JUDGMENT Deoki Nandan, J.
1. These two second appeals arise from two suits Nos. 1805 of 1980 and 1886 of 1980 of the Court of Munsif City Kanpur which were consolidated and tried together by the IInd Additional Munsif. Kanpur. The appellants who were the defendants in suit No. 1805 of 1980, which was the leading case, were the plaintiffs in other suit No. 1886 of 1980. Second Appeal Number 868 of 1983 arises from the leading case : Suit No. 1805 of 1980 and the Connected Second Appeal No. 1762 of 1983 arises from other suit No. 1886 of 1980.
2. By judgment dated 19th August, 1982 the trial Court, decreed suit Number 1805 of 1980 and issued a mandatory injunction to the defendants therein, who are the appellants in this Court, to deliver possession to the plaintiff, who is the respondent in this Court, of the open roof on the second floor within 30 days failing which the plaintiff-respondent would be entitled to obtain possession with costs. A further injunction was issued restraining the defendants-appellants perpetually from ejecting, otherwise than in accordance with the procedure prescribed by law, the plaintiff-respondent from the portion in his tenancy. Suit No. 1886 of 1980 was dismissed. The defendants-appellants appealed to the district Court from both the decrees. Their appeals were dismissed and the decrees of the trial Court were confirmed by the Court of the IInd Additional District Judge, Kanpur. Hence these two second appeals.
3. The substantial question of law involved in Second Appeal No. 868 of 1983, as formulated by this Court at the hearing under Order 41, Rule 11 of the Code of Civil Procedure is : "Whether defendants-appellants have had a. reasonable opportunity of leading their evidence and defending the suit.'' The same question is involved mutatis mutandis in Second Appeal No. 1762 of 1983 arising from suit No. 1886 of 1980 where the appellants were the plaintiffs and the respondent was the defendant. The relevant facts are that issues were framed in the leading case on 14th May, 1982 and 5th July, 1982 was fixed for final hearing. On an application by the plaintiff-respondent, the hearing was adjourned to 8th July 1982 on payment of Rs. 10/- as costs. The plaintiff filed an application on 6th July, 1982 for filing certain document. That was ordered to be put up on the date fixed, that is, on 8th July, 1982. On that day the papers filed by the plaintiff were admitted in evidence on payment of Rs. 20/~ as costs, and the defendant was allowed to file papers in rebuttal up to the next date. The issues were also re-cast, and 21st July, 1982 was fixed for the hearing of the suit. The plaintiff-respondent examined himself as P. W. 1, one Abdul Hakim as P. W. 2. and Mohd. Siddiq as P. W. 3 On 21st July, 1982, and closed his evidence. Some application filed by the defendants was rejected. Two papers appear to have been filed by the defendants per list 24-Ga-I and the hearing of the suit was adjourned up to 4th August, 1982 for the defendants' evidence. On 27th July, 1982 an application 56-C2 appears to have been moved on behalf of the plaintiff for keeping the documents under seal on which the trial Court ordered: "Allowed. Steps to be taken within 7 days". There is a note on the margin of the order-sheet under the signature of Mr. B. D. Malviya, Advocate, dated 28th July, 1982, which shows that steps were taken and the documents were kept in seal in his presence. 4th August was declared a holiday and when the case was taken up on 5th August, an application was moved on behalf of the defendants for adjournment of the hearing, on which 10th August, 1982 was fixed for the defendants' evidence. Some application 58-D filed on behalf of the plaintiff was ordered to form part of the file. On 10th August, 1982 the order-sheet records that the case was called out and the two parties appeared. An application 59-D was moved by the defendants for adjournment of the hearing on which it was ordered that the application was allowed for the last time and if the Advocate of the defendants does not appear on that date they should engage another counsel, and that further adjournment will not be allowed. The last sentence of the order says that the suit be put up on 19th August, 1982 for the defendants' evidence. On the margin the notings are:
"19-8-1982 "Sd. Nasir Khan Last opportunity" "Sd/- Illegible "R. Tripathi Ad."
An application 60-D appears to have been moved by the plaintiff thereafter. The order passed in respect thereof was that the case had been adjourned that day and, therefore, the application was rejected.
4. The case was next taken up for hearing on 19th August, 1982. The order sheet of that day is in three parts. The first two parts appear to be written in the hand of the learned Munsif himself while the third part appears to have been written in the hand of the reader. By the first part of the order-sheet an application 61-D made by the defendants-appellants for adjournment of the case was rejected, and 'the defendant Hafiz' was directed to produce his evidence forthwilh. The second part says that the defendant' did not lead any evidence, 'his' evidence was closed and the judgment was thereupon forthwith written and pronounced. The subsequent third part which is in the reader's hand contains the summary of the operative, part of the judgment. It is the propriety of the rejection of the application for adjournment and the closing of the defendants' evidence, and pronouncement of the judgment forthwith against them which has been challenged in this second appeal.
5. The order rejecting the application for adjournment states that both the parties with their lawyers were present;
that 'the defendant Hafiz' had moved an application for adjournment. 'He' alleges that 'he' had engaged Mr. B. D. Malviya as his lawyer that very day on account of which the lawyer could not prepare the case. Objection was raised from the side of the plaintiff Nasir Khan that Mr. B. D. Malviya is the junior of Mr. R. K.
Bajpai and Mr. R. K. Bajpai is the lawyer of 'the defendant Hafiz', therefore, the adjournment wag applied for maliciously with the object of keeping the case pending. After this, the order proceeds on to state that the plaintiff Nasir's evidence was closed on 2lst July, 1982 and when 'the defendants' witnesses did not come on 21st July, 1982, 5th August, 1982 was fixed for the evidence of 'the defendant Hafiz'. On 5th August, 1982 'defendant Hafiz' applied for adjournment on the ground that 'his' lawyer could not prepare the case. The application was allowed and 10th August, 1982 was fixed for the evidence of 'the defendant Hafiz'. On 10th August, 1982, 'defendant Hafiz' again got the case adjourned on account of the persona] difficulty of 'his' lawyer and it was adjourn ed to today's date (19-8-1982). On 10th August, 1982 'defendant Hafiz' was directed that he will not be given another opportunity and if 'his' lawyer was not available 'he' should engage another lawyer. Today (on 19-8-1982) adjournment has again been applied for in this case on behalf of 'the defendant Hafiz' on the personal ground of his lawyer. The re quest for adjournment by 'the defendant' on every date for evidence supported the fact that 'his' application for adjournment was not bona fide. 'He' could have after 10th August, 1982 and before to day (19-8-1982) engaged a new lawyer and got the case prepared but 'He' did not make any such attempt. It was stated from the side of the plaintiff that Mr. B. D. Malviya was the junior of 'the defendants' Advocate Mr. R. K. Bajpai, and he was looking after the case on behalf of 'the defendant' since before.
With these observations the learned Munsif said that in his opinion the adjournment application 61-D was liable to be rejected, and rejecting that application he directed 'the defendant Hafiz' to forthwith produce his evidence. The order-sheet contains the signature of Nasir Khan, the plaintiff, and Shri R. Tripathi, Advocate, and the dated initials of the learned Musif. The signalures of Nasir Khan plaintiff and his advocate Mr. R. Tripathi appear on the margin at the end of this part of the order. This is followed by the second part of the order which shows that 'the defendant' did not lead any evidence, 'his' evidence was closed and the judgment was thereafter written and pronounced, and still thereafter the third part of the order containing the summary of the operative portion of the judgment.
6. The lower appellate court dealt with the point thus:--
"The learned counsel for the appellants who. are the plaintiffs in suit No. 1886-80 and the defendants in case No. 1805/80 argued that sufficient opportunity was not given to him and the order of the learned lower court should not be punitive and relied on 1980 All CJ 570 : (1981 UPLT NOC 129). Reliance has also been placed on 1941 All WR (C. C.) 205 : (AIR 1941 Oudh 561) Ram Dhani v. Nagar Mal that the learned lower court should have allowed opportunity to produce evidence. When the party has already been given sufficient opportunity of producing evidence and deliberately defaults in doing so then the learned lower court has no alternative in a case of injunction to pass an order justified by the circumstances of the case. I, therefore find that the learned lower court has not committed any illegality or irregularity in rejecting the application for adjournment third time because adjournment was sought on 21-7-82, 10-8-82, and again on 19-8-82 and I ignored the adjournment again due to holiday on 4-8-82 for which the defendants also moved an application for adjournment on 5-8-82. If a party has been given sufficient time to produce its evidence then it cannot be heard again to complain that the sufficient opportunity was not afforded to him. The argument of the learned counsel therefore falls to the ground".
7. Having heard learned counsel for the parties in this case and having perused the order-sheet of the court of which a certified photostat copy was filed, as the case was heard, by agreement between the parties, without sending for the record, and having also perused the affidavits of Mr. B. D. Malviya Advocate, for the defendants-appellants and Mr. Sheo Pujan Tewari Advocate for the plaintiff-respondent, as also the statement made by Mr. R. K. Bajpai Advocate at the bar of this Court, I find that the defendants-appellants did not really have a reasonable opportunity of leading evidence in the two connected suits.
8. Of the two cases to which the attention of the lower appellate court was drawn, the first one, reported in 1980 All CJ 570 : (1981 UPLT NOC 129); Dharam Narain v. Munna Lal: was a judgment given by me. It was contended in that case that the past conduct of the appellant showed an attempt to delay the disposal of the suit by a seeking adjournments on one ground or the other. I observed:
"The question was not whether the adjournments of the hearing of the suit allowed to the appellant in the past were rightly granted or not. Once the hearing of the suit was adjourned, one must proceed on the assumption that there was good and sufficient cause for allowing the adjournment. The question was whether the trial court was right in refusing to adjourn the hearing of the suit fixed for 28th October, 1970. That date had been fixed on the appellants application made on 13th October, 1970. The ground for seeking adjournment of the hearing on 13th October. 1970 must have been sufficient for otherwise the court would not have adjourned the hearing up to 28th October, 1970. The court having done so, the applicant only wanted a change of the date fixed for hearing, that is, 28th October. 1970, by moving an application in advance that is, on 17th October, 1970, praying that the date was not convenient to the witnesses of the appellant on account of the Dewali festival. The Judge's note shows that the court ordered the application to be put in the leading suit on 28th October, 1970. That moans that the court did not exercise its mind on the application of 17th October, 1970. Obviously in such a situation the appellant could not have been expected to have brought his witnesses on 28th October, 1970.
When this application for the change of the date was rejected on 28th October, 1970, the appellant obviously had no alternative but to make another application for adjournment on the ground that his witnesses had not come. The appellant could not have compelled the court to pass orders on his application for change of the date, that was made on 17th October, 1970, and the civil courts are not courts of discipline. The civil courts exist to adjudicate upon the disputes between parties which are brought up before them. Their orders should not be punitive. There was no question of the defendants-respondents being prejudiced or being put to loss by the adjournment of the hearing on 28th October, 1970. Their witnesses had already been examined and the adjournment of the hearing by a few days would not have made any difference except for this that the refusal to adjourn the hearing of the case had led to the result that the plaintiffs suit which was filed in the year 1968 had remained undecided on merits even today although 12 years have gone by".
9. In the present case, the respondent having appeared at the admission stage itself, the hearing of the appeal could be taken up within a short time but the refusal of the adjournment of the hearing of the suit on 19th August, 1982, may be for a day or so, to enable the learned counsel for the defendants-appellants to prepare the case would have saved all this delay and expense since 19th August, 1982. Learned counsel for the plaintiff-respondent urged that the facts of Dharam Narain's case were distinguishable inasmuch as an application for the change of the date had been made in that case well before the date fixed for hearing and it could be said that the appellant in that case could not be expected to be ready to lead evidence on 28th October, 1970 when his application moved on 17th October, 1970 praying that the witnesses could not come on account of Dewali festival and that the date 28th October, 1970 may be changed had not been disposed of by the court as soon as it was made but was ordered to be put up on 28th October, 1970 itself. The facts of that case are distinguishable in this respect from the facts of the present case, but it is the principle which matters. In allowing or refusing an application for adjournment of the hearing of a suit, the court has first to ascertain whether the ground on which adjournment is sought is factually correct, and then to see whether it is a fit case for allowing adjournment on that ground. Past conduct of a person may well be taken into account as a circumstance in judging whether what he is now saying is true or false, but the fact that a party has applied for adjournment of the hearing of a case in the past and the adjournment was granted on his application, could be no ground for refusing an adjournment if it is again sought on a ground which could reasonably be said to have prevented or disabled that party from producing his evidence or doing something else which is necessary to be done for the hearing of the case on that particular day. As I observed in Dharam Narain's case the fact that an adjournment was allowed in the past by a court at the instance of a party can be taken to mean that there was good and sufficient ground for adjournment, or that for some reason the court, thought it just to allow the adjournment. Because the court had allowed the adjournment in the past cannot be a ground for refusing the adjournment of the hearing in the present or in the future. The precise ground on which adjournment is sought on a particular date has to be seen, and has to be seen, not with an eye to punish a person for every petty fault or negliggence, but to advance the cause of justice, which required that a court should, in adjudicating upon a dispute which is brought before it, allow the parties a fair opportunity to have their say. In the present adversary system of litigation justice is administered by the courts with the assistance of the bar. The profession of law may have fallen on evil days and the members of the bar may not be observing the high standards, and the traditions, of professional ethics laid down for them. But it is not possible to administer justice and to decide a case in the present setup without the co-operation and the active assistance the bar. It is unfortunate that in the present case two Advocates of Kanpur Bar have filed affidavits against each other and one of them has even questioned the correctness of the record of the proceedings made by the trial court, and the other has been labelled as a purchased affidavit by the opposite-party.
It is regrettable that the members of the bar should have so demeaned themselves. However, it is not necessary to rely upon, or not to rely upon, the contents of those affidavits for the decision of the case. The question is whether the trial court could be said to have afforded a reasonable opportunity to the defendants-appellants to lead their evidence. Let it be assumed that Mr. B. D. Malviya was a junior of Mr. R. K. Bajpai, Advocate. It does not, however, appear from anything said or alleged before me that he had been engaged by the defendants-appellants as their counsel before 19th August, 1982. Mr. R. K. Bajpai who was appearing as the defendants-appellants' counsel since before, stated at the bar of this Court that he was suffering from high blood pressure and could not, do the case on 10th August, 1982 but his condition had improved and he had hoped that he will be able to do the case on 19th August, but his condition became suddenly bad on the evening of the 17th or the morning of 18th August, 1982. The suggestion was that it was only on 18th August, 1982 that Mr. Bajpai realised that he would not be able to do the case on 19th August, 1982 because of his health. The defendants-appellants cannot, therefore, be blamed if they engaged Mr. B. D. Malviya, a junior of Mr. R. K. Bajpai on the spur of moment on 19th August. 1982 when this fact became known to them. This had to be done because of the trial court's order dated 10th August, 1982, whereby the defendants-appellants had been warned that they must engage another counsel if Mr. R. K. Bajpai was not available to do the case on 19th August, 1982.
10. In my view the trial court ought to have realised that a party has to pay fees to an Advocate, and in civil suits the bulk of the fees is realised by Advocates before the commencement of the final hearing. There is nothing to show that Mr. R. K. Bajpai had not also realised the bulk of the fees from the defendants-appellants. The defendants-appellants could not have, under the pre sent system of administration of justice in our country, conducted their case without the assistance of counsel. If the counsel whom a party has engaged falls ill, it is in my view, unjust to require that party to engage another counsel at the spur of the moment, or to suffer the consequences of having the case decided without being heard. The best that the defendants-appellants could do under the circumstances was either to request Mr. Bajpai to have a counsel engaged in his place without having to pay the fees twice over or to ask some one of his juniors to hold the file until he WHS well. Obviously, if Mr. B. D. Malviya was a junior of Mr. R. K. Bajpai, and was assisting him in this case, as suggested by the plaintiff-respondent, although that is denied by the defendants-appellants, Mr. B. D. Malviya was probably the best choice for taking the place of Mr. Bajpai in the court on 19th August, 1982. Mr. B. D. Malviya appears to be a junior lawyer and it has not been suggested that his statement that he was not ready to go on with or conduct the case on 19th August, 1982, was in any manner wrong. It may even be that Mr. R. K. Bajpai was, behind the scene, hoping that if the hearing fixed on 19th August, 1982 was adjourned for a few days he might be able to do the case himself and redeem the trust reposed in him by the defendants-appellants.
11. Learned counsel for the plaintiff-respondent, however, invited my attention to the several clauses of the Proviso to Clause (2) of Rule 1 of Order 17 of the Code of Civil Procedure, and contended that the guidelines laid down by the several clauses of the Proviso showed that the adjournment of the hearing was properly refused by the trial court in this case on 19th August, 1982. Order 17, Rule 1, in its first clause says that "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.". Clause (2) says that "In every such case 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". Clause (a) of the Proviso which follows Clause (2), is confined to a case where the hearing of the suit has commenced and it prescribes that the hearing in such a case "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 OR recorded by it, the adjournment of the hearing beyond the following day is necessary". 21st July 1982 was the date on which the hearing of the suit had commenced. The hearing does not appear to have been adjourned to the 4th August, 1982 at the instance of or on the application of the defendants that day. The order-sheet of 8th July, 1982 shows that the defendants-appellants were allowed time till the next date to file papers in rebuttal of those filed by the plaintiff and admitted that day; and further that after recasting the issues, 21st July, 1982 was fixed for final hearing. After the close of the plaintiff's evidence on 2lst July, 1982 some application made by the defendants-appellants appears to have been rejected, but they filed two papers per list 54-Ga-I and the hearing was adjourned to 4th August, 1982 for the defendants' evidence. The adjournment of the hearing on 21st July. 1982 to 4th August, 1982 was thus not ordered on the request or application of the defendants-appellants and the trial court has not recorded any reasons, not to speak of the exceptional reasons why the adjournment of the hearing beyond the following day became necessary on 21st July, 1982. It appears that the hearing could not take place on 4th August, 1982, as it was declared a holiday for Rakshabandhan. The adjournment of the hearing on 5th August, 1982 which was the date on which the case was next taken up on account of 4th August being a holiday, was but natural and could not be said to have been occasioned On account of the defendants-appellants' inability to produce the evidence on the date fixed, for 5th August, 1982 was not the date fixed for the hearing of the case. The trial court was bound to fix another date, if either of the parties wanted that the case should not be taken up on 5th August, 1982, which was not the date fixed for hearing, but could only be said to be the date on which the parties were expected to find out the date on which the case would be taken up. It is a different matter that if the diary of the court permitted and the parties were ready, the hearing of the case might have proceeded on 5th August, 1982, but speaking technically neither party could be penalised for not being ready for the hearing on 5th August, 1982. Thus the only date on which the adjournment of the hearing could be said to have been really asked for by the defendants-appellants was the 10th August, 1982. The adjournment was allowed. No costs were imposed. That showed that the plaintiff-respondent was not prejudiced by the adjournment and that the ground on which adjournment was sought and allowed was personal to the counsel for the defendants-appellants. The defendants-appellants could not be blamed for the adjournment. The court's direction that they must engage another counsel and that no further adjournment would be allowed on 19th August, 1982, was in my view punitive. Such an order should not be passed except in the last resort, and only when the court is satisfied that the party of his counsel is no( acting fairly, but even so the dictates of justice demand the giving of opportunity. At any rate this order interrorem had its effect, and the defendants-appellants were ready with a new counsel, the best they could think of or arrange in the circumstance, on 19th August, 1982; and the court's order dt. 10th August, 1982 having been complied with by the defendants-appellants, the court should have accommodated the counsel who was so engaged on 19th August, 1982, rather than to penalise the defendants-appellants. The fact that Mr. B. D. Malviya happened to be a junior of Mr. R. K, Bajpai could be no ground for refusing the adjournment.
12. Clause (b) of the Proviso says that "no" adjournment shall be granted at the request of a party except where the circumstances are beyond the control of that party." The fact that a party's counsel falls ill or is unable to attend court or to attend to his case on account of some reason personal to the counsel can be said to be a circumstance beyond the control of that party; Clause (c) of the proviso says that "the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment." That is not the case here I had occasion to deal with this clause in another case, being Second Appeal No. 1053 of 1983: Brahma Swaroop v. Shamsher Bahadur: decided on 21st July, 1983 (reported in AIR 1984 All. 14).
13. Clause (d) says that: "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 grant the ad-
journment unless it is satisfied that the party applying for adjournment could not have, engaged another pleader in time.'' This rule means what it says but it cannot be applied too harshly. So far as the disputed facts of the present case are concerned, Mr. R. K. Bajpai said at the bar of this Court that it was realised by him only on 18th August, 1982 that he will not be able to do the case on 19th August, 1982. There was thus no occasion for the defendant-appellants to think of engaging another counse1 in place of Mr. R. K. Bajpai to do the case on 19th August, 1982. Under the circumstances it is not possible to say that the defendants-appellants were negligent in any manner in engaging Mr. B. D. Malviya as their advocate on 10th August, 1982. Moreover. Mr. B. D. Malviya should have been allowed some time to prepare the case and to take proper instructions for its conduct. That could be achieved by adjourning the hearing for a couple of days or so.
14. As to the last Clause (e) it is impossible to expect a party to examine or cross-examine his witnesses. At any rate the order-sheet does not show that the defendant-appellants' witnesses were not present or that the evidence was not ready. The trial court did not examine the defendant-appellants' witnesses. According to the trial court the defendant Hafiz' was present. It did not proceed to examine "the defendant Hafiz" under Clause (e) of the Proviso, and that clause has therefore, no application to the facts of the present case. I may, however, in this context observe that according to paragraph 7 of the rejoinder-affidavit of Haji Abdul Rasheed, who is the second defendanl-appellant in this case, the first defendant-appellant Haji Abdul Hafeez was in Saudi Arabia and Mr. Malviya was engaged by his father Hafiz Abdul Rasheed who holds a power of attorney from him and was also a witness in the case.
15. I am, therefore of the view that the defend ant-appellants in the leading case did not have a reasonable opportunity of leading their evidence and defending the suit. Both the second appeals are accordingly allowed. The judgments and decrees under appeal are set aside. The order passed by the trial Court on 19th August, 1982 refusing the adjournment of the hearing of the two suits is quashed. The two connected suits number 1805 of 1980 : Nasir Khan v. Haji Abdul Hafiz and another : and Suit number 1886 of 1980 : Haji Abdul Hafiz and another v Nasir Khan : of the Court of City Munsif Kanpur are remanded for further trial from I he stage reached on 10th August, 1982, to be heard and decided in accordance with law after giving the defendants in suit No. 1805 of 1980 and plaintiffs in suit No, 1886 of 1980, an opportunity of leading their oral evidence, and hearing the parties in accordance with law. It shall be open to the District Judge, Kanpur, to assign the further hearing of the case to a munsif having jurisdiction in the matter in his judgeship, other than the one who heard the case on the 10th and 19th August, 1982. The costs shall abide the result.