defendant-petitioner was granted ample opportunity, but he did not produce any evidence in support of his case and repeatedly implored for adjournments just with a view to procrastinate the trial of the suit. Finally the learned trial court closed the evidence of the defendant-petitioner on 29.1.2011. The defendant-petitioner filed an application imploring the court that in the interest of justice, the order dated 29.1.2011 may be recalled and he may be granted one and the last opportunity to produce evidence in support of his case. The learned trial court dismissed this application also on 21st March, 2012. Hence, this writ petition. Having reflected over the submissions made by learned counsel for the petitioner and carefully scanned the impugned order, it is revealed that first of all, the case was fixed for defendant's evidence on 6.9.2006. Thereafter, the defendant-petitioner filed an application under Order 22 Rule 4(3) CPC and after its disposal, the case was again fixed for recording the defendant's evidence on 28.2.2007, but on that date, no witness appeared on behalf of the defendant-petitioner. Again on 30.5.2007, when the case was fixed for defendant's evidence, the defendants filed an application under Order 13 Rule 13 and Section 151 CPC. On 25.7.2007, the said application was allowed and the case was fixed for 18.9.2007 for recording the defendant's evidence. Thereafter too, the defendant did not produce any evidence and on 11.2.2009, he filed an application under Order 7 Rule 11 CPC. The said application was dismissed by the learned trial court on 26.5.2011 and again the case was fixed for recording the defendant's evidence. Not only this, on 25.7.2011, opportunity was granted to the defendant-petitioner to produce the evidence as to cost of Rs. 200/-, but instead of producing the evidence and depositing the cost, the defendant-petitioner filed the affidavits. In the interest of justice, one more opportunity was granted and the case was fixed for 21.9.2011, but the defendant-petitioner did not produce the evidence and sought time. It is relevant to note that the suit has been pending before the learned trial court since the year 2000. The learned trial court is found to have passed the impugned order with great details of adjournments and it is revealed that the suit remained pending for defendant's evidence w.e.f. September, 2006 till 21st September, 2011. Thus, it remained pending for more than 5 years and the trial court granted 10 adjournments merely for recording the evidence of the defendant. It is also found that not only once, but the defendant just with a view to procrastinate the trial of the suit filed numerous applications, some times under Order 7 Rule 14 CPC and on some occasions under other provisions of CPC. It appears that the defendant, by hook or by crook, intended to protract the trial of the suit and kept it alive as much as long. Thus, it is tangible from the order sheets recorded by the trial court from time to time that either on the date when the case was fixed for recording the evidence of the defendant, one or the other application under the provisions of CPC was filed by the defendant or he endeavoured not to produce the evidence. Prime object of the defendant always had been to linger on the proceedings of the suit. In such cases, when the evidence is not adduced by the parties, the Hon'ble Apex Court has repeatedly cautioned the trial court not to be sympathetic and condemned the grant of unnecessary adjournments. In the case of M/s. Shiv Cotex Versus Tirgun Auto Plast P. Ltd. & Others reported in 2011 AIR SCW 5789, similar were the circumstances and the case was being again and again adjourned for recording the plaintiffs' evidence. As a matter of fact, the trial court had granted more than sufficient adjournments to the plaintiffs to produce evidence in support of their case. After the issues were framed on July 19, 2006, on three occasions, the trial court fixed the matter for plaintiffs' evidence, but on none of these dates any evidence was let in by them. The Hon'ble Apex Court posed the question as to what should the Court do in such circumstances The Hon'ble Apex Court bitterly deprecated the leisurely practice of the parties in seeking adjournments after adjournments for producing the evidence. The Hon'ble Apex Court observed thus: "On three occasions, the trial court fixed the matter for the plaintiff's evidence but on none of these dates any evidence was let in by it. What should the court do in such circumstances Is the court obliged to give adjournment after adjournment merely because the stakes are high in the dispute Should the court be a silent spectator and leave control of the case to a party to the case who has decided not to take the case forward It is sad, but true, that the litigants seek and the courts grant adjournments at the drop of the hat. In the cases where the Judges are little pro-active and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realize that adjournments do dent the efficacy of judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit." Otherwise too, the Hon'ble Apex Court has consistently condemned the leisurely practice of the parties in seeking adjournments for producing the evidence. In the case of M/s. Shiv Cotex (supra), the Hon'ble Apex Court has further held thus: "16.No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order XVII, Rule 1, CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order XVII, Rule 1, CPC should be maintained. When we say 'justifiable cause' what we mean to say is, a cause which is not only 'sufficient cause' as contemplated in sub-rule (1) of Order XVII, CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit whether plaintiff or defendant must co-operate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, no evidence was let in by the plaintiff, in our view, it deserved no sympathy in second appeal in exercise of power under Section 100, CPC. We find no justification at all for the High Court in upsetting the concurrent judgment of the courts below. The High Court was clearly in error in giving the plaintiff an opportunity to produce evidence when no justification for that course existed." It is relevant to note that the scope of Article 227 of the Constitution is very limited. The Hon'ble Apex Court has consistently held in plethora of cases that the extra-ordinary jurisdiction under Article 227 of the Constitution can be invoked by the High Court only when the impugned order is found to be perverse, contrary to material or it results in manifesting injustice. It has also been repeatedly held by the Hon'ble Apex Court that the High Court while exercising extra-ordinary jurisdiction should escape from interfering with the impugned orders of the courts below and such powers should be exercised sparingly and not in routine. It is also settled law that the High Court should be very slow in upsetting the pure finding of facts.
(3.) THIS petition has been filed under Article 227 of the Constitution of India. In the case of Shalini Shyam Shetty and Another Versus Rajendra Shankar Patil reported in (2010) 8 Supreme Court Cases 329, their Lordships of Hon'ble Apex Court have held that the power under Article 227 of the Constitution of India is a reserved and exceptional power for judicial intervention to be exercised not merely for the grant of relief in any even of the case, but only to be directed for the promotion of public confidence in the administration of justice. It has been held that the power is unfettered, but subject to high degree of judicial discipline and interference is to be kept at the minimum." If viewed the case of the petitioner-defendant from above angle, in the light of the aforesaid judgment of Hon'ble Apex Court, it is found that the learned trial court had not only granted more than three adjournments to the defendant to produce evidence, but the court granted as many as 10 adjournments merely for producing the evidence in support of their case, but the defendant never cared to produce the evidence. It is sad, but true that the litigants seek and the court grant adjournments at the drop of the hat. After the evidence was closed by the court on 21.9.2011, they again moved an application under Order 18 Rule 2 readwith Section 151 CPC for reopening the evidence of the plaintiffs and when the court dismissed that application, the petitioners invoked the extraordinary jurisdiction of this Court under Article 227 of the Constitution. In the final analysis, the upshot of the above discussion is that the petitioner defendant is found to have left no stone unturned in procrastinating the trial of the suit. He is found to have abused not only the process of law, but is found to have abused the judicial process of court also. The learned trial court, having narrated the unending lineal of five years proceedings ad-longum, is found to have rightly dismissed the application and rightly closed the defendant's evidence. The impugned order is just and proper and suffers from no infirmity. The writ petition, in contra, is found to be totally bogus, irrelevant and devoid of any substance, which deserves to be dismissed at the threshold with exemplary cost. ;