# Sheetla Prasad v. D.J., Gonda & Ors

- **Citation:** (2020) 9 ILRA 284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-11
- **Case number:** Misc Single No. 1981 of 2015
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheetla-prasad-v-d-j-gonda-ors-45936
- **Pages:** 5

## Headnote

U.N. Misra, Indrajeet Shukla

Suit for cancellation of sale deed and
permanent injunction against PetitionerApplication
for
adjournment rejectedopportunity
to
cross
examine
PW-2
closed-four times opportunities grantedtwice adjournment granted with cost-last
opportunity
given-again
adjournment
sought-rightly rejected.

Writ Petition dismissed. (E-9)

Cases referred:-

## Text

284 INDIAN LAW REPORTS ALLAHABAD SERIES
not say so that it is without approval, their
possession is one held under colour of title on
the basis of a Gaon Sabha patta. They are not
rank trespassers. Even if they were rank
trespassers but in settled possession, the
defendants who have neither title or possession,
have no business to go about interfering with
the plaintiffs' possession over the suit property
by asking them not to construct a boundary wall
around it or raise any constructions. The Lower
Appellate Court, thus, on the ground of
possession traceable to the patta found for the
plaintiffs, if not on the basis of title, has rightly
decreed the Suit against the defendants. The
substantial question of law formulated at the
time of admission of this Appeal is really not
involved. The defendants have not, during the
course of hearing, brought to the notice of the
Court any other substantial question of law
requiring formulation. This Court too has not
noticed any other substantial question of law
that may be required to be formulated and the
parties heard on it. After hearing the plaintiffs,
who are respondents to this Appeal, at length,
this Court finds that this Appeal deserves to be
determined under sub-Section (5) of Section
100 CPC for the reasons hereinbefore
elaborately indicated.

40. This Appeal has remained pending
for the past 32 years and during this time,
the plaintiffs have suffered a stay of
operation of the decree passed in their
favour by the Lower Appellate Court.
During this long period of time, the
younger of the two plaintiffs has passed
away. Now, the plaintiffs have shown that
no substantial question of law is really
involved. They would, therefore, be entitled
to their costs from the defendants.

41. In the result, this Appeal fails and
is dismissed. The plaintiffs shall be entitled
to receive in costs a sum of Rs.10,000/-
from the defendants.

42. Let the Lower Court Record be
sent down at once, along with a copy of
this judgment to the Trial Court.
----------
(2020)09ILR A284
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.02.2020

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc Single No. 1981 of 2015

Sheetla Prasad ...Petitioner
Versus
D.J., Gonda & Ors. ...Respondents

Counsel for the Petitioner:
Arvind Pratap Singh

Counsel for the Respondents:
U.N. Misra, Indrajeet Shukla

Suit for cancellation of sale deed and
permanent injunction against PetitionerApplication
for
adjournment rejectedopportunity
to
cross
examine
PW-2
closed-four times opportunities grantedtwice adjournment granted with cost-last
opportunity
given-again
adjournment
sought-rightly rejected.

Writ Petition dismissed. (E-9)

Cases referred:-

1. Bashir Ahmed Vs Mehmood Hussain Shah,
(1995) 3 SCC 529

2. Shiv Cotex Vs Tirgun Auto Plast (P) Ltd.,
(2011) 9 SCC 678

3.B.V. Smitha Rani Vs M.K. Girish, (2009) 17 SCC 660

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. The undisputed facts of the case
are: Smt Patiraji, the third respondent filed
9 All. Sheetla Prasad Vs. D.J., Gonda & Ors.
285
a Regular Suit No. 117 of 1982, Patiraji
versus Sheetla Prasad in the Court of
Additional Civil Judge (Jr. Div), Court No.
8, Gonda for cancellation of sale deed and
for permanent injunction against the
petitioner restraining him from interfering
with the peaceful possession of the third
respondent over the property in dispute. In
the said suit the petitioner filed his written
statement. In support of her case, the third
respondent examined herself as PW 1.
06.02.2015 was the date fixed for cross
examination of the third respondent but
instead of cross examining her, the counsel
for the petitioner moved an application for
adjournment. The application is extracted
below:-

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Jheku~ th]

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izfroknhx.k i{k }kjk ekuuh; mPp U;k;ky;
'kk[kk y[kuÅ esa fjV izLrqr dj j[kk gSA ftlesa
v/khuLFk U;k;ky; dh dk;Zokgh LFkfxr djus gsrq
LFkxu izkFkZuk i= izLrqr dj j[kk gSA ijUrq
ekuuh; mPp U;k;ky; esa gM+rky fiNys ,d ekg
iwoZ ls gM+rky py jgh gSA ftl dkj.k lquokbZ
ugha gks ik jgh gSA U;k;fgr esa mDr eqdnesa esa
vkt ekSdk pkgrk gSA

vr% fuosnu gS fd U;k;fgr esa ekSdk
iznku djsaA

izkFkhZ]
 fnukad% 06&02&2015

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 1⁄4'khryk izlkn vkfn1⁄2

 }kjk vf/koDrkß

2. The trial Court rejected the
application for adjournment, closed the
opportunity of the petitioner to cross
examine the third respondent and fixed a
date for cross examination of PW 2. The
trial Court passed the following order:-

"Case called out. Learned counsel
from plaintiff side present no one from def.
side file be produced after lunch.

File produced after lunch case
called. Learned counsel from plaintiff side
is present. an adjournment has been moved
from the defendant side at 3:00 PM on the
ground that relating to the present suit a
writ petition for staying the proceeding of
lower court is pending before Hon'ble High
Court on which due to strike no hearing
could have been made & hence another
date be fixed for cross examination of
P.W.1
and
for
adjourning
today's
proceedings the O.P. has endorsed on the
applicant as strongly opposed.

Heard & perused the records
from the perusal of records. It is clears that
on 22.05.2014 the def. application for
staying the proceedings of this Court was
rejected by the Court & there by the
defendant opp. for cross examining P.W.1.
Automatically closed/ ended and there by
defendant moved a recall application
258C2 which was allowed by this Court
giving him an opportunity to cross examine
P.W.1. Thereafter two days have been
passed and the defendant in both there date
respectively 16.12.14 & 01.01.15 gave the
adjournment
application
which
were
allowed by court on Cost. On 01.01.2015
the Court has given last opp. to cross
examine P.W.1 today again the defendant
after
lunch
has
moved
adjournment
applicant. The def. has till date not
complied with order for payment of cost
also this shows that def. is interested in
delaying the matter keeping into account
286 INDIAN LAW REPORTS ALLAHABAD SERIES
the aforesaid facts & circumstances, the
adjournment application is rejected & def.
opportunity to cross examine P.W.1 is
closed file is fixed on 18.02.15 for cross
examination of P.W.2."

3. The revision bearing Civil Revision
No. 48 of 2015, preferred by the petitioner
against the said order has been dismissed
by the District Judge by an order dated
06.02.2015. Both the said orders are under
challenge in the present petition.

4. Sri Arvind Pratap Singh, learned
counsel for the petitioner has submitted that
in the interest of justice, one last
opportunity be provided to the petitioner to
cross examine PW 1. He submits that in
case such an opportunity is not given, the
petitioner would suffer irreparable loss. In
support of his case the learned counsel for
the petitioner has placed reliance upon the
case of Bashir Ahmed v. Mehmood Hussain
Shah, (1995) 3 SCC 529.

5. Sri Faiz Alam Khan holding brief
of Sri Inderjeet Shukla, learned counsel for
the third respondent, on the other hand has
supported the order impugned and has
submitted that the petitioner was adopting
dilatory tactics and as such the trial Court
rightly closed the opportunity of cross
examination.

6. After hearing the learned counsel
for the parties and on perusal of record this
Court is convinced that the trial Court has
committed no wrong in rejecting the
application for adjournment and in closing
the opportunity of the petitioner to cross
examine the third respondent.

7. As is evident from the impugned
order, 22.05.2014 was the date fixed for
cross examination of the third respondent.
On the said date, instead of cross
examining
the
third
respondent
an
application for staying the proceedings of
the suit was moved by the petitioner. The
said application was rejected by the trial
Court and the opportunity of the petitioner
to cross examine the third respondent was
closed. The petitioner, thereafter, moved an
application for recall of the order dated
22.05.2014. The said application was
allowed and the petitioner was given one
more opportunity to cross examine the third
respondent. On the next two dates i.e.
16.12.2014 and 01.01.2015 the petitioner's
counsel did not cross examine the third
respondent and on both the dates sought
adjournment
which
was
allowed
on
payment of cost. On 01.01.2015 the matter
was adjourned and the petitioner was given
a last opportunity to cross examine the third
respondent on 06.02.2015. The petitioner,
instead of availing the said opportunity,
again
moved
an
application
for
adjournment.

8. A perusal of the application for
adjournment would show that absolutely
vague averments have been made therein.
The number of the writ petition alleged to
have been filed by the petitioner, the date
fixed in the said writ petition, the order
against which the said writ petition is
alleged to have been filed were all
conspicuously missing. The petitioner was
unable to show any cause, what to say,
sufficient cause for adjournment. The
judgment of Bashir Ahmed (supra) on
which reliance has been placed by the
counsel for the petitioner is of no avail to
the petitioner as in the said case, a day
earlier to the date fixed for cross
examination of the plaintiff witness, the
counsel for the defendant had taken ill but
the court refused to adjourn the matter. In
the said circumstances, the Apex Court set
9 All. Sheetla Prasad Vs. D.J., Gonda & Ors.
287
aside the said order on the ground that it
was not possible for a lawyer engaged a
day earlier to go through the record and
cross examine the defendant.

9. On the contrary, in Shiv Cotex v.
Tirgun Auto Plast (P) Ltd., (2011) 9 SCC
678, the Apex Court, while deprecating the
practice of adjourning the cases at the drop
of a hat, has opined as under:-

16. No litigant has a right to
abuse the procedure provided in 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 the proviso to Order 17 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 17 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 Rule 1 of
Order 17 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."
 (emphasis supplied)

10. In B.V. Smitha Rani v. M.K.
Girish, (2009) 17 SCC 660, despite
opportunity the counsel for the respondent
did not cross examine the appellant and the
Family Court closed the opportunity of the
respondent in the said case to lead
evidence. The High Court remanded the
matter and granted one more opportunity to
the respondent to cross examine the
appellant. The Apex Court set aside the
order passed by High Court and held as
under:

"6. The premise on which the
High Court passed the impugned order,
namely, non-grant of adequate opportunity
to the respondent to cross-examine the
appellant and adduce his evidence is clearly
erroneous, because, as mentioned above,
after disposal of Writ Petition No. 1031 of
2006 filed by the respondent, the Family
Court fixed the case on three different dates
for cross-examination of the appellant, but
the
respondent
did
not
avail
that
opportunity. In this view of the matter, the
Family Court had rightly closed the
evidence of the respondent, heard the
arguments and pronounced the judgment
and the High Court committed serious
error by remitting the matter for giving
further opportunity to the respondent to
cross-examine the appellant and adduce his
evidence."
 (emphasis supplied)

11. In the present case, four times
opportunity was afforded to the petitioner to
cross examine the third respondent but the
petitioner failed to avail the said opportunity. The
trial Court was, thus, constrained to close the
opportunity of the petitioner to cross examine the
third respondent. In the circumstances, it cannot
be said that the trail Court has committed any
error in refusing to adjourn the matter and
closing the opportunity of the petitioner to cross
examine PW 1. Likewise, the revisional court
has also committed no error in upholding the
said order.
288 INDIAN LAW REPORTS ALLAHABAD SERIES

12. The petition is devoid of merit and
is accordingly dismissed.
----------
(2020)09ILR A288
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.04.2018

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc Single No. 2773 of 2014

Tulsi Ram ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sunil Kumar Singh

Counsel for the Respondents:
C.S.C.

Order of Cancellation dated 07.04.2006 -
appeal rejected on 22.02.2007-W.P. filed
on 05.05.2014-no satisfactory explanation
for inordinate delay.

Writ Petition dismissed. (E-9)

Cases referred: -

1.City and Industrial Development Corpn. Vs
Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168

2.Chennai Metropolitan Water Supply & Sewerage
Board Vs T.T. Murali Babu, (2014) 4 SCC 108

3. State of J&K Vs R.K. Zalpuri, (2015) 15 SCC 602

4.Smt. Urmila Jaiswal Vs St. Of U.P. Thru Secy.
& ors., 2013 (4) ALJ 388

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. By this petition under Article 226
of the Constitution of India, the petitioner
assails the validity of the order dated
07.04.2006
of
the
Sub
Divisional
Magistrate, Sadar, Hardoi cancelling the
fair price shop agreement of the petitioner
and also the order dated 22.02.2007 of the
Appellate Authority, whereby the appeal
preferred by the petitioner against the
cancellation order has been rejected.

2. The petitioner was a licensee of a
fair price shop situated in village Lilawal,
Tehsil and District Hardoi. By an order
dated 22.12.2005 passed by the Sub
Divisional
Magistrate,
the
license
/
agreement of the shop in question was
suspended and the petitioner was required
to submit his explanation. The petitioner on
31.03.2006 submitted his reply. After
taking into account the reply submitted by
the
petitioner,
the
Sub
Divisional
Magistrate, by his order dated 07.04.2006,
cancelled the fair price agreement of the
petitioner. The appeal preferred by the
petitioner against the said order was
dismissed by the Appellate Authority vide
order dated 22.02.2007. On 14.03.2012 the
petitioner
moved
an
application
for
restoration/recall
of
the
said
order,
alongwith an application for condonation of
delay. The Appellate Authority, by the order
dated 12.02.2014, refused to condone the
delay and accordingly dismissed the recall
application as time barred. Notably, the
order dated 12.02.2014 has not been
assailed by the petitioner. Only the orders
dated 07.04.2006 and 22.02.2007 are under
challenge in this writ petition.

3. In their counter affidavit, the
respondents have not only supported the
orders under challenge, but have also raised
a preliminary objection regarding the
maintainability of the writ petition on the
ground of delay and laches.

4. Heard Shri Sunil Kumar Singh, the
learned counsel for the petitioner and the