Adjournments frequently sought by the parties contribute significantly to the delays caused in deciding the matters. The granting of adjournments is at the discretion of the court. The rules governing adjournments are considerably strict and if applied in their true spirit can substantially reduce the delays involved.
Order 17 of the Code of Civil Procedure deals with the provision of adjournment. It runs as under :-
1. Court may grant time and adjourn hearing- (1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing.
Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.
Provided that,-
(a) When the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.
(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.
(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.
(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time.
(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit,record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.
2 . Procedure if parties fail to appear on day fixed,- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.
Explanation.- Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.
3 . Court may proceed notwithstanding either party fails to produce evidence, etc.— Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his
witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,-
(a) if the parties are present, proceed to decide the suit forthwith, or
(b) if the parties are, or any of them is, absent, proceed under rule 2
In Salem Advocate Bar Association, Tamil Nadu v. Union of India - AIR 2005 SC 3353, the Supreme Court commented upon these amendments in Order 17 Code of Civil Procedure in the following words:
" 29. 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.
30. 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.
31. 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 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 foe 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 extraordinary 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."
In M/s. Shiv Cotex vs Tirgun Auto Plast P. Limited and others 2011(4) RCR(Civil) 807 the Supreme Court ruled as follows for courts to emulate and to exercise discretionary jurisdiction in the following manner in the matter of granting adjournments:-
"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
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.
In Bharat Rajput vs. Amrik Singh Aulakh and others (C.R.No.1556 of 2014) it was observed that :
There is nothing like 'last opportunity' in the Code of Civil Procedure, 1908 or last opportunity given many times over or last final opportunity, ultimate opportunity and penultimate opportunity. This is endless compassion. Therefore, there is greater need for the trial judge to consciously and carefully weigh all attending circumstances in a given case to secure the ends of justice before the first such order is issued.
In Joginder Singh and Ors. v. Smt. Manjit Kaur Civil Revision No 5885 of 1998, it was held that
The cumulative effect of the provisions of Order 18 Rule 2 read with Rules 1 and 2 of Order 17 of Code of Civil Procedure and inherent powers of the Civil Court vested in it under Section 151 of the Code, placed an implied obligation on the Court not to adjourn the case unless sufficient cause was shown. The cause by itself cannot always be treated as a ground for repeated adjournments. Un-necessary and avoidable adjournments must be denied by the Courts. On the one hand, trial Courts are expected to dispose of suits and other proceedings expeditiously, and on the other, if parties to a lis are permitted to get the suits adjourned on the mere asking and that too for the indefinite times, it would frustrate the very spirit behind the provisions of the Code of Civil Procedure.
Case Instances
1. In Raj Kumar vs Ramesh Kumar And Others CR No.2071 of 2014 HIGH COURT OF PUNJAB AND HARYANA
A revision petition is directed against the order dated 11.02.2014 whereby evidence of defendant-petitioner has been closed by order of the trial judge. The prayer is for revising the impugned order and for leave to produce witnesses in defense of the suit.
The Court finds that
" It appears from the record that the plaintiff-respondent No.1 instituted a suit for partition of suit property against the respondents- defendants. After the plaintiff let in and closed his evidence, the defendant-petitioner had availed several opportunities to lead his evidence. On 26.09.2013, no defence witness was in attendance and the case was adjourned to 16.10.2013 for defence evidence subject to last opportunity for the purpose. On 16.10.2013, the defendant failed to produce his witnesses and the case was again adjourned to 07.01.2014 subject to last opportunity which was also rendered futile by non- production. On 11.02.2014, the court was left with no option but to close the evidence by order. The court came to the conclusion that petitioner- defendant had availed six effective opportunities including two last opportunities for leading his evidence but had failed to conclude his evidence. "
And held that
" I find no infirmity with the orders passed by the court below. There is no scope left for interference or indulgence in revisional jurisdiction."
2. In Chander Singh vs Chottulal AIR 1994 Raj 186,
A revision petition has been filed against the order of the Additional Munsif No. 2, Jodhpur dated November 9, 1993 by which he has closed the evidence of the defendant-petitioner and has fixed the case for final arguments
In the present case the plaintiff-non-petitioner has filed a suit for recovery of possession of the disputed premises against the defendant petitioner. On February 15, 1992, the plaintiff closed his evidence and April 9, 1992 was fixed for the evidence of the defendant. Thereafter, several dates were fixed for the same purpose. On November 9, 1993, the impugned order was passed.
The Court finds that
The plaintiff closed his evidence on February 15, 1992, keeping his right to produce evidence in rebuttal and April 9, 1992 was fixed for defendant's evidence. Thereafter, (1) 29-5-1992, (2) 27-8-1992. (3) 4-9-1992, (4) 18-9-1992, (5) 7-10-1992, (6)10-12-1992, (7) 21-1-1993, (8) 23-3-1993, (9) 14-4-1993, (10) 14-5-1993, (11) 31-5-1993, (12) 19-7-1993, (13) 3-8-1993, (14) 1-9-1993, (15) 7-9-1993, (16) 27-9-1993, (17) 14-10-1993, (18) 25-10-1993, and (19) 9-11-1993 were fixed for defendant's evidence, in between these dates, several other dates were also fixed for disposal of application moved by the defendant-petitioner under Order 13, Rule 2 and Order 6 Rule 17, C.P.C. He was also granted time to bring stay order from the Court in revisions to be filed against the orders passed on the said applications. It is clear from the order-sheet of the case that the learned trial court repeatedly adjourned the case in utter disregard of the provisions of Order 17, Rule 1, C.P.C
And held that
Such liberal attitude of the trial courts is mainly responsible for the huge arrears of cases and inordinate delay in their disposal. The learned trial court should have closed the defendant’s evidence much earlier
Accordingly, the revision petition is dismissed with costs.
3. In Shiv Nath & another Vs. Bangai Civil Misc. Writ Petition No. 28252 of 2006
The plaintiffs-petitioners' application for adjournment was rejected by the trial court vide on the ground that earlier on three occasions plaintiff's such prayer of adjournment had been granted and in the light of proviso added to Order 17 Rule 1 C.P.C. no adjournment beyond three dates could be granted by the court. The petitioners subsequently moved the trial court with another application under Section 151 C.P.C. for permitting Ram Raj, one of the the plaintiffs present in the court, to be cross examined by the defendant's counsel. But that application too has been dismissed by the trial court . Thereafter, only the petitioner approached the revisional court which also did not find favour of the court and has been dismissed. Then he filled the present writ petition.
The Court finds that
The petitioners on 30.3.2005, which was the 4th date fixed for final hearing (evidence) in the suit, had moved an application for adjournment. The ground taken by the petitioner for adjournment was that the plaintiff P.W. 1 had fallen ill and could not reach the court to be present for his cross examination as such. His examination in chief had already been recorded earlier. The ground of illness, which had been taken for such adjournment, was though quite substantial but the gravity of the same has been out-weighed by the trial court simply keeping in view the referred proviso to Rule 1 of Order 17 C.P.C. Subsequent thereto the very next day (31.3.2005) when the plaintiff Ram Raj (P.W. 1) appeared before the court and moved an application under Section 151 C.P.C. offering himself for the cross examination, that prayer has also been dismissed by the trial court.
The Court observed that
A perusal of the provisions of Order XVII no doubt makes it clear that the statute provides guidelines not to grant adjournment sought by one party in the matter of hearing of a suit on more than three occasions. But at the same time it also does not put complete fetters on the court's discretion for such grant of adjournment, in case, the party suffering on account of such grant of adjournment can be compensated by award of costs and there are exceptional reasons or circumstances beyond the control of that party seeking adjournment to proceed with the hearing.
In view of the availability of an exceptional circumstance, which was beyond control of the other plaintiff to produce P.W. 1 (the other plaintiff) in the witness box on 30.3.2005, the prayer seeking adjournment made by the petitioners should have been granted subject to award of costs
And the Court held that
this writ petition is hereby disposed of with a direction to the trial court to permit cross examination of P.W. 1 Ram Raj on the very next date when the suit is listed for hearing and thereafter to further proceed to dispose of the case in accordance with law.
