# Shiv Nath & another Plaintiff/ v. Bangai Defendant/

- **Citation:** (2006) 3 ILRA 965
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-23
- **Case number:** Civil Misc. Writ Petition No. 28252 of 2006
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-nath-another-plaintiff-v-bangai-defendant-40713
- **Pages:** 4

## Headnote

Code of Civil Procedure-Order 17-rule IAdjournment of case-beyond 3 occasionTrail Court refused adjournment and
proceeded with hearing-held-not propernumber as provided in the proviso-be
intereperated
as
directory
and
not
mandatory-before granting adjournment
the court must be satisfied with such
extraordinary
circumstances-otherwise
the suffering party be compensated by
award of cost-necessary direction issued
in this regard.

Held: Para 4

The petitioners-plaintiffs' adjournment
application had been rejected by the trial
court on 30.3.2005 as P.W. 1 Ram Raj,
who was in the process of being cross
examined, was not present. It was noted
that the witness on account of illness
could not reach the court and obviously
if one witness who was in the process of
cross examination is not present on
account of his illness such prayer for
adjournment should have been allowed,
subject to award of costs. On the very
next day i.e. 31.3.2005 this witness was
presented before the trial court but his
cross examination was not permitted
and the second impugned order was
passed on the petitioners' application
given under Section 151 C.P.C. In view of
the
availability
of
an
exceptional
circumstance, which was beyond control
of the other plaintiff to produce P.W. 1
(the other plaintiff) in the witness box
on
30.3.2005,
the
prayer
seeking
adjournment made by the petitioners
should have been granted. Of course, if
the court finds in the face of it, the
reasons of illness given to be false it
does have a right to reject such prayer
but here what appears to have actually
clicked to the court for refusing the
adjournment is nothing but the provision
contained in the proviso to Rule 1 of
Order 17 C.P.C. and that does not appear
to be a just and proper approach and
interpretation of the court to that
provision.
Case law discussed:
2005 (6) SCC-344

## Text

3 All] Shiv Nath and another V. Bangai
965
aside. Thus, the said ratio is no longer a
good law.

9. For the reasons stated above, this
is not a fit case for interference under
Article 226 of the Constitution of India.
Rejected. Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 28252 of 2006

Shiv Nath & another ...Plaintiff/Petitioner
Versus
Bangai
 ...Defendant/Respondent

Counsel for the Petitioners:
Sri H.C. Pathak

Counsel for the Respondent:

Code of Civil Procedure-Order 17-rule IAdjournment of case-beyond 3 occasionTrail Court refused adjournment and
proceeded with hearing-held-not propernumber as provided in the proviso-be
intereperated
as
directory
and
not
mandatory-before granting adjournment
the court must be satisfied with such
extraordinary
circumstances-otherwise
the suffering party be compensated by
award of cost-necessary direction issued
in this regard.

Held: Para 4

The petitioners-plaintiffs' adjournment
application had been rejected by the trial
court on 30.3.2005 as P.W. 1 Ram Raj,
who was in the process of being cross
examined, was not present. It was noted
that the witness on account of illness
could not reach the court and obviously
if one witness who was in the process of
cross examination is not present on
account of his illness such prayer for
adjournment should have been allowed,
subject to award of costs. On the very
next day i.e. 31.3.2005 this witness was
presented before the trial court but his
cross examination was not permitted
and the second impugned order was
passed on the petitioners' application
given under Section 151 C.P.C. In view of
the
availability
of
an
exceptional
circumstance, which was beyond control
of the other plaintiff to produce P.W. 1
(the other plaintiff) in the witness box
on
30.3.2005,
the
prayer
seeking
adjournment made by the petitioners
should have been granted. Of course, if
the court finds in the face of it, the
reasons of illness given to be false it
does have a right to reject such prayer
but here what appears to have actually
clicked to the court for refusing the
adjournment is nothing but the provision
contained in the proviso to Rule 1 of
Order 17 C.P.C. and that does not appear
to be a just and proper approach and
interpretation of the court to that
provision.
Case law discussed:
2005 (6) SCC-344

(Delivered by Hon'ble Umeshwar Pandey, J.)

Heard
learned
counsel
for
the
petitioners.

1.

The
plaintiffs-petitioners'
application for adjournment was rejected
by the trial court vide Annexure No. 5 on
the ground that earlier on three occasions
plaintiff's such prayer of adjournment had
been granted and in the light of proviso
added to Order 17 Rule 1 C.P.C. no
adjournment beyond three dates could be
granted by the court. The petitioners
subsequently moved the trial court with
another application under Section 151
C.P.C. (Annexure No. 6) for permitting
Ram Raj, one of the plaintiffs present in
the court, to be cross examined by the
966 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
defendant's counsel. But that application
too has been dismissed by the trial court
vide Annexure No. 7. Thereafter, only the
petitioner approached the revisional court
which also did not find favour of the court
and has been dismissed vide Annexure
No. 9.

2. The petitioners on 30.3.2005,
which was the 4th date fixed for final
hearing (evidence) in the suit, had moved
an application for adjournment. As the
plaintiffs had already taken three earlier
adjournments it actually weighed with the
trial court in rejecting the prayer and
passing the impugned order. That date
being the 4th occasion, the plaintiff to the
suit as was seeking adjournment of
hearing in the suit it was not allowed in
view of the proviso to Order 17 Rule 1
C.P.C.
as
amended
vide
C.P.C.
(amendment) Act, 1999 (operative w.e.f.
01.07.2002). The ground taken by the
petitioner for adjournment was that the
plaintiff P.W. 1 had fallen ill and could
not reach the court to be present for his
cross
examination
as
such.
His
examination in chief had already been
recorded earlier. The ground of illness,
which
had
been
taken
for
such
adjournment, was though quite substantial
but the gravity of the same has been outweighed by the trial court simply keeping
in view the referred proviso to Rule 1 of
Order 17 C.P.C. Subsequent thereto the
very next day (31.3.2005) when the
plaintiff Ram Raj (P.W. 1) appeared
before the court and moved an application
under Section 151 C.P.C. offering himself
for the cross examination, that prayer has
also been dismissed by the trial court.
Whether or not there were exceptional
reasons or the circumstances beyond the
control of the plaintiff on the date when
their prayer for adjournment was refused,
is a matter of appreciation by the court
while granting or refusing such prayer of
a party. In this context in order to
appreciate the propriety of the order
passed by the courts below, a reference to
the provisions of Order 17 C.P.C. as a
whole, is necessary and it is quoted as
below:-

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 hearing of the suit.]
(2) Cost of adjournment.-In every
such case the Court shall fix aday 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-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 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
3 All] Shiv Nath and another V. Bangai
967
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 case
may be, by the party or his pleader not
present or not ready as aforesaid.]

3. A perusal of the aforesaid
provisions no doubt makes it clear that the
statute provides guidelines not to grant
adjournment sought by one party in the
matter of hearing of a suit on more than
three occasions. But at the same time it
also does not put complete fetters on the
court's discretion for such grant of
adjournment, in case, the party suffering
on account of such grant of adjournment
can be compensated by award of costs
and there are exceptional reasons or
circumstances beyond the control of that
party seeking adjournment to proceed
with the hearing. Therefore, to say that
this proviso added to Rule 1 by C.P.C.
Amendment Act, 1999, takes away the
discretion
of
the
court
to
grant
adjournment on fourth occasion would be
a wrong interpretation of the Rule. Thus,
the number, as provided in the aforesaid
proviso, has only limited adjournment and
can be quite safely interpreted to be just
directory and not mandatory. It is true that
grant of any adjournment let alone the
first, second or third adjournment, is not a
right of a party. The court granting
adjournment must be satisfied by the
party making such prayer that special and
extraordinary circumstances are available
for grant of adjournment and the court is
not supposed to make a routine order in
this regard. The proviso to Order 17 Rule
1 C.P.C. has to be necessarily read down
so as not to take away the discretion of
the court in the extreme hard cases, for
instance, a party may be suddenly
hospitalized on account of some serious
ailment or there may be serious accident
or some act of God leading to some
devastation. In such circumstances it
cannot
be
said
that
though
the
circumstances may be beyond control of a
party, further adjournment cannot be
granted because of restrictions of three
adjournments, as provided in the proviso
to Order 17 Rule 1 C.P.C. The court can
grant adjournment even in cases, which
may not directly come within the category
of circumstances beyond the control of a
party, by resorting to the provision of
higher costs which can also include
punitive costs, in the discretion of the
court for granting adjournment beyond
three occasions, while considering such
prayer of a party. However, the court
must have regard to the injustice that may
result on refusal thereof, with reference to
the particular facts of a case. In this
context the case law of Salem Advocate
Bar Assn. Vs. Union of India, (2005) 6
SCC 344 is quite relevant. The law laid
down in para 30 and 31 of the judgment
by the Hon'ble Apex Court squarely
applies to the facts of the present case.

4.

The
petitioners-plaintiffs'
adjournment application had been rejected
by the trial court on 30.3.2005 as P.W. 1
Ram Raj, who was in the process of being
cross examined, was not present. It was
noted that the witness on account of
illness could not reach the court and
968 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
obviously if one witness who was in the
process of cross examination is not
present on account of his illness such
prayer for adjournment should have been
allowed, subject to award of costs. On the
very next day i.e. 31.3.2005 this witness
was presented before the trial court but
his cross examination was not permitted
and the second impugned order was
passed on the petitioners' application
given under Section 151 C.P.C. In view of
the
availability
of
an
exceptional
circumstance, which was beyond control
of the other plaintiff to produce P.W. 1
(the other plaintiff) in the witness box on
30.3.2005,
the
prayer
seeking
adjournment made by the petitioners
should have been granted. Of course, if
the court finds in the face of it, the
reasons of illness given to be false it does
have a right to reject such prayer but here
what appears to have actually clicked to
the court for refusing the adjournment is
nothing but the provision contained in the
proviso to Rule 1 of Order 17 C.P.C. and
that does not appear to be a just and
proper approach and interpretation of the
court to that provision.

5. In view of the aforesaid, this writ
petition is hereby disposed of with a
direction to the trial court to permit cross
examination of P.W. 1 Ram Raj on the
very next date when the suit is listed for
hearing and thereafter to further proceed
to dispose of the case in accordance with
law.

 Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 5324 of 1997

Shree Satya Narain Tulsi Manas Mandir,
Durga Kund, Varanasi
...Petitioner
Versus
Workmen Compensation Commissioner/
Authority under the Minimum Wages Act,
1948/ Additional Labour Commissioner,
Varanasi and others
 ...Respondents

Counsel for the Petitioner:
Sri N.B. Saxena
Sri M.B. Saxena

Counsel for the Respondents:
Sri V.K. Shukla
Sri B.N. Singh
Sri S.C. Rai
Sri K.C. Sinha
Sri A.C. Agrawal
Sri Ashok Nigam
Sri Adish Agrawal
Sri Sanjay Goswami
Sri S.K. Maurya
Sri Dr. R.G. Padia
Sri P. Padia
C.S.C.

Minimum
Wages
Act,
1948,
U.P.
Minimum Wages Act (U.P. Amendment)
Act 1960, U.P. Minimum Wages Rules
1952-readwith Constitution of India Act14, 21, 38 (2) and 43-Right to get
minimum wages-persons working in a
religions
on
charitable
institutionengaged at the pleasure of Managementcannot be denied their rights of living a
life of human dignity-State Government
directed to frame scheme-regulation
providing protection to such working of
such religions and charitable institutions.

Held: Para 36