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Report No. 163

2.21 Clause 26 of the Amendment Bill.-

This clause of the Amendment Bill seeks to substitute sub-rule (1) of rule 1 of Order XVII and also to amend sub-rule (2).

(i) Sub-rule (1) of rule 1 as sought to be substituted requires the court to record reasons in writing for every adjournment of the hearing of a suit. Furthermore, the proviso places a ceiling upon the number of adjournments which can be granted to a party during the hearing of the suit. Evidently, the adjournment contemplated by this sub-rule is an adjournment granted at the request of a party and not an adjournment occasioned on account of the court not being able to take up the case or any other reason for which the court is not able to take up the case.

Even so, the members of the Bar strongly opposed the proposed amendment while the members of the Bench supported the amendment. One of the suggestions put forward by the participants was that no adjournment shall be granted at the oral request of a party and that every request for adjournment should be made by way of an application. The application should either be verified by the advocate concerned or it should be supported by an affidavit of the party.

Another suggestion put forward was that instead of placing a ceiling upon the number of adjournments which can be granted to a party at its request, awarding of costs should be made obligatory for each such adjournment and that the costs should ascend steeply with every succeeding adjournment. In other words, if the amount of cost awarded for the first adjournment is Rs. 100 the costs to be awarded for the second adjournment should be three hundred and so on.

Yet another suggestion put forward was that where an adjournment was granted with costs, the costs awarded to the other side should be the full costs which are incurred and not an arbitrarily determined figure. By way of example, if in a given case the party brings his witnesses for examination but the other side asks for an adjournment, the full and actual costs incurred by the party for bringing the witnesses and for making all necessary arrangements in that behalf for proceeding with the suit should be reimbursed by the party asking for adjournment.

In this connection it was submitted that clause (e) of the proviso to rule 1 of Order XVII should be amended by substituting the words "may, if it thinks fit" occurring therein with the word "shall"; another view expressed in this behalf was that the words to be substituted ought to be "shall, unless the court records special reasons therefor". The members of the Bench submitted that unless a ceiling is placed upon the number of adjournments which could be granted to a party, prompt disposal of the suits could not be ensured. It was submitted that the members of the Bar bring pressure in several ways upon the courts to grant adjournment.

Very often, the opposing counsel does not oppose the request. Sometimes, a request is made by both the parties, even where the suit is posted for trial and the court feels helpless. Some of the learned trial judges suggested that once the suit was posted for trial and the court was in a position to take it up on that day, no adjournment whatsoever should be granted either at the request of one party or at the joint request of both the parties, unless of course it was a case of a death of a party or some other supervening reason which made the adjournment inevitable.

2.21.1. In this connection, we must mention an interesting discussion which took place at the conference held at Allahabad. In the Allahabad High Court, there is a peculiar practice prevalent over a long number of years according to which a Counsel seeking adjournment on the ground of his illness need not send an application nor is it necessary that the request is made by him or some other counsel on his behalf, in the court. What is being done is that a slip called 'illness slip' is sent to the Court Master/Bench Clerk. On receiving the illness slip the Court Master/Bench Clerk automatically adjourns the case without even bringing it to the notice of the presiding Judge or the Judges constituting the Bench.

The counsel on the other side too is not informed. Admittedly, there have been several instances where an advocate sends such an illness slip in one court of the High Court while he is found arguing or present in another court on the same day. The Judges of the Allahabad High Court strongly pleaded for putting a stop to this unholesome practice which is very often resulting in abuse of process of the court. The members of the Allahabad High Court Bar who were present and participated in the conference tried to justify the said system though they did admit that it was being abused by some advocates.

The Law Commission is of the opinion that this insidious practice must be put an end to. The practice may have originated in some distant past. It is not clear in what circumstances and for what reasons such a practice began. The fact, however, remains that not only is it a practice not sanctioned by the Code, it appeal's to run counter to the very discipline, dignity and decorum of the court. It is high time, it is put an end to. It does not also appear to be prevalent in any other High Court.

2.21.2. In the light of the above discussion, it is obvious that the proposed sub-rule (1) of rule 1 is a highly desirable and salutory step. The sub-rule must, however, be clarified to indicate that the adjournment contemplated by it meant an adjournment granted or to be granted at the request of a party and not an adjournment caused by other reasons. It should further be made obligatory that even for the first, second or third adjournment which may be granted to the party at his request, the other side should be compensated in full for the actual costs incurred by it for that date of hearing. Indeed, this aspect can be said to be implicit in the amendment proposed in sub-rule (2) of rule 1.

There must be a further proviso added to sub-rule (1) to the effect that no adjournment shall be granted on an oral request of a party or in terms of a slip or a letter given by the counsel and that an adjournment shall be granted only on the basis of a written application filed by a party which should either be verified by the counsel for the party or should be supported by an affidavit of the party.

This should be so even where the other side does not object. In a case where joint request is made by both the sides for adjournment, the court should impose costs upon both parties, which can be remitted to the legal aid body of that district or State, as the case may be. In sum, two more provisos should be added to sub-rule (1). The second proviso as proposed by the Law Commission, should say that no adjournment shall be granted except on the basis of a written application which is verified and signed by the counsel for the party or which is supported by an affidavit of the party, the copy whereof is served before hand on the counsel for the opposing parties.

The third proviso should say that an adjournment contemplated by sub-rule is an adjournment granted at the request of the party and not an adjournment granted for other reasons. It is, however, obvious that even where the suit is adjourned for other reasons, the court has to record the reasons for such adjournment as required by proposed sub-rule (1).

(ii) In the light of the above discussion it must be said that the proposed amendment in sub-rule (2) is a welcome step and the Law Commission agrees with the same.



The Code of Civil Procedure (Amendment) Bill, 1997 Back




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