JUDGMENT Tarun Agarwala, J.
1. Heard Sri P. K. Ganguli, the learned Counsel for the petitioners and Sri G. K. Gupta, the learned Counsel for respondent No. 1.
2. The examination of the defence witness Nos. 1 and 2 were closed on 31.1.2005. The defence witness Nos. 3 and 4 were not available on that date. Consequently, the defendant moved an application for adjournment and for fixing a date for the examination of defendant Nos. 3 and 4, on the ground, that the defence witness No. 3 being 80 years old was unwell on account of the extreme cold climate and was unable to come to the Court to lead the evidence. With regard to defence witness No. 4, it was contended that the said witness was a professional handwriting expert and was only available on Wednesday and therefore, some Wednesday be fixed for his examination. This application was rejected by the trial court by an order dated 31.1.2005. A recall application was moved which was rejected by an order dated 28.8.2006 on the ground that the defendant had continuously taken five adjournments and therefore, no further adjournment could be allowed in view of the mandatory provisions of Order XVII, Rule 1 of the C.P.C. The petitioners being aggrieved by the aforesaid orders have filed the present writ petition.
3. The learned Counsel for the petitioners submitted that the provisions of Order XVII, Rule 1 are not mandatory and that on sufficient cause being shown, the Court has the discretion as well as the inherent powers to adjourn the proceedings. The learned Counsel further submitted that sufficient cause had been shown and, in any case, the defendant had never taken any adjournment for the examination of defendant Nos. 3 and 4 and that it was the first application seeking an adjournment of the case for the production of the defence witness Nos. 3 and 4.
4. On the other hand, the learned Counsel for the respondents submitted that the defendant had taken five adjournments in all and therefore, was debarred from taking any further adjournments in view of the provisions of Order XVII, Rule 1 of the C.P.C. In support of his submission, the learned Counsel for the respondents relied upon a decision of a Division Bench of this Court in Chandra Prakash Ojha v. District Judge, Bareilly and Ors. 2004 (1) JCLR 304 (All) : 2004 (2) AWC 1156, in which it was held that even three adjournments contemplated under Order XVII, Rule 1 of the C.P.C. cannot be claimed as a matter of right and that it is purely the discretion of the Court to grant an adjournment or not.
5. Under Order XVII, Rule 2 of the C.P.C. various grounds have been indicated where the Court could adjourn the examination of the witness for exceptional reasons to be recorded on payment of cost. In the present case one of the witness was 80 years old and it was contended that he became unwell on account of the extreme cold climate prevailing at that time. This fact of harsh cold claim is well known in India especially in Northern India during the month of January. Further the witness was 80 years old. The Court should have considered this aspect of the matter and granted an adjournment which admittedly was beyond the control of the defendant. The exception provided under Order XVII, Rule 2 (b) was clearly applicable in the present case. Similarly, it was alleged that the defence witness No. 4 being a professional handwriting expert was only available on Wednesday and therefore, the Court should have fixed a date on Wednesday for examination of that witness. The record further shows that the adjournment for summoning the defence witness Nos. 3 and 4 was only sought for the first time. Consequently, the Court ought to have exercised its discretion in granting an adjournment on payment of cost, if necessary.
6. In Salem Advocate Bar Association, Tamil Nadu v. Union of India , the Supreme Court held that the provisions of Order XVII does not forbid the Court from granting an adjournment where the circumstances are beyond the control of the party.
7. In view of the aforesaid decision of the Supreme Court, this Court is of the opinion that the provisions of Order XVII, Rule 1 of the C.P.C. is not mandatory in nature. The Court, on sufficient cause being shown and for sufficient reasons to be recorded could allow the adjournment on payment of cost.
8. In view of the aforesaid, the impugned orders dated 31.1.2005 and 28.8.2006 are quashed on payment of cost of Rs. 5.000 which shall be deposited by the defendant-petitioner within four weeks from today. The amount so deposited can be withdrawn by the plaintiff.
9. The Court below shall fix a date for the examination of the witness Nos. 3 and 4. It is made clear that the case will not be adjourned on the date fixed by the trial court. The court below is also directed to ensure that the payment of cost is received by the plaintiff and not by his counsel.
10. The writ petition is allowed.