Under which circumstances the court can adjourn hearing on application for anticipatory bail?

The submissions of the learned Counsel that the verb "may" carries force of mandate. That it is to be read as "shall", cannot be accepted as to grant anticipatory bail or reject. It is a discretionary power of the Court and it cannot be restricted to only two options obliterating power to adjourn. Taking into account the practice of the Courts of granting interim protection, the said provision of power to grant interim bail is enacted by the State of Maharashtra. Thereby the said power is legally acknowledged. {Para 11}

13. Thus, when a case cannot be classified as black and white but there is a grey area or borderline case which needs some time for a Judge to get the correct picture, though prima facie, to decide fairly the application for pre-arrest bail.

16. Thus, having the third option open i.e., to simply adjourn a matter without passing any order in an Anticipatory Bail Application though is very much available to a judge such application is not to be adjourned for long time if no interim relief is granted. It is expected that it is to be expeditiously decided and, therefore, as a matter of prudence, the matter can be adjourned for final disposal without giving interim protection at the most for 2 to 3 days.

17.  Under such circumstances, interpreting the provision of section 438(1) that by way of amendment, the Court has no power to adjourn the matter but to pass orders only either to grant or reject, is not the correct interpretation.

18. In Civil Procedure Code, under Order XVII there is a specific provision for adjournment. Similarly, in Chapter XXIV of the Criminal Procedure Code, which pertains to "General Provisions as to Inquiries and Trials", section 309 is about power to postpone or adjourn every inquiry or trial but it is to be heard expeditiously. Section 309(2) empowers the Court to postpone or adjourn any enquiry from time to time for reasons to be recorded.

 IN THE HIGH COURT OF BOMBAY

Anticipatory Bail Application No. 541 of 2014

Decided On: 08.05.2014

Shrenik Jayantilal Jain and Ors. Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

Citation: MANU/MH/0580/2014,2014 SCCONLINE Bom 549.

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Allahabad HC: If Judge adjourns a case because of Advocate's strike, it amounts to misconduct

 The Principal Judge owes an explanation to this Court why he had adjourned the case acknowledging a probable strike by Advocates on 20.05.2022. The adjournment by the Principal Judge prima facie amounts to misconduct. No Court ought to take notice of a strike or a probable strike by the Advocates. The directions of the Supreme Court in District Bar Association., Dehradun through its Secretary v. Ishwar Shandilya and others, (2020) 17 SCC 672 read:

"6.6. In spite of the law laid down by this Court in the aforesaid

decisions, this Court time and again deprecated the lawyers to go

on strikes, the strikes were continued unabated.

Once this is the position, the action of the Trial Judge in adjourning the case on 21.05.2022 to 08.07.2022 requires to be explained by him, which he shall do through a report for the time being before any further orders are passed. Even otherwise, in a Family Court, the presence of an Advocate is not a necessity, though this Court is mindful of the fact that no meaningful justice can be done in the absence of the learned Counsel for parties.

ALLAHABAD HIGH COURT

Case :- MATTERS UNDER ARTICLE 227 No. - 2850 of 2022

Petitioner :- Premraj Pratap Singh

Respondent :- Alka Singh @ Meenu

Hon'ble J.J. Munir,J.

Order Date :- 23.5.2022

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Whether plaintiff can be denied right to adduce evidence if he fails to adduce evidence inspite of three chances?

In the words of the Hon'ble Apex Court :

"No litigant has a right to abuse the procedure provided in the 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 proviso to Order XVII 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 XVII 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 Order XVII 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 foods, earthquake, etc. in the area where any of these person reside; as 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. However, the absence of the lawyer or his non-availability because of professional work in other Court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the Courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit-whether plaintiff or defendant-must cooperate with the Court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, no evidence was let in by the plaintiff, in our view, it deserved no sympathy in second appeal in exercise of power under Section 100 CPC. We find no justification at all for the High Court in upsetting the concurrent judgment of the Courts below. The High Court was clearly in error in giving the plaintiff an opportunity to produce evidence when no justification for that course existed."

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4339 of 2017

Decided On: 19.03.2018

 Prakash Premnath Gaikwad  Vs. Rolf D'Souza and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(6) ALLMR 232

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When court should not allow application for calling of original record?

The trial Court
has also observed that the certified copy of the documents are available
with the plaintiff since 25.09.2012 and first time he filed it before the
court on 25.01.2018. Since the plaintiff is in possession over the

property therefore, he is unnecessarily delaying the proceedings and
now he has filed the voluminous documents and seeking summoning of
the record to prove all these documents. Therefore, this Court is of the
opinion that it is not a fit case to interfere with the impugned order
under Article 227 of the Constitution of India.

HIGH COURT OF M.P. BENCH AT INDORE
M.P. No.5117/2018

(Rajesh Sharma V/s. Binod Mills & Ors.)

Indore dt. 26.10.2018
Citation: AIR 2019 (NOC) 143 (MP)

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Whether a party will forfeit right to prosecute suit or defence if he fails to pay costs imposed upon him?

A conspectus of the above provisions clearly demonstrates that under the scheme of CPC, a suit cannot be dismissed for non-payment of costs. Non-payment of costs results in forfeiture of the right to further prosecute the suit or defence as the case may be. Award of costs, is an alternative available to the court, instead of dispensing with the cross- examination and closing the evidence of the witness. If the costs levied for seeking an adjournment to cross-examine a witness are not paid, the appropriate course is to close the cross-examination of the witness and prohibit the further prosecution of the suit or the defence, as the case may be by the defaulting party.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7554-7555 of 2009 

Decided On: 13.11.2009

Manohar Singh Vs.  D.S. Sharma and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and G.S. Singhvi, JJ.

Citation: 2010(2) MHLJ 515

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Supreme Court Guidelines for speedy trial of Criminal cases

 The following practice guidelines should be followed by trial courts in the conduct of a criminal trial, as far as possible:

i. a detailed case-calendar must be prepared at the commencement of the trial after framing of charges;

ii. the case-calendar must specify the dates on which the examination-in-chief and cross-examination (if required) of witnesses is to be conducted;

iii. the case-calendar must keep in view the proposed order of production of witnesses by parties, expected time required for examination of witnesses, availability of witnesses at the relevant time, and convenience of both the prosecution as well as the defence, as far as possible;

14 “309. Power to postpone or adjourn proceedings.–(1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded…”

See also Vinod Kumar v. State of Punjab, (2015) 3 SCC 220; and, Lt. Col. S.J. Chaudhary v. State (Delhi Administration), (1984) 1 SCC 722.

14

iv. testimony of witnesses deposing on the same subject-matter must be proximately scheduled;

v. the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case-calendar;

vi. the grant for request of deferral must be premised on sufficient reasons justifying the deferral of cross-examination of each witness, or set of witnesses;

vii. while granting a request for deferral of cross-examination of any witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination-in-chief of such witness(es) as has been prayed for;

viii. the case-calendar, prepared in accordance with the above guidelines, must be followed strictly, unless departure from the same becomes absolutely necessary;

ix. in cases where trial courts have granted a request for deferral, necessary steps must be taken to safeguard witnesses from being subjected to undue influence, harassment or intimidation.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1321 OF 2018

[Arising out of Special Leave Petition (Crl.) No. 4652 of 2018]

State of Kerala  V   Rasheed 

Dated: October 30, 2018.

Author: INDU MALHOTRA, J.
Citation: AIR 2019 SC 721

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Whether court should impose heavy costs while granting adjournment ?

I consider that looking at the manner in which the defendant had deliberately been dragging the case and seeking adjournment after adjournment on flimsy, untenable grounds and the trial Court had been obliging defendant, it only shows that the trial was being impeded by the defendant at his whims and fancies and he wanted it to be extended to any length of time. I consider that the trial Courts while exercising discretion of giving adjournments must be careful and should not impose paltry costs of Rs. 250/- or Rs. 500/- which seem to be no costs in the present days. The costs imposed by the trial Courts must be realistic costs taking into account the time of the court wasted every time when the case is called and also taking into account the harm which is being caused to the entire judicial system by such kinds of adjournments and the sufferings of the plaintiff. When the costs are realistic, keeping in view the present day value of money then only defendant seeking adjournment may be deterred from seeking such frequent adjournments. Where the costs are so paltry as is reflected in orders such as Rs. 250, Rs. 500/- or Rs. 1,000/-, such costs encourage the party to seek adjournments because the cost of prolonging the case for few months comes out hardly Rs. 200/- p.m. and anybody would happily pay such cost and keep the case prolonging. Thus, while adjournments are given on such grounds which the trial court may consider compelling, such adjournments must be given subject to realistic cost and not paltry and unrealistic cost.

IN THE HIGH COURT OF DELHI

CM(M) No. 308/2010

Decided On: 12.03.2010

Mahavir Parshad Lamboria Vs.  Joginder Kaur and Ors.

Hon'ble Judges/Coram:

S.N. Dhingra, J.

Citation: 2010 AIHC  2265 DELHI

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Whether trial court should grant adjournment to obtain stay order from higher court?

The learned trial court also granted adjournments to the defendant-petitioner to file revision petition in this court and to bring stay order. It is being noticed that parties interested in delaying the disposal of the cases repeatedly seek and get adjournments on the ground that no order has yet been passed on their revision petitions while they themselves do not get them listed for admission by not removing defects which they intentionally leave in them. On the contrary, parties interested in getting immediate orders of this Court on their urgent applications mention them at the commencement of the day and this Court gets them listed and pass orders the same day. The trial court should not have granted adjournments on such a ground.

IN THE HIGH COURT OF RAJASTHAN

Civil Revision Petition No. 867 of 1993

Decided On: 18.01.1994

Chander Singh  Vs. Chottulal

Hon'ble Judges/Coram:

M.C. Jain, J.

Citation: AIR 1994 Raj 186

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Guidelines of supreme court on examination of eye witnesses

 We are also of the view that it is necessary in the interest of justice that the eye-witnesses are examined by the prosecution at the earliest.

12. It is also necessary that the statements of eye-witnesses are got recorded during investigation itself Under Section 164 of the Code of Criminal Procedure In view of amendment to Section 164 Code of Criminal Procedure by the Act No. 5 of 2009, such statement of witnesses should be got recorded by audio-video electronic means.

13. To conclude:

(i) The trial courts must carry out the mandate of Section 309 of the Code of Criminal Procedure as reiterated in judgments of this Court, inter alia, in State of U.P. v. Shambhu Nath Singh and Ors. MANU/SC/0221/2001 : (2001) 4 SCC 667, Mohd. Khalid v. State of W.B. MANU/SC/0722/2002 : (2002)7 SCC 334 and Vinod Kumar v. State of Punjab MANU/SC/0068/2015 : (2015)3 SCC 220.

(ii) The eye-witnesses must be examined by the prosecution as soon as possible.

(iii) Statements of eye-witnesses should invariably be recorded Under Section 164 of the Code of Criminal Procedure as per procedure prescribed thereunder.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2045-2046 of 2017 (Arising out of Special Leave Petition (Crl.) Nos. 8994-8995 of 2015) 

Decided On: 28.11.2017

Doongar Singh and Ors. Vs. The State of Rajasthan

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

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Supreme court Guidelines for trial court if the accused is not co-operating in the examination of witnesses

If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the Accused or his counsel the court can adopt any of the measures indicated in the Sub-section i.e. remanding the Accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the Accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the Accused gives an undertaking in writing that he would not dispute his identity as the particular Accused in the case).

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2045-2046 of 2017 (Arising out of Special Leave Petition (Crl.) Nos. 8994-8995 of 2015) 

Decided On: 28.11.2017

Doongar Singh and Ors. Vs. The State of Rajasthan

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

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Whether physical presence of Advocate can be treated as his effective presence in court?

Though the case squarely falls in Order 17 Rule 2, useful reference may also be made to the provisions of Order 17 Rule 3. Order 17 Rule 3 reads thus-

"Order 17 Rule 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 to cause the attendance of his witness, 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.

10. The rule thus provides that if the parties are present, then Rule 3 would be applicable, and in the event the parties are absent then one needs to revert to Rule 2. Since in the present case, the plaintiffs were not present, Rule 2 would apply. It is ofcourse now a settled law that the appearance of the counsel is treated as appearance of the party, who he is representing.

11. This brings us to the question whether in the instant case, when the junior Counsel is present and appears before the Court without instructions and merely for the purpose of taking an adjournment, can it be treated as non appearance within the meaning of Order 17 Rule 2. This Court had the occasion to deal with a similar issue in the case of Prashant Vagaskar v. MCGM reported in AIR 2002 Bombay 120. In that case the Learned Single Judge of this Court (Daga J.) observed in para 21 of his Judgment as under:

"21.... In other words, appearance/presence should be for the purpose of taking part in the proceeding and that it includes preparedness to cite evidence and/or to produce documents or to take any other step for disposal of the suit/case as may be considered necessary. Therefore, if a party to a suit for some reason or other is precluded from being ready to take part in the prosecution of the suit but somehow manages to come with a view that the case should be got adjourned for some other day, his appearance in such a circumstances will not amount to an appearance as contemplated under Order 17, Rule 2 of Civil Procedure Code. In this view of the matter, the appearance of the plaintiff on 30-8-2001 was no appearance for the purpose of the suit."

12. The Learned Single Judge has in the above judgment relied upon the full bench decision of the Calcutta High Court in the case of Satish Chandra Mukerjee v. Ahara Prasad Mukerejee, (1907) ILR 34 Calcutta 403, wherein it was unanimously held by the 5-Judge bench as under:

"The term "appearance" is nowhere defined in the Code and as pointed out by Benson, J. in Seeley v. Evans, (1838-19 Wendell 459) has several significations the word must always be understood in reference to the particular subject matter to which it relates and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case. It seems to me that having regard to the scope of Section 556 of the Civil Procedure Code and the object to be gained by the attendance or appearance of the counsel to make ail (sic an) application for adjournment ought not to be treated as appearance so as to oust the jurisdiction under Section 558 of the Civil Procedure Code, if proper cause is shown. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party. I do not feel much pressed by the reference made to the case in which evidence may have been taken and which has been partially argued."

13. It is noteworthy that the High Court Amendment of Andhra Pradesh adds an Explanation to Order 17 Rule 2 of the Code, to the effect that the mere presence in Court of a party or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of this rule.

14. Thus, the presence of a Counsel has to be an effective presence, not mere physical presence. The Counsel should be ready with the matter and be able to assist the Court. The appearance of a Counsel who has instructions only to apply for an adjournment or to have the matter kept back cannot be considered as an appearance at all in the context of Order 17 Rule 2 or Order 9 Rule 8 of Civil Procedure Code. If one peruses the Vakalatnama, it ordinarily mentions the words "act appear and plead" for and on behalf of the party. The appearance of a Counsel who is not able to or unwilling to plead the cause of his client can hardly be termed as an appearance. It may be mentioned that it has become a matter of routine and everyday practice in this Court to let juniors appear and seek adjournments or have the matter kept back and many a times they are not even aware about the subject matter. Their presence cannot be termed as their "appearance" for the purposes of Order 17, Rule 2.

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 4424 of 2007

Decided On: 25.02.2009

 Devidayal Sales Pvt. Ltd. Vs. The State Trading Corporation of India and Ors.

Hon'ble Judges/Coram:

A.A. Sayed, J.

Citation:2009(4) MHLJ 298

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Whether court should grant adjournment without justifiable cause?

It appears, the respondent had complete idea what the trial Court would do to his suit even if he filed yet another application for adjournment and trial Court it appears from the order impugned in this revision application, which is the order passed below application for grant of adjournment (exhibit 71) dated 26.10.2016, did not disappoint the respondent. The trial Court allowed even this application by only observing that the adjournment was being granted as a last chance subject to payment of costs of Rs. 500/- with a direction, in case of failure, appropriate orders will be passed. All these orders passed by the trial Court in the absence of any proof being produced before it in support of ground of illness taken in the adjournment applications only exhibit complete disregard of the mandate of the provisions of Order XVII, Rule 1 of the Code of Civil Procedure. Time and again this Court as well as the Hon'ble Apex Court have held that adjournments should not be granted on the mere asking, but on "justifiable cause". The Apex Court in its judgment delivered in Civil Appeal No. 7532 of 2011 (M/s. Shiv Cotex v. Tirgun Auto Plast P. Ltd. & Ors.) on 30th August, 2011 (2011 AIR SCW 5789) has observed:--

"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 Order XVII, 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."
6. Besides above, it is equally well settled law that sufficient cause is something which is beyond the control of the party seeking adjournment and certainly the Advocate being busy in another Court is not a circumstance which is beyond the control of such party as held by this Court in the case of Dhanraj Lilaram Motwani & Anr. v. Rajendra Kumar Dayachand Jain & Ors., reported in MANU/MH/0002/1996 : AIR 1996 Bombay 3.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Revision Application No. 32 of 2017

Decided On: 08.06.2017

 Prafulla Narhar Wagh and Ors. V Govind Narayan Pimpalkar

Hon'ble Judges/Coram:
S.B. Shukre, J.

Citation:2017(5) MHLJ 605

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Procedure to be followed by court if application for recalling of witness is filed

In K.K. Velusamy (supra), while dealing with the power of the
1 (2011) 11 SCC 2755
Court under Order XVIII Rule 17, this Court held that:-
“9. Order 18 Rule 17 of the Code enables the court,
at any stage of a suit, to recall any witness who has
been examined (subject to the law of evidence for
the time being in force) and put such questions to
him as it thinks fit. The power to recall any witness
under Order 18 Rule 17 can be exercised by the
court either on its own motion or on an application
filed by any of the parties to the suit requesting the
court to exercise the said power. The power is
discretionary and should be used sparingly in
appropriate cases to enable the court to clarify any
doubts it may have in regard to the evidence led by
the parties. The said power is not intended to be
used to fill up omissions in the evidence of a
witness who has already been examined. [Vide
Vadiraj Naggappa Vernekar v. Sharadchandra
Prabhakar Gogate - 2009 (4) SCC 410].
10. Order 18 Rule 17 of the Code is not a provision
intended to enable the parties to recall any
witnesses for their further examination-in- chief or
cross-examination or to place additional material or
evidence which could not be produced when the
evidence was being recorded. Order 18 Rule 17 is
primarily a provision enabling the court to clarify
any issue or doubt, by recalling any witness either
suo moto, or at the request of any party, so that the
court itself can put questions and elicit answers.
Once a witness is recalled for purposes of such
clarification, it may, of course, permit the parties to
assist it by putting some questions.”
And again:-
“19. We may add a word of caution. The power under
Section 151 or Order 18 Rule 17 of the Code is
not intended to be used routinely, merely for the
asking. If so used, it will defeat the very purpose of
various amendments to the Code to expedite trials.
But where the application is found to be bona fide
and where the additional evidence, oral or documentary,
will assist the court to clarify the evidence
on the issues and will assist in rendering justice,
and the court is satisfied that non-production earlier
was for valid and sufficient reasons, the court
may exercise its discretion to recall the witnesses or
permit the fresh evidence. But if it does so, it should
ensure that the process does not become a protracting
tactic. The court should firstly award appropriate
costs to the other party to compensate for the
delay. Secondly, the court should take up and complete
the case within a fixed time schedule so that
the delay is avoided. Thirdly, if the application is
found to be mischievous, or frivolous, or to cover up
negligence or lacunae, it should be rejected with
heavy costs.
x x x x x
21. Ideally, the recording of evidence should be
continuous, followed by arguments, without any
gap. Courts should constantly endeavour to follow
such a time schedule. The amended Code expects
them to do so. If that is done, applications for
adjournments, re-opening, recalling, or interim
measures could be avoided. The more the period of
pendency, the more the number of interlocutory
applications which in turn add to the period of
pendency.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) NO. OF 2016
(CC NO.14061 OF 2016)
GAYATHRI  V M. GIRISH 
Dated:July 27, 2016.

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How virus of seeking adjournment is to be controlled?

In the case at hand, it can indubitably be stated that the defendant-petitioner has acted in a manner to cause colossal insult to justice and to the concept of speedy disposal of civil litigation. We are constrained to say the virus of seeking adjournment has to be controlled. The saying of Gita "Awake!Arise! Oh Partha" is apt here to be stated for guidance of trial courts."

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (C) Nos. 2808 and 2834 of 2016

Decided On: 01.12.2016

 Sumermall Jain and Ors. Vs.Tanushree Dutta

Hon'ble Judges/Coram:

Aparesh Kumar Singh, J.

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Whether judge should remain passive to maintain his neutrality?

 Lord Denning, in the case of Jones v. National Coal Board [1957] 2 QB 55 has observed that:

"In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries."

39. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

40. Lord Denning further observed in the said case of Jones (supra) that "`It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth..."

Reportable

Supreme Court of India

Maria Margadia Sequeria ... vs Erasmo Jack De Sequeria (D) ... on 21 March, 2012

Bench: Dalveer Bhandari, H.L. Dattu, Deepak Verma

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Whether court can impose costs on loosing party as per fees paid by winning party to his Advocate?

There is one more aspect which requires serious consideration. What is the meaning of the words `actual realistic costs' assuming that costs could be awarded on such basis? Whether it can be said that ` 45,28,000/-

said to have been incurred (made up of ` 29,73,000/- paid to Mr. S, Senior Advocate, ` 14,41,000/- paid to Mr. G, Senior Advocate, ` 85,500/- paid to Mr. M, Advocate, ` 16,750/- paid to Mr. V, Advocate and ` 11,750/-

incurred as miscellaneous expenses) was the `actual realistic cost' of an appeal against an interim order in a suit for injunction? The actual realistic cost should have a correlation to costs which are realistic and practical. It  cannot obviously refer to fanciful and whimsical expenditure by parties who have the luxury of engaging a battery of high-charging lawyers. If the logic adopted by the High Court is to be accepted, then the losing party should pay the costs, not with reference to the subject matter of the suit, but with reference to the fee paying capacity of the other side. Let us take the example of a suit for recovery of ` One lakh. If a rich plaintiff wants to put forth his case most effectively, engages a counsel who charges ` One lakh per hearing and the matter involves 30 hearings, should the defendant be made to pay costs of ` 30 lakhs, in a suit for recovery of ` One lakh merely because it is a commercial dispute? In a matter relating to temporary injunction, merely because the court adjourns the matter several times and one side engages a counsel by paying more than a lakh per hearing, should the other side be made to bear such costs? The costs memo filed by the respondents show that ` 45,28,000/- was paid to four counsel? If a rich litigant engages four counsel instead of one, should the defendant pay the fee of four counsel? If a party engages five senior Advocates and five ordinary counsel because he is capable, should the losing party pay the fees of all these counsel? The appeal came up on several occasions, but the final hearing of the appeal was only on a few days and other days were mere appearances. Should the losing party pay for such appearances? If respondents had engaged two senior counsel who charged ` Two lakhs per appearance, should the other side be made liable to pay ` 1.5 crore as costs?

Even if actual costs have to be awarded, it should be realistic which means what a "normal" advocate in a "normal" case of such nature would charge normally in such a case. Mechanically ordering the losing party to pay costs of ` 45,28,000/- in an appeal against grant of a temporary injunction in a pending suit for permanent injunction was unwarranted and contrary to law.

Reportable

Supreme Court of India

Sanjeev Kumar Jain vs Raghubir Saran Charitable Trust & ... on 12 October, 2011

Bench: R.V. Raveendran, A.K. Patnaik

Citation:JT 2011(12)SC 435

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Basic principles to be followed by court while imposing costs on parties

The English civil procedure rules provide that a court in deciding what order, if any, to make in exercising its discretion about costs should have regard to the following circumstances: (a) the conduct of all the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) any payment made into court or admissible offer to settle made by a party which is drawn to the courts attention. `Conduct of the parties' that should be taken note by the court includes : (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the relevant pre-action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim. Similar provisions, with appropriate modifications may enable proper and more realistic costs being awarded. As Section 35 of the Code does not impose any ceiling the desired object can be achieved by the following : (i) courts levying costs, following the result, in all cases (non-levy of costs should be supported by reasons); and (ii) appropriate amendment to Civil Rules of Practice relating to taxation of costs, to make it more realistic in commercial litigation.

Supreme Court of India

Vinod Seth vs Devinder Bajaj & Anr on 5 July, 2010

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Whether court should direct parties to deposit costs in legal services authority?

We would however like to refer to two aspects of the order of the High Court relating to costs. The first is, whether a court, having reached a conclusion that a party deserves to be prosecuted for perjury, should let him off with what it considers to be a stiff penalty by way of costs, on the ground that courts are overburdened with work. We propose to leave open for the present, this question involving moral and ethical issues.

10. The second aspect relates to the recipient of the costs. In para 38 of the impugned judgment, the High Court specifically stated that it had decided to saddle the parties with heavy costs to be paid to the state which spends money on judicial infrastructure. Having said so, in para 39, the High Court directed that the costs should be paid to the Delhi High Court Legal Services Committee. The High Court Legal Services Committee, a statutory authority under the Legal Services Authorities Act, 1987, is not the `state' that spends money on providing judicial infrastructure, referred in the earlier para. Once the Court held that costs had to be paid to the state, it should have directed payment of the costs to the state and not the High Court Legal Services Committee. No litigant should be made to feel that heavy costs are being levied in some cases by Judges to create a corpus or expense fund for the High Court Legal Services Committee or the State Legal Services Authority. While levy of an uniform token sum, as costs payable to the Legal Service Authority/Committee by way of a deterrent fine, in regard to non-compliance with procedural requirements, delays in re-presentation of papers etc. may not be objectionable, levy of huge amounts as costs in selected cases, made payable to the Legal Service Authorities, may invite adverse comments and evoke hostility to legal services in general. We have also come across cases of costs being levied and made payable to some non-party charitable organizations. Levy of such costs should be avoided.

11. The Delhi High Court Legal Services Committee when it receives the sum of Rs. Two Lakhs as costs from the parties, shall make over the same to the state government as directed in para 38 of the impugned judgment. Let a copy of this order be sent to the Delhi Legal Services Committee, for compliance.

Reportable

Supreme Court of India

Ashok Kumar Mittal vs Ram Kumar Gupta & Anr on 9 January, 2009

Bench: R.V. Raveendran, J.M. Panchal

Citation: 2009(2) SCC 656

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When court should not give more than three adjournment?

No. litigant has a right to abuse the procedure provided in the Code of Civil Procedure. 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 proviso to Order XVII Rule 1 Code of Civil Procedure 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 XVII Rule 1 Code of Civil Procedure 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 Order XVII Code of Civil Procedure 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. However, the absence of the lawyer or his non-availability because of professional work in other court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the suit. The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has No. right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit - whether Plaintiff or Defendant - must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril. Insofar as present case is concerned, if the stakes were high, the Plaintiff ought to have been more serious and vigilant in prosecuting the suit and producing its evidence. If despite three opportunities, No. evidence was let in by the Plaintiff, in our view, it deserved No. sympathy in second appeal in exercise of power under Section 100 Code of Civil Procedure. We find No. justification at all for the High Court in upsetting the concurrent judgment of the courts below. The High Court was clearly in error in giving the Plaintiff an opportunity to produce evidence when No. justification for that course existed.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7532 of 2011 (Arising out of SLP (Civil) No. 30105 of 2010)

Decided On: 30.08.2011

 Shiv Cotex Vs.Tirgun Auto Plast P. Ltd. and Ors.

Hon'ble Judges/Coram:
Aftab Alam and R.M. Lodha, JJ.
Citation: (2011) 9 SCC 678

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When it is permissible for court to close side of parties for evidence?

In the present case, no list of witnesses was filed under Rule 1 of Order 16, no application for leave to examine the witness which was named in the list of witnesses was made to the Court. As such, the Court was not required to adjourn the matter. Yet, in the interest of justice, the Court granted adjournments on several occasions to give an opportunity to the plaintiff to examine Mr. Asrani who was not named as a witness in the witness list. The suit is 5 years old and was part heard. Proviso to Sub-rule (2) of Rule 1 of Order 17 provides that when the hearing of the suit has commenced, it shall be continued from day to day. In the present case, the evidence of PW No. 1 was concluded on 22nd March 2010. Under proviso of Sub-rule (2) of Rule 1 of Order 17, the Court should have proceeded day to day but showing indulgence to the petitioner and granted two adjournments before closing evidence of the petitioner plaintiff.I do not see any error committed by the Court in closing the evidence of the plaintiff. There is no merit in the writ petition which is hereby rejected summarily.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3930 of 2010

Decided On: 09.06.2010

M.M. Corporation Vs. The Juhu Vile Parle Development

Hon'ble Judges/Coram:

D.G. Karnik, J.

Citation: (2010) 4 MHLJ 931

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