1. This is a defendants' second appeal from a decree for damages in the sum of Rs. 50/- and injunction restraining the appellants from demolishing a wall AB as shown in the plaint map. The trial court had dismissed the suit and the decree under appeal was passed by the court of the Civil Judge, Rampur on 26th Mar., 1981, on appeal from the trial court's decree, after rejecting the application moved on behalf of the defendants, who were respondents in the appeal before the lower appellate court, by their counsel for adjournment of the hearing of the appeal, on the ground that he was busy in other cases and was unable to attend that court on that day.
2. The lower appellate court's order rejecting the application for adjournment runs thus:
“25-3-81:
Sri K. Chandra for appellant.
The respondent who was present a little while ago is absent now 12-D is an adjournment application by the counsel for the respondent stating that he is busy in other courts and he is unable to attend this court.
Opposed.
Order XVII I empowers the court to grant adjournment on showing sufficient cause, provided that the fact that the pleader of a party is engaged in another court shall not be a ground of adjournment.
Thus ground stated in the adjournment application is not sufficient cause 12-D is rejected.
Proceed ex parte. Heard. Judgment on 26-3-81.
Sd/- Illegible 25-3
3. It is surprising, that Sri K.K Singh, Civil Judge of Rampur who passed the above order on 25th March, 1981, did not notice that O. 17 of the Civil P.C applies to the original trial of a suit, and not to the hearing of an appeal from the trial court's decree in a suit. The procedure for hearing of an appeal is prescribed by O. 41 of the Civil P.C and R. 1 of O. 17 referred to by the learned Civil Judge does not in any manner control the adjournment of the hearing of an appeal from a decree by a court of appeal. Even so, I must add that clause (c) of the proviso to clause (2) of R. 1 of O. 17, has been misinterpreted by the learned Civil Judge. Clause (c) of the proviso to clause (2) does not say or does not prohibit a court from adjourning the hearing of a suit on the ground that the pleader of a party is engaged in another court. That clause has to be read in the context in which it is placed as a clause of the proviso to clause (2) of R. 1. Clause (1) of R. 1 of O. 17 gives the trial court a discretion in the matter of adjournment of the hearing of a suit. That discretion has to be exercised judicially in all the facts and circumstances of the case. Clause (2) of the said rule says that where the hearing has been adjourned, the court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment. This is followed by clause (a) of the proviso which says that “when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.” Then follow clauses (b), (c), (d) and (e). They are apparently independent of each other and of clause (a) of the proviso, but on a true interpretation of their intent and purpose they could properly be applied only when the hearing of a suit has commenced and not to a case when the hearing has not commenced. Even so they are not absolute bars, as clause (d) itself shows that the court still has a discretion and can for ex ptional reasons to be recorded by it, adjourn the hearing beyond the following day. In the adversary system of administration of justice with the assistance of Advocates from either side, which is followed in our courts, it would be putting a party to a great disadvantage if the hearing of a suit or appeal were not to be adjourned in a case where a counsel engaged by that party finds himself unable to appear in the case on a particular day on some personal ground. In my view a request for adjournment made by a counsel for a party on his personal ground should not be normally refused unless the court is satisfied that the request is mala fide and the ground put forth is not true.
4. The respondents were not at fault in this case. The presence of one of the respondents has been noticed by the learned Civil Judge in his order. He could not have engaged another counsel for defending the appeal, when the counsel already engaged, expressed his inability to appear before the learned Civil Judge on that day, when the appeal was taken up for hearing.
5. In Savithri Amma Seethamma v. Aratha Karthy (1983 All LR 233) : ((1983) 1 SCC 401 : AIR 1983 SC 318) it has been held by the Supreme Court that the fact that the appellant could not be present at the hearing of a revision in the High Court because the Advocate engaged by him was occupied in another court, constituted sufficient cause for his non-appearance and for setting aside of the order dismissing the revision for default in appearance. If the cause is sufficient for setting aside a dismissal for default, it is surely sufficient for adjourning the hearing. I accordingly find that the lower appellate court was not justified in the present case in hearing the appeal ex parte on 25th Mar., 1981 and allowing it by judgment dated 26th Mar. 1981.
6. The appeal succeeds and is allowed with costs. The judgment and decree under appeal are set aside. Civil appeal No. 1 of 1981 of the District Court, Rampur, shall stand restored to its original number and be heard afresh in accordance with law.
7. The District Judge. Rampur, is directed to withdraw the appeal to his own court and either to hear and decide it himself or to assign it for hearing to some court of competent jurisdiction in his district other than a court presided over by Mr. K.K Singh Civil Judge, Rampur. 17th Sept., 1983 is fixed for the appearance of the parties in the court of the District Judge for taking further orders about the hearing of the appeal. The appellants are entitled to a refund of the court-fees paid on this appeal under S. 13 of the Court-fees Act and a certificate to that effect shall be issued to them.
8. Appeal allowed.