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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR
ORDER
S.B. Civil Writ Petition No. 4892/2012
S.B. Civil Misc. Stay Application No 4057/2012
(Heera Lal Versus Additional District & Sessions
Judge & Others)
Date of Order

13th April, 2012

::

HON'BLE MR. JUSTICE MAHESH BHAGWATI

Mr. Ajay Gupta, counsel for the petitioner
BY THE COURT:

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,
District

whereby
Judge

the

learned

Sambharlake,

Additional

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

declaration

of

dated

mutation

Will

as

well

as

29.11.1999

as

null and void against the defendant-petitioner

in

the

court

Sambhar

Lake,

of

Additional

District

District

Jaipur.

Judge,

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

evidence

learned

of

29.1.2011.

The

application

trial

the

court

closed

the

defendant-petitioner

on

defendant-petitioner

imploring

the

court

filed

that

in

an
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.
3.

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

28.2.2007,

but

the
on

defendant's
that

date,

evidence
no

on

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

only

this,

the
on

defendant's

25.7.2011,

evidence.

opportunity

Not
was

granted to the defendant-petitioner to produce

the

evidence

instead

of

as

to

cost

producing

of

Rs.

the

200/-,

evidence

but
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

defendant-petitioner

for

21.9.2011,

did

not

but

produce

the
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

defendant

evidence.

always

had

Prime
been

to

object
linger

of

the

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.
4.

In the case of M/s. Shiv Cotex Versus

Tirgun Auto Plast P. Ltd. & Others reported in

2011

AIR

SCW

similar

5789,

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

plaintiffs'
dates

any

fixed

evidence,
evidence

the

but

was

on

let

matter
none

in

by

of

for
these

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
none

of

evidence
these

but

dates

on
any

evidence was let in by it. What

should

the

court

circumstances?

do

Is
give

in

the

obliged

to

after

adjournment

such
court

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

disputes

drag

misplaced

on

that
and

civil

on.

sympathy

The
and

indulgence by the appellate and

revisional courts compound the
malady
hand

further.
is

The

case

case
of

in
such

misplaced sympathy. It is high

time

that

courts

become

sensitive to delays in justice

delivery
that

system

adjournments

efficacy
and

if

of

do

judicial

this

controlled

and

menace

realize
dent

the

process
is

adequately,

not
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.
5.
has

Otherwise too, the Hon'ble Apex Court

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

provided
XVII,

in

Rule

mandatory

of

the

suit

to

Order

proviso
1,

and

CPC
in

is

not

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.

'justifiable

When

cause'

we
what

say
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

adjournment

the
by

request
party

for

during

the hearing of the suit beyond

three
and

adjournments
sort

of

necessity

unavoidable

like

compelling

sudden

illness

of the litigant or the witness

or

the

lawyer;

family

of

natural

death

any

one

calamity

earthquake,

etc.

where

of

any

reside;

an

in

of

like
in

them;
floods,

the

these

accident

the

area

persons
involving

the litigant or the witness or

the lawyer on way to the court
and such like cause. The list
is

only

illustrative

exhaustive.
absence

However,

of

the

professional
or

ground

of

change

strike
a

continuous
lawyer

in

elsewhere

of

represents

of
other

on

the

call

or

the

lawyer

or

the

of

party
must

his

or

illness

(the

or

because

work

not
the

lawyer

non-availability
court

and

the

whom
then

he
make

alternative arrangement well in

advance)

or

similar

will

not

justify

three

adjournments

grounds

more
to

than
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

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

co-operate

defendant

with

the

must

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

is

concerned,

case

as

present
if

the

stakes were high, the plaintiff

ought to have been more serious
and vigilant in prosecuting the
suit

and

evidence.

producing
If

its

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

justification

for

when
that

no

course

existed.
6.
of

It is relevant to note that the scope

Article

227

of

the

Constitution

is

very

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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.
7.

This

petition

has

been

filed

under

Article 227 of the Constitution of India. In

the case of Shalini Shyam Shetty and Another

Versus

Rajendra

(2010)

Shankar

Supreme

Patil

Court

Cases

reported

329,

in

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,

promotion

but
of

only

to

public

be

directed

confidence

for

the

in

the

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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.

8.

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.

litigants

It

seek

is

sad,
and

but

the

true
court

that
grant

the

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

petitioners

that

invoked

application,
the

the

extraordinary

jurisdiction of this Court under Article 227 of

the Constitution.
9.
the

In the final analysis, the upshot of

above

defendant

discussion
is

found

is
to

that
have

the
left

petitioner
no

stone

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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
trial

process

court,

of

court

having

also.

narrated

The
the

learned
unending

lineal of five years proceedings ad-longum, is

found to have rightly dismissed the application
and

rightly

The

impugned

closed

the

order

is

defendant's
just

and

evidence.

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.
10.

For the reasons stated above, the writ

petition being bereft of any substance stands

dismissed

accordingly

so

as

to

cost

of

Rs.

5,000/-, to be paid to the plaintiff-respondent

no.2.
11.

Consequent upon the dismissal of writ

petition,
therewith,

the
does

stay
not

application,

survive

and

filed

that

also

stands dismissed.
(MAHESH BHAGWATI),J.
Dk/All Corrections made in the judgment/order have been incorporated in the
judgment/order being emailed.
Dilip Khandelwal

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Personal Assistant