Holding

The trial court erred in refusing adjournment and forfeiting cross‑examination; reasonable time must be allowed for a counsel who falls ill, and the case should be adjourned at least for the next day.

Summary

The appellant filed an ejectment suit in 1988 which was repeatedly adjourned. On 8 August 1994, due to a lawyers' strike, the case was adjourned to 9 August 1994. The appellant's counsel fell ill and requested a short adjournment, offering to pay costs, but the trial court refused and ordered forfeiture of the appellant's right to cross‑examine the plaintiff. The appellant's revision petition was dismissed by the High Court. On special leave, the Supreme Court examined Order 17 of the Civil Procedure Code, holding that the proviso to Rule 1(2) requires the court to allow reasonable time when a pleader becomes ill, and that the trial court should have granted at least a one‑day adjournment instead of forfeiting cross‑examination. The Court directed the trial court to fix a new date for cross‑examination and proceeded with the trial, awarding no costs.

Issues considered

When may a court grant adjournment under Order 17 Rule 1 of the CPC, particularly in cases of counsel's illness?
What is the meaning of "in time" in the proviso to Order 17 Rule 1(2) regarding illness of a pleader?
Was the trial court justified in refusing adjournment and ordering forfeiture of the appellant's right to cross‑examine?

Legislation cited

Code of Civil Procedure, 1908s. Order 17 Rule 1(1), s. Order 17 Rule 1(2), s. Order 17 Rule 1(2) proviso (d)

Subjects

adjournmentCivil Procedure CodeOrder 17counsel illnessreasonable timeforfeiture of cross‑examinationejectment suit

Judgment

i

'
A BASHIR AHMED
v.
MEHMOOD HUSSAIN SHAH.

MARCH 20, 1995

B (K RAMASWAMY AND B.L. HANSARIA, JJ.]

Civil Procedure Code-Order 17, Rule 1, Sub-rules (1) and (2)-Ad-
journment-When can be granted and on what conditions. r
C Civil Procedure code-Proviso(d) to order 17 Rule 1(2}-lnterpretation
of "in time"-Reasonable time to engage another counsel should be given.
\ '

Suit for ejectment filed by the plaintiff was adjourned from time to
time. On 8.8.94, due to lawyers' strike the matter was adjourned to 9.8.94.
The counsel appearing for the appellant became ill and therefore, the
D appellant prayed the court on 9.8.94 f~r adjournment and agreed to pa)'
cost. The request of the appellant was declined and as the appellant was
unable to cross-examine the Witness, the court ordered forfeiture of cross-
examination. ·

Appellant filed revision petition before the High Court which was
E dismissed.
Hence, this appeal by special leave.

AlloWing the appeal, this court

F HELD: 1. Order 17 Rule 1 indicates that protraction of trial or the
\
suit should not be encouraged and the court shall try the suit as ex-
peditiously as possible. If the adjournment is occasioned on any sufficient
ground, then it may, in an appropriate case, adjourn the matter to a
shorter date asking the party seeking adjournment to pay costs incurred
G by the party who got the Witnesses produced and was ready to proceed With
trial. (814-G]

2 (a) The words "in time" in clause (d) of the proviso to sub rule (2) \ ,

of order 17 Rule 2 indicates that at least reasonable time may be given '
·when a counsel suddenly becomes unwell, There would be reasonable time
H for the parties to make alternative. arrangement when sufficient time
812
I
r

BASHIR AHMED v. M.H. SHAH 813

intervenes between the last date of adjournment and the next date of trial. A
In such a case, adjournment on the ground of counsel's ill health can be
refused and the party would bear responsibility for his failure to make
alternative arrrangements. (815-B]

(b) The court was not right in refusing to adjourn the matter at least
for the next day as the counsel for the appellant had to cross-examine the B
respondent-plaintiff. Unless there is time for the new counsel to be
engaged for application of his mind to pleadings, issues framed the
evidence already on record, it would be difficult, for him to proceed with
the cross- examination on the spur of moment. (815-G-E]
c
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4035 of
1995.

From the Judgment and Order dated 8.9.94 of the Jammu & Kashmir
High Court in C.R. No. 118 of 1994.
D
S.P. Singh and Ashok Mathur for the Appellant.

M.L. Bhat, Anant Palli and Ms. Purnima Bhat Kak for the Respon-
dent.
E
The following Order of the Court was delivered:

Leave granted.

We have heard· counsel on both sides. From the record, it would
appear that a suit for ejectment was filed on October 3, 1988 and the matter F
·was adjourned from time to time on one count or the other. On 8.8.94,
while. the plaintiff was present in persop., due to death of an advocate, the
advocates went on strike. As a consequence, the matter was adjourned to
9.8.94. It would appear that since counsel appearing for the appellant was
unwell, the appellant could not proceed with the cross-examination of the G
respondent-plaintiff and sought for short adjournment and agreed to pay
. ) costs. Instead, the court directed the appellant to engage another lawyer
for cross-examination of the plaintiff. Since he did not do so, the court
ordered for forfeiture of cross- examination and proceeded with the mat-
~ .k
814 SUPREME COURT REPORTS (1995) 2 S.C.R.

A Calling in question the procedure adopted and the order passed by
the trial court the appellant went in revision. The High Court by order
dated 8.9.94 in CR No. 118/94 dismissed the revision. Thus this appeal by
special leave.

Order 17, Rule 1(1) provides that
B
"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".
r
c Sub-Rule (2) is relevant which reads : \
"Costs of adjournement - In every such case the court shall fix a
~
day for the furthre hearing of the suit, and may make such order
as it thinks fit with respect to the costs occasioned by the adjour-
nement:
D
Provided that :

(a) xxxxxxx:xxxxxxx
,.,-.-.
(b) xxxxxxxxxxxxxxx
E (c) xxxxxxxxxxxxxxx

( 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 for adjournment, the court shall not
p '
grant the adjournment unless it is satisfied that the party applying
for adjournment could not have engaged another pleader in time," \ -
The Rule thus indicates that protraction of trial of the suit should
not be encouraged and the court shall try the suit as expeditiously as
possible. It the adjournment has occasioned on any sufficient ground, then
G it may, in an appropriate case, adjourn to a shorter date asking the party
seeking adjournment to pay costs incurred by the party who got the
witnesses produced and was ready to proceed with trial. Clause (d) of the
proviso specifically mentions that if the court is satisfied that illness of the
counsel or inability of the counsel to proceed with the case was put
H forward, except when the counsel was engaged in another case as a ground
BASHIR AHMED v. M.H. SHAH 815
for adjournment, it shall not grant adjournment. A·
Therefore, the court is enjoined to satisfy itself in that behalf. If the
party engages another counsel as indicated therein, then the need for
further adjournment would be obviated. The words 'in time' would indicate
that at least reasonable time may be given when a cousel suddenly becomes B
unwell. There would be reasonable time for the parties to make alternative
arrangement, when sufficient time intervenes between the last date of
adjournment and the next date of trial. In such a case, adjournment on the
ground of counsel's ill health could be refused and the party would bear
Iy the responsibility for his faiure to make alternative arrangements. Take for
instance, a suit was adjourned for trial for a period of one week and the C
cousel appears to have suddenly become indisposed which would be known
to the party. Therefore, the party, in advance, has to make alternative
arrangement to proceed with the trial engaging another counsel The words
'in time' would, therefore, indicate that reasonable time would be required
for making alternative arrangements. D

In this case, it is seen that the counsel for the appellant had to
cross-examine the respondent-plaintiff. Unless there is time for the new
counsel to be engaged for application forhls mind to pleadings, issues
framed, the evidence already on record, it would be difficult to proceed E
with the cross-ex;nDination on the spur of moment. It would be seen that
the matter was adjourned from 8.8.94 to 9.8.94. Obviously, during that
night the cousel must have fallen ill. Therefore, the party had no time to
make alternative arrangements. Engaging a new cousel to proceed with
trial would be fraught with grave risk and be Unrealistic. The court should
have adjourned the case for the next date so as to enable the appellant to F
have another counsel engaged and given instructions to the new cousel to
proceed with the cross-examination in the light of the pleadings and the
issue framed in that behalf.

Under these circumstances, the court was not right in refusing to G
adjourn the matter at least for the next day and it committed grave error
) of law by its order to forfeit the right of the appellant to cross-examine the
respondent.

The appeal is accordingly allowed. The trial court is directed to fix H
l
816 SUPREME COU:RT REPORTS (1995) 2 S.C.R.

A a date for cross-examination of the respondent-plaintiff on which date the
appellant shall proceed with the trial of the suit. If any other witnesses
are examined they should be recalled and the appellant be given oppor- '"\. _,
tunity to cross-examine them. In case, he does !lot proceed with the trial,
his right to cross-examination would stand forfeited and the court would
B be free to proceed with the trial and dispose of the suit according to law.
No costs.

B.K.M. Appeal allowed.
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