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IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 534 OF 2014

1. Mr. Sainath Amonkar,

s/o Shri. Ravindra K. Amonkar,
Aged 35 years, Service.
R/o H. No. 412, Near Sarita bar,
Shantinagar, New Vaddem.

2. Mrs. Pallavi Amonkar

w/o Sainath Amonkar,
Aged 33 years, House Wife.
R/o H. No. 412, Near Sarita bar,
Shantinagar, New Vaddem. …...... Petitioners.

Versus

1. Mr. Ravindra K. Amonkar,

Son of Late Shri Krishna
Amonkar,
Aged 67 years, Retired,
R/o H. No. 412, Near Sarita bar,
Shantinagar, New Vaddem.

2. Mrs. Rajshree R. Amonkar,

Wife of Shri R. Amonkar,
Aged 55 years, Housewife,
R/o H. No. 412, Near Sarita bar,
Shantinagar, New Vaddem.

3. Mr. Pramod Amonkar,

S/o. Shri Ravindra K. Amonkar,
Aged 32 years, Service.
R/o H. No. 412, Near Sarita bar,
Shantinagar, New Vaddem. …..... Respondents.

Mr. Pranay A. kamat, Advocate for the petitioners.

Mr. R. G. Ramani, Advocate for the respondents.

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CORAM : U. V. BAKRE, J.

DATE : 11th September, 2014

O R A L J U D G M E N T:

Heard learned Counsel for the respective parties.

2. Rule. Rule made returnable and by consent heard forthwith.

3. By this petition, the petitioners have taken exception to the

orders dated 03/05/2014 and 07/05/2014 passed by the learned

Civil Judge, Senior Division, Vasco Da Gama, Goa (Trial Judge, for

short) whereby the adjournment was rejected; the defence evidence

was closed and prayer for reopening the evidence and for leave to

lead evidence in defence was rejected.

4. The respondents no. 1 and 2 (plaintiffs) have filed the said

Regular Civil Suit no. 17 of 2013 praying therein for eviction of the

petitioners and respondent no.3 (defendants) from the suit house

and also for mesne profits and permanent injunction to restrain the

defendants from interfering with the life of the plaintiffs as well as

the house of the plaintiffs. It is the contention of the plaintiffs that

the house belongs to them and the defendants have no right and

that the defendants have been harassing them.

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5. The defendants filed their written statement. Issues have

been framed as per the rival contentions of the parties and the

plaintiffs have completed their evidence. Even the defendants have

partly completed their evidence and defendants no. 1 and 2 have

examined themselves. On 21/04/2014, the date was given for filing

affidavit-in-evidence of the third witness and accordingly the same

was filed on that day. Date for cross-examination of DW 3 was

fixed by the Trial Judge on 23/04/2014 on which date the application

for adjournment was filed by the defendants alleging that the

witness was unable to appear in the Court as he was out of station

for his sister's daughter's wedding and would be back on

28/04/2014. As such, the matter was fixed on 28/04/2014. Again,

on 28/04/2014, it was stated by the defendants that the witness

would return after three days and as such the matter was fixed on

03/05/2014. However, on 03/05/2014 also the said witness was

absent and adjournment was sought on the same ground that the

witness was out of station for his sister's daughter's wedding. The

plaintiffs objected to the adjournment and prayed for closure of the

defence evidence. By impugned order dated 03/05/2014, this

application for adjournment was dismissed by the Trial Judge, mainly

on the ground that the defendants did not produce any material to

corroborate the grounds for adjournment stated in the application.

Immediately on 06/05/2014 the defendants filed application for

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reopening the evidence and for leave to lead defence evidence,

alleging that the non-appearance of the witness was not deliberate.

This application was heard on 07/05/2014 and was dismissed on

the same day for the reasons stated therein.

6. Mr. Kamat, learned Counsel appearing on behalf of the

defendants submits that on 28/04/2014 it was the second hearing

and adjournments were sought for recording cross-examination of

DW3 only thrice i.e. on 23/04/2014; 28/04/2014 and 03/05/2014.

He further submitted that appropriate genuine reasons were given

in the applications for adjournment. He relied upon the judgment of

the High Court of Punjab and Haryana in the case of “Gurvinder

Singh V/s. Government of India and others” [CDJ 2011 PHC 115]. He

submitted that in the interest of justice, the impugned order which

is harsh and prejudicial to the defendants should be set aside so

that the defendants get an opportunity to lead their evidence and

prove their defence.

7. On the other hand, Mr. Ramani, learned Counsel appearing on

behalf of the plaintiffs submitted that the suit has been filed since

the defendants have been harassing the plaintiffs in all manner

possible. He submitted that the reasons mentioned for

adjournments were not sufficient and adjournments were sought

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thrice on the same ground. He pointed out that the plaintiffs are

the parents of the defendants no. 1 and 3, and thus are being

harassed by their own children. He further submitted that

considering the nature of the suit, the Trial Court rightly dismissed

the last adjournment application and rightly closed the defence

evidence.

8. I have perused the material on record and considered the

submissions of the learned Counsel for the parties.

9. It is seen that the said Regular Civil Suit no. 17 of 2013 cannot

be termed as an old suit, being instituted only in the last year. In

any case, the plaintiffs had completed their evidence and the

defendants had also examined the defendants no. 1 and 2 and filed

the affidavit-in-evidence of third witness. On the dates fixed for

cross-examination of DW3, i.e. on 23/04/2014; 28/04/2014 and

03/05/2014, unfortunately DW3 could not attend the Court.

However appropriate applications for adjournment were filed. The

ground for adjournment was that the witness had gone out of

station for his sister's daughter's wedding. Return of the witness

from the place where he had gone for wedding was not in the hands

of the defendants. However the learned Trial Court, on the ground

that the defendants did not produce any material to corroborate the
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grounds stated in the application, dismissed the said last

application dated 03/05/2014. In my view, the said dismissal order

is too harsh, since it has taken away the opportunity of the

defendants to defend their case, by leading their evidence. In fact,

the learned Trial Court could have given a next date by specifically

warning that the same shall be the last opportunity to the

defendants to complete the evidence of DW3 and could have

awarded costs for the inconvenience caused to the plaintiffs. It is

pertinent to note that immediately on 06/05/2014 the defendants

had filed the application for reopening the defendants' evidence and

for leave to lead evidence by alleging that non-appearance of DW3

on 03/05/2014 was not deliberate and that they were not interested

in delaying the matter. In spite of this, the said application was

also dismissed. Merely because the plaintiffs are Senior Citizens

and have filed the suit on the ground that the defendants were

harassing them, it does not mean that considering the said nature

of the case, the adjournment cannot be granted.

10. In the case of “Gurvinder Singh“(supra), the learned Single

Judge of Punjab and Haryana High Court has held thus :

“It is correct that proviso to Order 17 Rules 1 CPC lays down

that not more than three adjournments shall be granted to a

party for its evidence. However, the said provision being rule
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of procedure has to be held to be directory and not

mandatory. This provision has to be applied with some

flexibility and not with rigidity or inflexibility. Rules of

procedure are handmaids of justice and are meant to advance

the ends of justice and not to thwart or obstruct the same.

Even the Hon'ble Supreme Court in paragraph 32 of the

judgment in the case of Salem Advocate bar Association's

case (supra) observed that in the facts and circumstances of a

given case, more than three adjournment can be granted for

evidence of a party by imposing punitive cost. I am of the

considered opinion that in the instant case, closure of

evidence of plaintiff by court order by granting three

opportunities only has proved to be very harsh for the plaintiff

resulting in dismissal of his suit. It has resulted in

miscarriage of justice and has caused grave injustice to the

plaintiff. In my considered opinion, the ends of justice would

be met if the plaintiff is granted two more opportunities for

his evidence at own responsibility on payment of heavy

costs.”

11. Thus, the provision of Order 17 Rule 1 of C.P.C. laying down

that not more than three adjournments shall be granted to a party

for its evidence is simply a rule of procedure and, therefore, is not

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mandatory but directory. Considering that sufficient grounds for

adjournment were stated by the defendants, the learned Trial Judge

ought to have granted adjournment and should not have taken

harsh decision of closing the defence evidence. Inconvenience

caused to the plaintiffs could have been made good by awarding

appropriate costs. In this regard, however, Mr. Kamat, learned

Counsel for the petitioners submits that the petitioner no.1 is only a

driver by profession earning about ` 6,000/- per month.

12. Considering all the aspects of the matter, I am of the view

that impugned orders are arbitrary and against the principles of

natural justice and hence liable to be quashed and set aside and the

defendants should be permitted to complete the evidence of DW3

and also lead further defence evidence, if any, subject to costs to be

awarded to the plaintiffs. Mr. Kamat, learned Counsel makes it clear

that the defendants would be examining two more witnesses after

completion of evidence of DW3.

13. The Petition is allowed.

(a) The impugned Orders dated 03/05/2014 and 07/05/2014

are quashed and set aside.

(b) The defendants shall be permitted to lead the evidence of

DW3 and also further defence evidence, subject to

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defendants' depositing costs of ` 1,000/- (` One Thousand

Only) before the Trial Judge as condition precedent to be paid

to the plaintiffs.

(c) It is made clear that the defendants shall not seek

adjournment, unless there are genuine reasons.

(d) Rule is made absolute in the above terms.

14. Petition stands disposed of accordingly.

U.V. BAKRE, J.

MV