# Heera Lal Chhabra v. Nawal Kishore Agarwal

- **Citation:** (2023) 6 ILRA 298
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-10
- **Case number:** Matters Under Article 227 No. 4925 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/heera-lal-chhabra-v-nawal-kishore-agarwal-50459
- **Pages:** 6

## Headnote

(A) Constitution of India - Article 227 -
The Code of Civil Procedure, 1908 - Order
XVII Rule 1 - Court may grant time and
adjourn hearing , Order XVII Rule 2 -
engagement of pleader of party in another
Court
would
not
be
ground
for
adjournment - No litigant has a right to
abuse the procedure provided in the CPC.
(Para - 6,7,12)

(B) Words and Phrases - The Code of Civil
Procedure, 1908 - proviso to Order XVII
Rule 1 CPC - `justifiable cause' - 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.
(Para -12)

Plaintiff-respondent filed SCC Suit - date fixed -
defendant counsel was busy in some other court
, unable to appear - Court passed ex-parte order
-- filed recall application - rejected - Petitionerdefendant preferred SCC Revision - dismissed -
approximately 22 adjournments sought by
defendant-petitioner . (Para - 1,9,11)

HELD:-Adjournment to be granted on bonafide
reasons and unavoidable circumstances for
limited occasion not for many occasion .
Absence of counsel or his engagement in other
Court cannot be ground for adjournment
coupled with fact that several adjournments
were
earlier
sought.
No
interference
in
impugned orders. (Para - 15,16)

Petition dismissed. (E-7)

List of Cases cited:

## Text

298 INDIAN LAW REPORTS ALLAHABAD SERIES
material was brought on record before the
District Judge, Aligarh which may justify
the passing of the order dated 11.4.2023.
Thus, the order dated 11.4.2023 passed by
the District Judge, Aligarh in transfer
application being contrary to law, is set
aside. Transfer Application No. 116 of
2023 filed by the respondent no.1, namely
Akhilesh Pratap Singh is rejected. The
present petition is allowed.

24. No order as to cost.
----------
(2023) 6 ILRA 298
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 4925 of 2023

Heera Lal Chhabra ...Petitioner
Versus
Nawal Kishore Agarwal ...Respondent

Counsel for the Petitioner:
Sri Ashish Agrawal

Counsel for the Respondent:
Sri Shikhar Tripathi, Sri Shrey Sharma

(A) Constitution of India - Article 227 -
The Code of Civil Procedure, 1908 - Order
XVII Rule 1 - Court may grant time and
adjourn hearing , Order XVII Rule 2 -
engagement of pleader of party in another
Court
would
not
be
ground
for
adjournment - No litigant has a right to
abuse the procedure provided in the CPC.
(Para - 6,7,12)

(B) Words and Phrases - The Code of Civil
Procedure, 1908 - proviso to Order XVII
Rule 1 CPC - `justifiable cause' - 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.
(Para -12)

Plaintiff-respondent filed SCC Suit - date fixed -
defendant counsel was busy in some other court
, unable to appear - Court passed ex-parte order
-- filed recall application - rejected - Petitionerdefendant preferred SCC Revision - dismissed -
approximately 22 adjournments sought by
defendant-petitioner . (Para - 1,9,11)

HELD:-Adjournment to be granted on bonafide
reasons and unavoidable circumstances for
limited occasion not for many occasion .
Absence of counsel or his engagement in other
Court cannot be ground for adjournment
coupled with fact that several adjournments
were
earlier
sought.
No
interference
in
impugned orders. (Para - 15,16)

Petition dismissed. (E-7)

List of Cases cited:

1. The Secy., Dept. of Horticulture, Chandigarh
& Anr. Vs Raghu Raj , JT 2008 (11) SC 397

2. Gayathri Vs M. Girish , 2016 0 SC 587

3. Shiv Cotex Vs Tirgum Autoplast Ltd. , 2011
(9) SCC 678

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Ashish Agrawal, learned
counsel for the petitioner and Sri Shrey
Sharma, learned counsel for the respondent.

2. Learned counsel for the petitioner
submitted that earlier plaintiff-respondent
6 All. Heera Lal Chhabra Vs. Nawal Kishore Agarwal
299
has filed SCC Suit No. 48 of 2014 in which
date of 5.3.2022 has been fixed, but learned
counsel for the defendant was busy in some
other Court, therefore, he could not appear
before the Court. On the very same day,
Court has passed order to proceed ex-parte.
Against that he has filed recall application
on 22.3.2022, which was rejected vide
order dated 28.7.2022. Against the said
order, petitioner-defendant has preferred
SCC Revision No. 101 of 2022, which was
also dismissed vide order dated 12.4.2022.

3. Learned counsel for the petitioner
further submitted that cause of non
appearance of leaned counsel for the
defendant is genuine as he is arguing before
the another Court. Further, in paragraph 39
of the petition, he undertakes that he would
appear each and every date before the
concerned
Court
without
taking
adjournment, therefore, order may be
quashed and opportunity may also be given
to accept the evidence of defence. He lastly
submitted that Hon'ble Apex Court has
discussed this aspect in the case of The
Secretary, Department of Horticulture,
Chandigarh and Anr. Vs. Raghu Raj
reported in JT 2008 (11) SC 397 and held
that even if there is default on the part of
advocate in not appearing at the time of
hearing, defendant-petitioner shall not
suffer injustice.

4. Sri Shrey Sharma, learned counsel
for the plaintiff-respondent has vehemently
opposed the submission and submitted that
now
the
hearing
is
concluded
and
tomorrow
is
the
date
fixed
for
pronouncement of judgment. He further
submitted
that
defendant-petitioner
is
habitual to abstain from hearing of the
matter. First time Court vide order dated
28.4.2015 has proceeded to decide ex-parte
against the defendant. The said order was
recalled vide order dated 19.5.2015. He
further submitted that again case was listed
on 8.1.2018, but defendant had filed
adjournment
application,
which
was
accepted by the trial Court with costs of Rs.
250/-. Thereafter, case was listed on
18.1.2018 and witnesses of both the parties
are present, but counsel for the defendant is
not present for cross examination and
accordingly,
opportunity
of
cross
examination of P.W.-1 has been closed.
The said order was recalled vide order
dated 21.2.2019. Case was again listed on
16.9.2019, Court has fixed the date
1.10.2019 for cross examination of P.W.-1.
On the next date date i.e. 19.10.2019, P.W.-
1 alongwith counsel for the plaintiff was
present, but no one has appeared on behalf
of
the
defendant
and
again
cross
examination of P.W.-1 has been closed.
Further, on 14.11.2019, 10.1.2022 &
5.3.2022, learned counsel for the defendant
was not present. He lastly submitted that
suit was filed in the year 2014 and till
2022, approximately 22 adjournments have
been sought by the defendant-petitioner. In
support of his contention, he has placed
reliance upon the judgement of Apex Court
in the cases of Gayathri vs. M. Girish
reported in 2016 0 SC 587 & Shiv Cotex
vs. Tirgum Autoplast Ltd. reported in 2011
(9) SCC 678.

5. I have considered the rival
submission of learned counsel for the
parties and perused the record, order sheets,
impugned order and Order XVII Rule 1 of
CPC. From perusal of the order sheet, facts
so argued by the learned counsel for the
respondent
is
absolutely
correct.
Undisputedly, defendant-petitioner sought
adjournment after adjournment in so many
occasions and trial Court has granted
several
opportunity,
but
even
after
defendant has misused the process of law
300 INDIAN LAW REPORTS ALLAHABAD SERIES
either by seeking adjournment or being
absent from the hearing of the matter.

6. Order XVII Rule 1 of CPC deals
with
adjournment,
which
is
quoted
hereinbelow:-

"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.

(2) Costs of adjournment - in
every such case the court shall fix a day for
the further hearing of the suit, and shall
make such orders as to costs occasioned by
the adjournment or such higher costs as the
court deems fits:
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.

HIGH COURT AMENDMENTS

Allahabad.- Add the following
further proviso:

'Provided further that no such
adjournment shall be granted for the
purpose of calling a witness not previously
summoned or named, nor shall any
adjournment be utilised by any party for
such purpose, unless the Judge has made
an order in writing under the proviso to
Order -XVI, Rule 1." (24.7.1926)."

7. From perusal of the same, it is very
much clear that only three adjournments
shall be granted to a party during the
hearing of the suit and Order XVII Rule 2
further provides that engagement of pleader
of party in another Court would not be
ground for adjournment and here the case is
entirely
different
it
is
case
of
22
adjournments have been sought and even
present petition has been filed for quashing
of the order on the ground that counsel for
petitioner-defendant was busy in other
Court due to which, he could not appear,
which is in teeth of provision of Order
XVII of Rule 1 & 2 CPC.

8. I have perused the judgment of The
Secretary, Department of Horticulture,
Chandigarh (Supra) relied by the learned
6 All. Heera Lal Chhabra Vs. Nawal Kishore Agarwal
301
counsel
for
the
petitioner.
Relevant
paragraph of the said judgment is quoted
hereinbelow:-

"34. From the case law referred
to above, it is clear that this Court has
always insisted advocates to appear and
argue the case as and when it is called out
for hearing. Failure to do so would be
unfair to the client and discourteous to the
Court
and
must
be
severely
discountenanced. At the same time, the
Court has also emphasized doing justice to
the cause wherein it is appropriate that
both the parties are present before the
Court and they are heard. It has been noted
by the Court that once a party engages a
counsel, he thinks that his advocate will
appear when the case will be taken up for
hearing and the Court calls upon the
counsel to make submissions. It is keeping
in view these principles that the Court does
not proceed to hear the matter in absence
of the counsel.

40. On the facts and in the
circumstances in their totality, in our
opinion, even though the learned counsel
for the appellant was not present, it would
have been appropriate, had the High Court
granted an opportunity to the learned
counsel for the appellant to make his
submissions by adjourning the matter."

9. From perusal of the judgment of
above paragraph, it is clear that even in
case of default on the part of lawyer,
opportunity has to be granted to the
parties, but here the case is different. Not
only one, but 22 adjournments had been
sought either by defendant or his counsel.
Therefore, as per spirit of the judgment,
in case counsel of any party is absent on
any occasion and opportunity has to be
provided, but here this judgment would
not
rescue
the
case
of
petitionerdefendant considering his habitual default
on different dates.

10. I have also perused the judgment
of Apex Court in the case of Gayathri
(supra) relied by the learned counsel for
the respondent. Relevant paragraph of the
said judgment is herebelow:-

"10. In the case at hand, as we
have
stated
hereinbefore,
the
examination-in-chief continued for long
and the matter was adjourned seven
times. The defendant sought adjournment
after adjournment for cross-examination
on some pretext or the other which are
really not entertainable in law. But the
trial court eventually granted permission
subject to payment of costs. Regardless of
the allowance extended, the defendant
stood embedded on his adamantine
platform and prayed for adjournment as
if it was his right to seek adjournment on
any ground whatsoever and on any
circumstance. The non-concern of the
petitioner-defendant shown towards the
proceedings of the court is absolutely
manifest. The disregard shown to the
plaintiff's age is also visible from the
marathon of interlocutory applications
filed. A counsel appearing for a litigant
has to have institutional responsibility.
The
Code
of
Civil
Procedure
so
command. Applications are not to be filed
on the grounds which we have referred to
hereinabove and that too in such a
brazen and obtrusive manner. It is wholly
reprehensible.
The
law
does
not
countenance
it
and,
if
we
permit
ourselves to say so, the professional
ethics decries such practice. It is because
such acts are against the majesty of law."

11. In the judgment referred in above,
in case of adjournment on seven times,
302 INDIAN LAW REPORTS ALLAHABAD SERIES
Court has depreciated the conduct of
counsel and not inclined to grant any relief.
In the present case, approximately 22
adjournments have been sought by the
defendant-petitioner, therefore, such acts
are wholly reprehensible and against the
majesty of law. Petitioner is not entitled for
any sympathy from the Court.

12. This issue was again before the
Apex Court in the case of Shiv Cotex
(Supra) and while considering the issue of
adjournment, Court has also considered the
absence of counsel. Relevant paragraph of
the said judgment is quoted hereinbelow:-

"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 that civil
disputes drag on and on. The misplaced
sympathy and indulgence by the appellate
and revisional courts compound the malady
further. The case in hand is a case of such
misplaced sympathy. It is high time that
courts become sensitive to delays in justice
delivery
system
and
realize
that
adjournments do dent the efficacy of
judicial process and if this menace is not
controlled adequately, 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."

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 cooperate with the court
in ensuring the effective work on the date of
hearing for which the matter has been
6 All. Sri Firoz Uddin & Ors. Vs. Sri Anwar Uddin
303
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."

13. In this matter, Apex Court has highly
depreciated
the
tendency
of
grant
of
adjounrment and also taken firm view that
change of lawyer, continuance of illness of
lawyer or similar grounds will not justify more
than three adjournments to a party during the
hearing of the suit. In the present case, number
of adjournments are 22, therefore, present
dispute is squarely covered with the ratio of
law laid down by the Apex Court and
petitioner is not entitled for any relief.

14. From perusal of the judgments cited
hereinavove as well as Order XVII Rule 1 & 2
of CPC, it is apparently clear that intention of
legislation is to complete the hearing of the
suit at the earliest for which number of
adjournments have been confined to three
times only and further rigorous conditions
have been imposed for grant of adjournment,
which also negates engagement of counsel in
another Court.

15. In light of interpretation made by
the Apex Court, this Court is also of the
view that adjournment has to be granted on
bonafide
reasons
and
unavoidable
circumstances for limited occasion not for
many occasion as the case is hear and
further
absence
of
counsel
or
his
engagement in other Court cannot be
ground for adjournment coupled with this
fact that several adjournments were earlier
sought.

16. In view of facts and circumstances
of the case as well as law discussed
hereinabove, no case is made out for
interference in the impugned orders. The
petition lacks merit and is, accordingly,
dismissed. No order as to costs.
----------
(2023) 6 ILRA 303
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 5213 of 2023

Sri Firoz Uddin & Ors. ...Petitioners
Versus
Sri Anwar Uddin ...Respondent

Counsel for the Petitioners:
Sri Jata Shanker Pandey

Counsel for the Respondent:
Sri Ravi Shanker Pathak

(A) Constitution of India - Article 227 -
The Code of Civil Procedure, 1908 - Order
VI Rule 17 - Amendment of pleadings -
courts should be liberal in granting the
prayer for amendment of pleadings unless
serious injustice or irreparable loss is
caused to the other side or on the ground
that the prayer for amendment was not a
bonafide one - Change of counsel cannot
be a ground for filing amendment.(Para -
12, 20)

(B) Word of phrases - "due diligence" -
determines
the
scope
of
a
party's