Judgment:
A.B. Pal, J.
1. In above four writ petitions, the petitioner and the main respondent being same and the same order dated 19-3-2003 of the Civil Judge, Senior Division, West Tripura, Agartala in Title Suit Nos. 59/01, 60/01, 61/01 and 62/01 having been assailed, I have taken up all these cases for disposal by single judgment.
2. The plaintiff petitioner filed the aforesaid suits on 9-7-2001 in the Court of Civil Judge, Senior Division, West Tripura, Agartala and on 13-8-2002, issues were framed. The plaintiff petitioner did not file list of witnesses and did not annex the list of documents upon which he proposed to rely as required under Rule 14 of Order VII of the Code of Civil Procedure. The case was fixed for peremptory hearing on 31-8-2002, but on that date, the plaintiff petitioner had taken adjournment. The next date was 18-11-2002, but on that date also he sought adjournment and submitted a prayer to call for certain records. The prayer was disposed of on 21-1-2003 partly rejecting the prayer on the ground that no cause was shown for non-production of those documents as required by Rule 14 of Order VII C. P. C. But the prayer for summoning the sub-Registrar for proving the certified copy of the deed was allowed as a copy was furnished along with the plaint. The Court, however, allowed production of admissible evidence as per provision of law fixing 19-2-2003 for the next date of hearing /filing of evidence of witnesses by affidavit. On 19-3-2003, the plaintiff petitioner again sought adjournment on the ground that though intended, he could not file the revision petition against the order dated 21-1-2003 as he got the certified copy of the said order only on 4-3-2003. Another ground for adjournment was that though the revisional application was prepared on 12-3-2003. he could not collect Air Ticket to travel from Kolkata to Agartala. The petition for adjournment was rejected by order dated 19-3-2003 on the ground that three adjournments already allowed and proviso to Rule 1 of Order XVII of the C. P. C. does not permit more than three adjournments during hearing of the suit. After recording the conduct of the plaintiff-petitioner, who blocked the progress of the suit by seeking adjournment after adjournment, the trial Court after hearing both sides dismissed the suits for default. The present writ petitions have assailed the said order dated 19-3-2003. Same order on same date has been passed in all the above four suits.
3. The defendant respondents filed counter-affidavit contending that the writ petition under Article 227 of the Constitution against the impugned order is not maintainable as there has been no failure of grave injustice. The supervisory power of the High Court can be invoked only in a situation when gross failure of justice has occasioned. Furl her contention of the defendant respondents is that the plaintiff petitioner by seeking adjournment after adjournment in the cases filed by him is intending to prolong the settlement of the dispute.
4. I have heard Mr. S. Talapatra, learned senior counsel, assisted by Mr. B. Banerjee, learned counsel for the petitioner and Mr. P. R. Barman, learned counsel for the respondents.
5. The first submission of Mr. Talapatra is aimed at the observation in the impugned order that the adjournment prayer dated 19-3-2003 of the petitioner was without any affidavit/verification and signature of the plaintiff-petitioner. The defect so indicated by the trial Court might have played in his mind in rejecting the prayer. But Mr. Talapatra submits that an adjournment petition is not required to be filed and signed by the plaintiff and no affidavit or verification is at all required. His second submission is that more than three adjournments cannot be granted during hearing in view of the proviso to Rule 1 of Order XVII C. P. C, as held by the Court in the impugned order, is misconceived for the reason that the adjournments were sought for in pre-hearing stage of the case. His third submission is that when both the parties were heard by the Court, the course of action was not to dismiss the suit for default, but to proceed with the suit as required by Rule 3 of the said Order.
6. Mr. Roy Barman, on the other hand, submits all the three adjournments were at hearing stage and, therefore, it was not possible for the trial Court to ignore the proviso to Rule 1 of Order XVII C. P. C. for granting another adjournment. His further submission is that though the Court has recorded in the impugned order that both sides were heard, the fact remains that the plaintiff petitioner was not present on that date and the presence of the lawyer cannot be taken to be the presence of the plaintiff petitioner. In view of this position, when one party was absent, the Court was correct to dismiss the suit for default under Rule 2 of Order XVII CPC.
7. Be that as it may. the admitted position remains that the plaintiff petitioner sought and obtained three adjournments after the case was fixed for hearing. Mr. Talapatra submits that the stage of hearing does not commence till the plaintiff examines his witnesses. Admittedly, Order XVIII C. P. C. deals with hearing of the suit and examination of witnesses. Rule 1 of the Order provides that the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents that either on point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief. Rule 2 of that Order relates to statement and production of evidence. Sub-rule (1) of that Rule reads- 2. (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. A careful reading of this provision, in more particular 'On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned', will definitely mean that the hearing is fixed and adjourned by the Court and commencement of the stage of hearing does not depend on the plaintiff or the defendant. When the date for hearing is fixed, the party having right to begin, shall state his ease or produce his evidence. If he failed to do so, the hearing may be adjourned. Thus, the Court can fix the hearing and adjourn the hearing subject to a maximum of three adjournments during hearing as enjoined in the proviso to Rule 1. If the submission of Mr. Talapatra that the hearing of the suit shall never commence unless the plaintiff examines his witnesses is accepted, it will lead to an absurd situation when the Court will be totally helpless and the provision of maximum three adjournments completely otiose. The hearing can never commence unless the plaintiff so desires. This submission of Mr. Talapatra is, therefore, not at all acceptable.
8. Once it is held that the hearing of the suit commenced when the Court fixed the suit for hearing on 31-8-2002, the proviso to Rule 1 of Order XVII CPC comes into play prohibiting the Court from granting more than three adjournments. The legislatures have cautiously enacted this provision to ensure the litigations are not dragged unnecessarily causing thereby failure of justice, There is no dispute that three adjournments were already allowed by the trial Court after 31-8-2002 and, therefore, the Court had no authority to grant any more adjournment, which was prayed for on 19-3-2003 by the plaintiff petitioner.
9. This takes me to the next question whether the Court was right in dismissing the suit for default alter rejecting the prayer for adjournment. Mr. Talapatra submits that after the Court has recorded in the impugned order that both sides were heard, it was not open to the Court to dismiss the suit for default. The correct course of action was to proceed to decide the suit forthwith as provided in Rule 3 of Order XVII C. P. C which is quoted below :-
3. Court may proceed notwithstanding either party fails to produce evidence, etc.
Where any party to a suit to whom time has been granted fails to produce his evidence, or lo cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under Rule 2.
As both sides were present, it was, therefore, not correct for the Court to dismiss the suits for default ignoring the definite provision in Clause (a) of Rule 3 that if the parties are present, the Court shall proceed to decide the suit forthwith. Dismissal of a suit can be done under Rule 2 of that Order only when on any day to which the hearing of the suit is adjourned, the parties or any of them failed to appear. The essential condition for dismissal of a suit for default under Order IX is that either both parties or one of them must fail to appear. This not being the case, the trial Court acted illegally by dismissing the suits for default.
10. Making a robust attempt to save the impugned order, Mr. Roy Barman submits that admittedly on the date of hearing, the plaintiff petitioner was not present and that presence of his lawyer cannot be treated as the presence of the party. In order to derive support for his contention, he cited one case reported in AIR 1922 All 68 and another reported in : AIR1977MP222 (FB). In both cases, the party was absent and the lawyer sought adjournment. When the adjournment was refused, the lawyer declared that he had withdrawn meaning thereby that he was not representing the party. This, in turn, was taken to be the absence of the party and the order of dismissal under Order IX C. P. C. following the principles laid down in Rule 2 of Order XVII CPC was found to be justified. Admittedly, this is not the situation in the case in hand as there is nothing to show that the lawyer representing the plaintiff petitioner had withdrawn after the prayer for adjournment was rejected. The facts situation of those cases do not fit in the factual position of the present one. Mr. Roy Barman has cited another decision of the Supreme Court in Mohandas v. Ghisia Bai reported in AIR 2002 SC 2436. Para 3 of the said decision reads :-
3. In the present case what we find is neither the plaintiff-appellant not his wit-nesses were present on 7th May. 1994. Therefore, the case has to be dismissed under Order XVII. Rule 2. Even Rule 3 itself provides that II the parties or any of (hem absent, the Court shall proceed to decide the suit under Order XVII. Rule 2. In view of the said legal position, we are of the view that the view taken by the Court below was erroneous and deserves to be set aside. We. therefore, set aside the Judgment under appeal and sent the ease back to (he trial Court to decide the matter in accordance with law.
It will appear from the above that neither the plaintiff appellant nor Ills witnesses were present on 7th May. 1994 though the counsel of the plaintiff appellant moved an application for a short adjournment for filing revision. There Is no induration whether after the prayer for adjournment was rejected. the counsel has withdrawn or ceased to represent the plaintiff appellant. In the impugned order, there Is no mention that the plaintiff petitioner was absent and he was represented by his lawyer. The first Sine starts with the words 'A petition is filed on behalf of the plaintiff for adjournment without any affidavit or without any verification and also without signing by the plaintiff and in the second para of the order, the Court recorded that he had heard both sides and considered. This being the position, the facts situation recorded In the aforesaid decision cannot be said to be same as in the present one. It may further be noted that the Supreme Court In the above decision observed that even Rule 3 itself provides that if the parties or any of them are absent the Court shall proceed to decide the suit under Order XVII, Rule 2 CPC.
11. In view of the above discussion. It is found that the trial Court has correctly rejected the prayer of adjournment by the impugned order, but instead of dismissing the suits for default the Court should have proceeded to decide the suits forthwith as the Court itself recorded that it had heard both sides. After such recording about presence of both side. It was not open to the Court to dismiss the suits for default.
12. Consequently, these writ petitions are allowed to the above' extent setting aside the order of dismissal and remitting the same to the trial Court to proceed with the suits in accordance with law as required by Order XVII. Rule 3 of the Code of Civil Procedure. No cost.