- (1.) MR. Hem Sinigh Rathore, for the petitioner. By way of the instant writ petition, the petitioner has beseeched to quash and set aside the order dated 3rd April, 2012, whereby the learned Civil Judge (Sr. Div.), Jhunjhunu, closed the evidence of the petitioner.
(2.) HAVING heard the learned counsel for the petitioner/judgment debtor and carefully perused the relevant material on record including the impugned order, it is revealed that the petitioner/judgment debtor was granted adjournment to produce the evidence on 3rd January, 2012. On that day, no witness was present in the court and the petitioner sought one more adjournment to produce the said evidence. The case was adjourned to 17th January, 2012. On that day, the Advocates struck down the work, resultantly, the case was adjourned to 7th February, 2012. The petitioner/judgment debtor failed to produce evidence on that day too and he was granted last opportunity and the case was adjourned to 6th March, 2012. Despite having given two opportunities earlier, the petitioner/judgment debtor was found to have made no effort in producing the evidence and in the interest of justice, one more opportunity was granted at the cost of Rs. 200/- and the case was adjourned to 3rd April, 2012. Shockingly, the petitioner/judgment debtor did not produce the evidence on that day too, hence, there was no option left with the learned executing court but to close the evidence. The Hon'ble Apex Court has consistently deprecated the practice of granting more than three adjournments to either of the parties, as the proviso to Order 17 Rule 1 of CPC contemplates only three adjournments to be given to a party for its evidence. The Hon'ble Apex Court has also observed that ordinarily the cap provided in proviso to Order 17 Rule 1 of CPC should be maintained, but after three adjournments, the party can be granted an opportunity to lead the evidence, provided that any 'justifiable cause' was shown to the court. In the case of M/s. Shiv Cotex Versus Tirgun Auto Plat P.Ltd. & Others reported in 2011 AIR SCW 5789, the Hon'ble Apex Court has condemned the practice of giving more than three opportunities for evidence in the following terms:- "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." If viewed the case of the petitioner/judgment debtor, in the light of the aforesaid judgment of the Hon'ble Apex Court, it is found that the learned trial court had granted more than three adjournments to the petitioner/judgment debtor to produce the evidence, but the petitioner did not care to produce even a single witness in evidence. The learned executing court rightly closed the evidence of the petitioner/judgment debtor. The impugned order is found to be just and proper and is found to have suffered from no infirmity. 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 power 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. This writ 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.
(3.) FOR the reasons stated above, the writ petition fails and the same being bereft of any merit stands dismissed. Consequent upon the dismissal of the writ petition, the stay application does not survive and the same also stands dismissed.;