MIS. SHIV COTEXversusTIRGUN AUTO PLAST P. LTD. & ORS.

                    [2011) 10 S.C.R. 787


                      MIS. SHIV COTEX                               A
                               v.
           TIRGUN AUTO PLAST P. LTD. & ORS.
              {Civil Appeal No. 7532 of 2011)
                      AUGUST 30, 2011
                                                                    B
          [AFTAB ALAM AND R.M. LODHA, JJ.]

     CODE OF CIVIL PROCUDEURE, 1908:

      s. 100 - Second appeal - High court deciding the second       c
 appeal without formulating a question of law - Held: The High
 Court failed to keep in view the constraints of second appeal
 and overlooked the requirement of the second appellate
jurisdiction as provided ins. 100 and that vitiates its decision.

     0. 17 rr. 1and3 (a) r!W. s. 100-Adjournments- Plaintiff D
failed to produce evidence on three dates - Trial court
proceeded in terms of r. 3 and dismissed the suit - First
appellate court dismissed the appeal - However, High Court
allowed the second appeal of the plaintiff and directed the trial
court to decide the suit afresh - Held: The High Court upset        E
the concurrent judgments and decrees of the two courts on
misplaced sympathy and non-existent justification observing
that the stakes in the suit were very high - After the issues
were framed, on three occasions, the trial court fixed the
matter for the plaintiffs evidence but on none of these dates       F
any evidence was let in by it - Plaintiff deserved no sympathy
in second appeal in exercise of power u/s 100 CPC.

      0.17 - r.1, proviso-Adjournments- Held: It is high time
 that courts become sensitive to delays in justice delivery G
system and realize that adjournments do dent the efficacy of
judicial process - The courts, particularly trial courts, must
ensure that on every date of hearing, effective progress takes
place in the suit - Though the court may grant more than
                              787                                   H
    788      SUPREME COURT REPORTS                [2011) 10 S.C.R.


A three adjournments to a party for its evidence but ordinarily
    the cap provided in the proviso to 0. 17, r. 1 should be
    maintained - 'Justifiable cause', means, a cause which is not
    only 'sufficient cause' as contemplated in sub-r. (1) of r.1 but
    a cause wMch makes the request for adjournment by a party
e   during the hearing of the suit beyond three adjournments
    unavoidable and sort of a compelling necessity - Guiding
    factors, indicated - Administration of justice - Adjournments.

         Respondent No.2, the Punjab Financial Corporation
    (the Corporation), in exercise of its power u/s 29 of the
C   State Financial Corporations Act, 1951, took over the
    mortgaged property of respondent no.1 company as it
    had failed to pay the amounts due to the Corporation.
    Respondent no. 1 filed a suit. for declaration and
    mandatory injunction in the Court of Civil Judge (Junior
D   Division), praying, inter alia, that the take over of its assets
    and all subsequent sale proceedings by the Corporation
    be declared illegal, null and void and that the Corporation
    be also directed to restore back the possession of the
    suit property to it. The trial court framed issues and fixed
E   1.11.2006 for evidence of the plaintiff. The plaintiff did not
    adduce any evidence even on the subsequent dates, i.e.,
    2.3.2007 and 10.5.2007. The trial court then proceeded
    under 0. 17 r. 3(a), C.P.C. and dismissed the suit in post
    lunch session on 10.5.2007. Thereafter the Corporation
F   sold the mortgaged property by auction to the appellant
    for Rs. 64.60 lac. The plaintiff filed a civil appeal in the
    Court of Additional District Judge. Subsequently, the
    application for impleadment of the appellant-auction
    purchaser and its partners was allowed. The appeal was
G   dismissed. However, the second appeal filed by the
    plaintiff was allowed and the suit was remanded to the
    trial court for decision afresh. Aggrieved, the auction
    purchaser filed the appeal.

          Allowing the appeal, the Court
H
  SHIV COTEX v. TIRGUN AUTO PLAST P. LTD. &               789
                    ORS.
    HELD: 1. Firstly, the High Court, while deciding the          A
second appeal, failed to adhere to the necessary
requirement of s. 100 CPC and interfered with the
concurrent judgments and decrees of the courts below
without formulating any substantial question of law. The
High Court failed to keep in view the constraints of              B
second appeal and overlooked the requirement of the
second appellate jurisdiction as provided in s. 100 CPC
and that vitiates its decision. [para 13-14] [794-D-H; 795-
G-H]

    Umerkhan v. Bismillabi@ Babula/ Shaikh and Ors. 2011
                                                                  c,
(9) sec 684 - relied on.
      2.1. Second, and equally important, the High Court
upset the concurrent judgments and decrees of the two
courts on misplaced sympathy and non-existent                     D
justification. The High Court observed that the stakes in
the suit being very high, the plaintiff should not be non-
suited on the basis of no evidence. But, it is the plaintiff
alone who is to be blamed for this lapse. As a matter of
fact, the trial court had given more than sufficient              E
opportunity to the plaintiff to produce evidence in support
 of its case. After the issues were framed on July 19, 2006,
on three occasions, the trial court fixed the matter for the
 plaintiff's evidence but on none of these dates any
 evidence was let in by it. In such circumstances, the court      F
cannot be a silent spectator and leave control of the case
 to a party to the case who has decided not to take the
case forward. The case in hand is a case of such
 misplaced sympathy. It is high time that courts become
sensitive to delays in justice delivery system and realize        G
that adjournments do dent the efficacy of judicial process
and if this menace is not controlled adequately, the litigant
public may lose faith in the system sooner than later. The
courts, particularly trial courts, must ensure that on every
date of hearing, effective progress takes place in the suit.,..   H
    790    SUPREME COURT REPORTS             (2011] 10 S.C.R.


A      2.2. 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
B XVII Rule 1 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 should
  be maintained. 'Justifiable cause' means a cause which
c is not only 'sufficient cause' as contemplated in sub-rule
  (1) of Rule 1 of Order XVII 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. The absence of the lawyer or
0 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
E 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. [para
  16] [796-G-H; 797-A-F]
F
       2.3. 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
G own peril. In the instant case, if despite three
  opportunities, no evidence was let in by the plaintiff, it
  deserved no sympathy in second appeal in exercise of
  power u/s 100 CPC. There is no justification at all for the
  High C.ourt in upsetting the concurrent judgment of the
H courts below. The High Court wa~ clearly in error in
  SHIV COTEX v. TIRGUN AUTO PLAST P. LTD. &                 791
                    ORS.

giving the plaintiff an opportunity to produce evidence            A
when no justification for that course existed. The
judgment and order of the High Court is set aside. [para
16-17] [797-F-H; 798-A-B]
                      Case law Reference:
                                                                   B
    2011 (9)   sec 684           relied on            para 13
    CIVIL ARPELLATE JURISDICTION : Civil Appeal No.
7532 of 2011.

     From the Judgment & Order dated 20.9.2010 of the High         C
Court of Punjab & Harayana at Chandigarh in RSA No. 1107
of 2008 (O&M).

    Vinay Kumar Garg, Namrata Singh for the Appellant.
                                                                   D
   Amit Dayal, Deeksha Ladia (for Jyoti Mendiratta) for the
Respondents.

    The Judgment of the Court was delivered by

    R.M. LODHA, J. 1. Leave granted.                               E
     2. The purchaser, who was not party to the suit but
impleaded as 2nd respondent in the first appeal and was
arrayed as such in the second appeal, is the appellant being
aggrieved by the judgment and order of the High Court of F
Punjab and Haryana whereby the Single Judge of that Court
allowed the second appeal preferred by the plaintiff (1st
respondent) and set aside the concurrent judgment and decree
of the courts below and remanded the suit to the trial court for
fresh disposal after giving the plaintiff an opportunity to lead
evidence.                                                        G

     3. In the month of May, 1991, the 1st respondent- Mis.
Tirgun Auto Plast Private Limited - applied to the Punjab
Financial Corporation (for short, 'Corporation') for a term loan
of Rs. 47.60 lac and speclal capital assistance (soft loan) of     H
    792     SUPREME COURT REPORTS                  [2011) 10 S.C.R.

A Rs. 4 lac. The term loan of Rs. 46 lac and soft loan of Rs. 4 lac
  was disbursed by the Corporation to the 1st respondent in the
  month of October, 1991 on execution of the mortgage deed.
  Vide this mortgage deed, the 1st respondent mortgaged its
  various assets in favour of the Corporation. On the 1st
B respondent's failure to pay the due amount along with interest,
  the Corporation on March 19, 1998 took over the mortgaged
  property comprising land, building and machinery in exercise
  of its power under Section 29 of the Stctte Financial
  Corporations Act, 1951 (for short, '1951 Act').
c      4. The 1st respondent (hereinafter referred to as 'plaintiff'),
  on February 17, 2001, filed a suit for declaration, mandatory
  injunction and other reliefs against the Corporation - 2nd
  respondent in the Court of Civil Judge (Junior Division),
  Chandigarh. Inter alia, the plaintiff prayed that the takeover of
D its assets and all subsequent sale proceedings by the
  Corporation be declared illegal, null and void and inoperative;
  the direction be issued to the Corporation to charge interest
  at the rate of 12.5 per cent per annum (prevailing rate) on the
  loan from the date of commencement of production to the date
E of takeover and the Corporation be also directed to restore
  back the possession of the suit property to it.

        5. The Corporation (sole defendant) in the suit traversed
  the plaintiff's claim and set up the plea that plaintiff could not
F pay the due amount under the loan despite repeated notices
  necessitating the action under Section 29 of the 1951 Act. The
  Corporation asserted that fair procedure was followed and no
  illegality was committed by it in proceeding under Section 29
  of the 1951 Act. The Corporation also raised objections
G regarding the maintainability of the suit on the grounds of
  limitation and jurisdiction of the Civil Court.

         6. The trial court having regard to the pleadings of the
    parties framed issues (six in all) on July 19, 2006. Issue no. 1
    was to the following effect:
H
  SHIV COTEX v. TIRGUN AUTO PLAST P. LTD. &                  793
            ORS. [R.M. LODHA, J.]

    "Whether impugned action of defendant is illegal and if it       A
    is proved, whether plaintiff is entitled for decree of
    declaration and mandatory injunction?"

    The burden to prove the above issue was kept on the
p~i~                                                                 B

     7. Thereafter, the suit was fixed for the evidence of the
plaintiff on November 1, 2006. However, no evidence was let
in on that day. The matter was then adjourned for the evidence
of the plaintiff on March 2, 2007. On that day also the plaintiff
did not produce evidence and the matter was adjourned to May         C
10, 2007. On May 10, 2007 again plaintiff did not produce any
evidence. The trial court was, thus, constrained to proceed
under Order XVII Rule 3(a) of the Code of Civil Procedure, 1908
(for short, 'CPC') and passed the following order :
                                                                     D
    "Matter is fixed for conclusion of the plaintiffs evidence
    being last opportunity. No plaintiffs witness is present and
    neither any cogent reason has been put forth for such failure
    fully knowing the fact that today is the third effective
    opportunity for conclusion of plaintiffs evidence. Hence,        E
    matter is ordered to be proceeded under Order 17, Rule
    3(a) C.P.C. and plaintiff's evidence is deemed to be
    closed. Heard. To come up after lunch for orders."

      8. On May 10, 2007 itself in light of the above order, the
trial court dismissed the suit in its post lunch session.            F

     9. After dismissal of the suit, the Corporation sold the
mortgaged property by auction to the appellant for Rs. 64.60
lac (Sixty four lac and sixty thousand only).

     10. Against the judgment and decree of the trial court          G
passed on May 10, 2007, the plaintiff preferred civil appeal in
the court of Additional District Judge, Chandigarh. In the appeal,
the plaintiff made an application on December 21, 2007 for
impleadment of the appellant and its partners as respondent
                                                                     H
    794       SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A   nos. 2 to 5. The application for impleadment was granted and
    the appellant and respondent nos. 3 to 5 herein were added
    as parties.

        11. The Additional District Judge, Chandigarh after
    hearing the parties, dismissed the civil appeal on March 20,
8
    2008.

       12. Being not satisfied with the concurrent judgment and
  decree of the two courts below, the plaintiff preferred second
  appeal before the High Court which, as noticed above, has
C been allowed by the Single Judge on September 20, 2010 and
  the suit has been remanded to the trial court for fresh decision
  in accordance with law.

           13. The judgment of the High Court is gravely flawed and
0   cannot be sustained for more than one reason. In the first place,
    the High Court, while deciding the second appeal, failed to
    adhere to the necessary requirement of Section 100 CPC and
     interfered with the concurrent judgment and decree of the courts
    below without formulating any substantial question of law. The
E   formulation of substantial question of law is a must before the
    second appeal is hea~d and finally disposed of by the High
    Court. This Court has reiterated and restated the legal position
    time out of number that form1:1lation of substantial question of
    law is a condition precedent for entertaining and deciding a
F   second appeal. Recently, in the case of Umerkhan v. Bismillabi
    @ Babula I Shaikh and Ors. (Civil Appeal No. 6034 of 2011)
    decided by us on July 28, 2011, it has been held that the
    judgment of the High Court is rendered patently illegal, if a
    second appeal is heard and judgment and decree appealed
    against is reversed without formulating the substantial question
G   of law. The legal position with regard to second appellate
    jurisdiction of the High Court was stated by us thus:

          "13. In our view, the very jurisdiction of the High Court in
          hearing a second appeal is founded on the formulation of
H         a substantial question of law. The judgment of the High
  SHIV COTEX v. TIRGUN AUJO PLAST P. LTD. &                 795
            ORS. [R.M. LODHA, J.]

    Court is rendered patently illegal, if a second appeal is . A
    heard and judgment and decree appealed against is
    reversed without formulating a substantial question of law.
    The second appellate jurisdiction of the High Court under
    Section 100 is not akin to the appellate jurisdiction under
    Section 96 of the Code; it is restricted to such substantial B
    question or questions of law that may arise from the
    judgment and decree appealed against. As a matter of
    law, a second appeal is entertainable by the High Court
    only upon its satisfaction that a substantial question of law
    is involved in the matter and its formulation thereof. Section C
    100 of the Code provides that the second appeal shall be
    heard on the question so formulated. It is, however, open ·
    to the High Court to reframe substantial question of law or
    frame substantial question of law afresh or hold that no
    substantial question of law is involved at the time of
    hearing the second appeal but reversal of the judgment and 0
    decree passed in appeal by a court subordinate to it in
    exercise of jurisdiction under Section 100 of the Code is
    impermissible without formulating substantial question of
    law and a decision on such question. This Court has been
    bringing to the notice of the High Courts the constraints of E
    Section 100 of the Code and the mandate of the law
     contained in Section 101 that no second appeal shall lie
    except on the ground mentioned in Section 100, yet it
    appears that the fundamental legal position concerning
    jurisdiction of the High Court in second appeal is ignored F
     and overlooked time and again. The present appeal is
    unfortunately one of such matters where High Court
     interfered with the judgment and decree of the first
    appellate court in total disregard of the above legal
    position."                                                     G

     14. Unfortunately, the High Court failed to keep in view the
constraints of second appeal and overlooked the requirement
of the second appellate jurisdiction as provided in Section 100
CPC and that vitiates its decision.
                                                                    H
    . 796    SUPREME COURT REPORTS                   [2011) 10 S.C.R.


A         15. Second, and equally important, the High Court upset
    the concurrent judgment and decree of the two courts on
    misplaced sympathy and non - existent justification. The High
    Court observed that the stakes in the suit being very high, the
    plaintiff should not be non-suited on the basis of no evidence.
8   But, who is to be blamed for this lapse? It, is the plaintiff alone.
    As a matter of fact, the trial court had given '~e than sufficient
    opportunity to the plaintiff to produce evidence in support of its
    case. As noticed above, after the issues were framed-on July
    19, 2006, on three occasions, the trial court fixed the matter
C   for the plaintiff's evidence but on none of these dates any
    evidence was let in by it. What should the court do in such
    circumstances? Is the court obliged to give adjournment after
    adjournment merely because the stakes are high in the dispute?
    Should the court be a silent spectator and leave control 1of the
    case to a party to the case who has decided not to take the
D   case forward? It is sad, but true, that the litigants seek - and
    the courts grant - adjournments at the drop of the hat. In the
    cases where the judges are little pro-active and refuse to
    accede to the requests of unnecessary adjournments, the
    litigants deploy all sorts of methods in protracting the litigation.
E   It is not surprising that civil disputes drag on and on. The
    misplaced sympathy and indulgence by the appellate and
    revisional courts compound the malady further. The case in
    hand is a case of such misplaced sympathy. It is high time that
    courts become sensitive to delays in justice delivery system and
F   realize that adjournments do dent the efficacy of judicial process
    and if this menace is not controlled adequately, the litigant public
    may lose faith in the system sooner than later. The courts,
    particularly trial courts, must ensure that on every date of
    hearing, effective progress takes place in the suit.
G
         16. 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

H
  SHIV COTEX v. TIRGUN AUTO PLAST P. LTD. &                      797
            ORS. [R.M. LODHA, J.]

in proviso to Order XVII Rule 1 CPC is not mandatory and in a            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          B
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          c
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 s.uch
like cause. The list is only illustrative and not exhaustive.
However, the absence of the lawyer or his non-availability               0
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         E
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           F
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. klsofar
as present case is concerned, if the stakes were high, the               G
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
                                                                         H
    798      SUPREME COURT REPORTS                  [2011] JO S.C.R.


A 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 1o produce evidence when no justification for that
    course existed.
B
          17. In the result, the appeal is allowed and judgment and
    order of the High Court passed on September 20, 2010 is set
 _..q~'Tde. There shall be no order as to costs.
    R.P.                                            Appeal allowed.