Practice and Procedure – Adjournment – Held, In the case at hand, it can indubitably be stated that the defendant-petitioner has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation – the virus of seeking adjournment has to be controlled – The saying of Gita “Awake! Arise! Oh Partha” is apt here to be stated for guidance of trial courts.
CIVIL APPELLATE JURISDICTION
(Dipak Misra) (Rohinton F. Nariman) JJ.
July 27, 2016
SPECIAL LEAVE PETITION (C) NO. OF 2016 (CC NO.14061 OF 2016)
GAYATHRI … Petitioner
M. GIRISH … Respondent
J U D G M E N T
Dipak Misra, J.
If a case ever exposed the maladroit efforts of a litigant to indulge in abuse of the process of Court, the present one is a resplendent example. The factual narration, to which we shall advert to immediately hereinafter, would limpidly show that the defendant-petitioner has endeavoured very hard to master the art of adjournment and on occasions having been successful become quite ambitious. And the ambition had no bounds; it could reach the Everestine heights or put it differently, could engulf the entire Pacific Ocean.
2. The factual expose’ as is evincible from the impugned orders, the respondent filed OS No.1712 of 2007 for recovery of possession and damages. The general power of attorney holder through which the plaintiff prosecuted the litigation was examined on 13.1.2009 in chief and it was completed on 12.9.2012. It is worthy to note here that for examination-in-chief, the witness was constrained to come to court on seven occasions. Thereafter, the defendant filed an interlocutory application under Order XVII Rules 1 and 2 of the Code of Civil Procedure seeking adjournment of the matter for one month on the ground that the mother of the senior counsel was unwell. The matter stood adjourned. As the facts would further unfold, the defendant filed I.A. No.9 under the very same provision seeking adjournment on the ground that the counsel engaged by him was not keeping well. I.A. No.10 was filed seeking adjournment for one month on the ground that the senior counsel was out of station. I.A. No.11 was filed on the plea that the defendant was unable to get certified copies of ‘P’ series documents. The fifth application, i.e., IA No.12 was filed on the similar ground. The incurable habit continued and I.A. no.13 was filed seeking adjournment on the ground that the counsel was busy in the marriage ceremony of a relative. And, the matter stood adjourned. The proceedings in the suit got arrested as if “time” had been arrested. Despite filing of so many interlocutory applications, the defendant remained indefatigable with obsessed consistency and again filed I.A. No.14 on the ground that certified copies were required by her. Thereafter, I.A. No.15 was preferred to recall PW-1 for cross-examination on the foundation that on the previous occasion, the senior counsel who was engaged by the defendant was busy in some other court. The learned trial Judge, hoping that all his owe would be over and the disease of adjournment affecting the marrows of litigation would be kept at bay, allowed the said application on 27.5.2013 subject to payment of costs of Rs.800/-.
3. We must state here that the learned trial Judge was in total illusion, for the defendant-petitioner had some other design in mind. We are prompted to say so, had the story ended there, possibly the trial court’s assessment of phenomenon would have been correct and the matter would not have travelled to this Court. But it was not to be so. In spite of the court granting adjournment subject to payment of costs, the defendant chose not to cross-examine the witness and continued filing interlocutory applications forming the subject matters of I.A. Nos.16, 17, 19, 20 and 21 and the ordeal of the plaintiff, a septuagenarian, continued. The difficulties faced by an old man when he is compelled to come to Court so many times to give evidence can be well imagined. In spite of this, the trial court adjourned the matter to 3.10.2015. Notwithstanding the unwarranted indulgence shown, the defendant remained adamant and thought it wise not to participate in the suit. On 3.10.2015, though the witness was present, neither the defendant nor her counsel turned up. The trial Court posted the suit for defendant’s evidence and adjourned the matter. After the aforesaid order came to be passed, on 22.2.2016 IA No.22 of 2016 was filed seeking further cross-examination of the plaintiff. The said prayer was declined by the trial court with costs of Rs.1,000/-.
4. Grieved by the aforesaid order passed by the learned trial Judge, the defendant preferred, W.P. No.36022 of 2016 (GM-CPC) before the High Court of Karnataka at Bangalore and the learned Single Judge, vide order dated 14.07.2016 recorded the facts, placed reliance on
K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275
and held as follows :-
“6. The impugned order is a narration of classic case of abuse of process of law. Trial Court has rejected the said application by narrating in detail the conduct of petitioner – defendant. Hence, there is no error in the order passed by the Trial Court.”
Eventually, the High Court dismissed the writ petition without imposition of any costs.
5. We have heard, Mr. Ashwin K. Kotemath, learned counsel for the petitioner. We have narrated the facts in great detail so that what we have said in the beginning with regard to the abuse of the process of court gets fortified.
6. In K.K. Velusamy (supra), while dealing with the power of the Court under Order XVIII Rule 17, this Court held that:-
“9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide