# Mishra and another v. State of

- **Citation:** (2007) 1 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-30
- **Case number:** Criminal Revision No. 8106 of 2003
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mishra-and-another-v-state-of-40727
- **Pages:** 3

## Headnote

Code of Civil Procedure-Order 17 rule IPower to grant adjournments-more than
five adjournments-court by exercising
inherent
power
can
grant
further
adjournment-on
exceptional
circumstances-provisions of order 17
rule I are not mandatory.

Held: Para 4

The provision of Order XVII Rule 1 C.P.C.
is procedural in nature and even though
the provision is couched in a negative
manner, it does not mean that under
exceptional circumstances, the court is
not
empowered
to
grant
an
adjournment. The Court has the inherent
power to grant an adjournment in
exceptional circumstances on sufficient
reasons being recorded. In the present
case, the revisional court had rightly
granted the adjournment upon payment
o cost of Rs.200/-. The Supreme Court in
Shikh Salim Haji Abdul Khayumsab v.
Kumar and others AIR 2006 SC 396 has
held that the provisions of Order 8 Rule 1
C.P.C. is not mandatory in nature and
that the Court has the inherent power to
grant further time to file a written
statement even after the expiry of 90
days. The same principle would squarely
apply in Order XVII Rule 1 C.P.C.
Consequently, I do not find any error in
1 All] Ugrasen Tiwari V. Narvadeshwar Tiwari
103
the impugned revisional order. The writ
petition fails and is dismissed.

AIR 2006 SC-396 relied on.

## Text

102 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
offence under section 304 Part II of the
Indian Penal Code.

8. So far as the case law of Km.
Madhurima Bhargawa and others Vs.
State of UP is concerned, it has been held
that offence under section 302, I.P.C. is
non-compoundable offence. It cannot be
compounded under the provision of
section 482, Cr.P.C.. The proceedings can
be quashed under Article 226 of the
Constitution, if parties are ready to
compromise. Therefore, the revisionist is
not liable to get any benefit from the
above two pronouncements.

9. So far as unreported case of
Criminal Revision No. 8106 of 2003
(Pankaj Mishra and another Vs. State of
UP and others) is concerned, it relates to
the family disputes under section 498-A,
323 and 506, IPC. It does not relate to the
heinous crime for the offence under
section 307, IPC.

10. Therefore, the trial court could
not
consider
the
offences
to
be
compoundable, which are not mentioned
under section 320 of the Criminal
Procedure Code.

11. In these circumstances, this
criminal revision has no force and is
liable to be dismissed. Consequently, this
revision is hereby dismissed.

12. It is very old case. In the
circumstances, the trial court is directed to
decide the same after giving opportunity
of hearing to both parties within three
months as far as possible and information
be sent by the trial court regarding
disposal of the case thereafter.

Revision Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.46982 of 2006

Ugrasen Tiwari

...Petitioner
Versus
Narvadeshwar Tiwari
 ...Respondent

Counsel for the Petitioner:
Sri R.C. Singh

Counsel for the Respondent:

Code of Civil Procedure-Order 17 rule IPower to grant adjournments-more than
five adjournments-court by exercising
inherent
power
can
grant
further
adjournment-on
exceptional
circumstances-provisions of order 17
rule I are not mandatory.

Held: Para 4

The provision of Order XVII Rule 1 C.P.C.
is procedural in nature and even though
the provision is couched in a negative
manner, it does not mean that under
exceptional circumstances, the court is
not
empowered
to
grant
an
adjournment. The Court has the inherent
power to grant an adjournment in
exceptional circumstances on sufficient
reasons being recorded. In the present
case, the revisional court had rightly
granted the adjournment upon payment
o cost of Rs.200/-. The Supreme Court in
Shikh Salim Haji Abdul Khayumsab v.
Kumar and others AIR 2006 SC 396 has
held that the provisions of Order 8 Rule 1
C.P.C. is not mandatory in nature and
that the Court has the inherent power to
grant further time to file a written
statement even after the expiry of 90
days. The same principle would squarely
apply in Order XVII Rule 1 C.P.C.
Consequently, I do not find any error in
1 All] Ugrasen Tiwari V. Narvadeshwar Tiwari
103
the impugned revisional order. The writ
petition fails and is dismissed.

AIR 2006 SC-396 relied on.

(Delivered by Hon'bleTarun Agarwala, J.)

1. The plaintiff filed a suit for the
cancellation of a decree in Suit no.326 of
1997. It transpires that the plaintiff sought
repeated adjournments and, eventually by
an order dated 4.10.2004, the trial court
rejected the adjournment application on
the ground that continuous adjournment
on five occasions was sought and
therefore, no further adjournment would
be allowed. An application for the recall
of the order was also rejected by an order
dated
3.3.2005.
Consequently,
the
plaintiff filed a revision which was
allowed and the order dated 4.10.2004
and 3.3.2005 was set-aside on payment of
cost of Rs.200/-. The defendant, being
aggrieved by the order of the revisional
court has filed the present writ petition.

Heard Sri R.C. Singh, the learned
counsel for the petitioner.

2. The learned counsel for the
petitioner drew the attention of the Court
to the provisions of Order XVII Rule 1
C.P.C., as amended by Act No.46 of
1999, which reads 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 of the suit.
(2) Cost 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 fit];

Provided that-
(a) when the hearing of the suit has
commenced, it shall be continued
from day today until all the witnesses
in attendance have been examined,
unless the Court finds that, for the
exceptional reason 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 the 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
crossexamination of the witness, as the
104 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
case may be, by the party or his
pleader not present or not ready as
forwarded.

3. Learned counsel for the petitioner
further submitted that the proviso clearly
indicates that no adjournment shall be
granted more than three times to a party
during the hearing of a suit and submitted
that the word "shall", as indicated in the
proviso,
clearly
indicates,
that
the
provision was mandatory and therefore it
was no longer open to the revisional court
to grant further adjournment, especially,
when adjournment on three previous
occasions had already been taken. The
learned counsel, consequently submitted,
that the order of the revisional court was
wholly illegal and without jurisdiction
and against the teeth of the mandatory
provision provided under Order XVII
Rule 1 C.P.C.

4. In the opinion of the Court, the
submission of the learned counsel for the
petitioner is bereft of merit. The provision
of Order XVII Rule 1 C.P.C. is procedural
in nature and even though the provision is
couched in a negative manner, it does not
mean
that
under
exceptional
circumstances,
the
court
is
not
empowered to grant an adjournment. The
Court has the inherent power to grant an
adjournment in exceptional circumstances
on sufficient reasons being recorded. In
the present case, the revisional court had
rightly granted the adjournment upon
payment o cost of Rs.200/-. The Supreme
Court in Shikh Salim Haji Abdul
Khayumsab v. Kumar and others AIR
2006 SC 396 has held that the provisions
of Order 8 Rule 1 C.P.C. is not mandatory
in nature and that the Court has the
inherent power to grant further time to file
a written statement even after the expiry
of 90 days. The same principle would
squarely apply in Order XVII Rule 1
C.P.C. Consequently, I do not find any
error in the impugned revisional order.
The writ petition fails and is dismissed.

Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 11207 of 1999

U.P. State Road Transport Corporation,
Jhansi

...Petitioner
Versus
Smt. Meena Kumari Dixit and another

...Respondents

Counsel for the Petitioner:
Sri Vivek Saran
Sri Rahul Anand Gaur

Counsel for the Respondents:
Sri D.N. Dubey
S.C.

Industrial Dispute Act, 1947-Section 11A-Power of Labour Court-interference
with-punishment of dismissal-awarded
on the ground of serious misconduct-not
open for Labour court or the Tribunal to
interfere with such discretion exercised
by the employer-not justified.

Held: Para 17 & 18

In the case in hand the duty of the
workman concerned was to protect the
revenue of the Corporation by checking
that no passenger is traveling in the bus
without ticket and to issue tickets by
collecting fair from the person traveling
in the bus without ticket. He admittedly
failed in his duty when out of 50
passengers, 24 were found traveling
without ticket. The workman-conductor