Dismissed

N.Dhanalakshmi v. K.Senthamarai

Madras HC20 Oct 2014SA/2125/2004

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal filed by an octogenarian appellant who repeatedly sought adjournments and appeared in person without counsel when the matter was listed for disposal, finding gross non-prosecution.

What did the court decide?

Appeal dismissed for non-prosecution. Costs of Rs. 2,609 awarded to the respondent.

N.Dhanalakshmi Vs K.Senthamarai — Civil Procedure and Limitation | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 20-10-2014

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CORAM:

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THE HONOURABLE MR. JUSTICE T.MATHIVANAN

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SECOND APPEAL No.2125 of 2004 and

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CMP Nos.801 to 803 of 2013

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N.Dhanalakshmi .. Appellant/Respondent/Defenant.

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vs.

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K.Senthamarai .. Respondent/Appellant/Plaintiff. Second Appeal is preferred under Section 100 CPC against the judgment and decree dated 10.2.2004 on the file of the Additional District Judge-cum-Fast Track Court-I, Erode and made in A.S.No.24 of 2003, reversing the judgment and decree dated 22.7.2003 on the file of the First Additional Subordinate Court, Erode and made in O.S.No.57 of 1996.

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For Appellant : Mrs.N.Dhanalakshmi (Party-in-Person) Appellant's counsel not present. For Respondent : Mr.N.Manokaran J U D G M E N T

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When the appeal is taken up for hearing today, the appellant Mrs.N.Dhanalakshmi has appeared in person and submitted an affidavit sworn in by her. Her counsel has however not present. Mr.N.Manokaran, learned counsel appearing for the respondent is present.

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In paragraph-4 of her affidavit, she has stated that after Pooja Holidays, the Court's Port-Folio was changed to the Hon'ble Mr. Justice S.Tamilvanan and she had engaged a new counsel viz., Mr.Hariharan and Mrs.Sai Lakshmi and gave vakalat to them on 15.10.2014. She has also stated that without her consent, S.A.No.2125 of 2004 is listed before this Court today i.e., on 20.10.2014 as Part-Heard with her former Advocate's name who had already relinquished his vakalat on 23.9.2014. She has also stated that the appeal be referred to Hon'ble The Chief Justice to be posted before some other Judge as she has lost hope, faith and confidence upon this Court.

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It is obvious to note here that this appeal came up before this Bench on 12.8.2014. On 12.8.2014, when the matter was taken up for hearing, Mr.N.Manokaran, learned counsel for the respondent was ready to argue the case. But Mr.K.Annadurai, learned counsel, who was holding vakalat on behalf of the appellant, had submitted that he was going to withdraw his appearance and to that effect, he had also filed a memorandum, saying that in view of his intimation letter sent to the appellant Mrs.N.Dhanalakshmi by R.P.A.D., dated 11.8.2014 and for the reasons stated therein, he had relinquished his vakalat from this matter.

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As it appear from the order dated 12.8.2014, Mr.N.Manokaran, learned counsel for the respondent had vehemently objected for the withdrawal of the appearance made by Mr.K.Annadurai, learned counsel and he had also submitted that the same kind of practice was adopted by the appellant for the past 50 hearings and that previously, this matter was argued before some other Hon'ble Judges, and thereafter, in the midway by adopting the same kind of dilatory tactics, the learned counsel, who was previously appearing for the appellant, had withdrawn his appearance and therefore, he had urged to dismiss the Second Appeal for non-prosecution.

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However, having been taken into consideration of the circumstances developed in this case, this Court had directed the appellant to appear in person on 19.8.2014. Thereafter, the Registry was directed to delete the name of Mr.K.Annadurai former counsel of the appellant and print the name of the appellant in the cause list.

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On 19.8.2014, the appellant Mrs.N.Dhanalakshmi had appeared in person in pursuant to the directions of this Court and presented an affidavit and thereby sought the adjournment of the appeal for a week's time to provide her a fair opportunity to engage a suitable counsel to proceed further. Considering her affidavit dated 19.8.2014, this Court had adjourned the appeal to 26.8.2014.

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On 26.8.2014, one Mr.A.Nister Hakeem, learned counsel had submitted that he had filed his vakalat on behalf of the appellant, but it was returned with an endorsement to get consent from the previous counsel, who was appearing on behalf of the appellent. Under this circumstance, this Court on 26.8.2014 has observed in its order saying that the learned counsel Mr.K.Annadurai, who was previously appearing on behalf of the appellant, had withdrawn his appearance and to that effect he had also filed a memorandum before this Court, which was also recorded and therefore, the question of getting consent from the previous counsel does not arise. Therefore, the Registry was directed to accept the vakalat filed by Mr.A.Nister Hakeem on behalf of the appellant and to list the matter on 8.9.2014.

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On 8.9.2014, this matter was listed. However, it was adjourned on 10.9.2014. On that date, when the appeal was taken up for hearing, the learned counsel appearing for the appellant had

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requested this Court to list the matter on 12.9.2014 finally. Accordingly, this matter stood posted on 12.9.2014 finally with an observation that “otherwise the matter would be dismissed”.

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On that date, on the request made by Mr.A.Nister Hakeem, learned counsel appearing for the appellant, the appeal was listed on 19.9.2014 with a direction to list the appeal at the top of the list. On 19.9.2014, at the request of the appellant, this matter was directed to be listed on 22.9.2014, either for disposal or for dismissal with a strict observation that no further adjournment shall be granted.

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On 22.9.2014, when the appeal was taken up for hearing, Mr.N.Manokaran, learned counsel appearing for the respondent, had filed a memorandum, narrating all the events which took place during the past hearings. According to him, the appeal had been adjourned for so many times as nearly as 50 hearings and even after that, the appellant had been procrastinating the proceedings and thereafter he had urged this Court to dismiss the appeal for the failaure on the part of the appellant to prosecute the appeal.

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In support of his submission, he had also placed reliance upon the decision of the Apex Court in Noor Mohammed vs. Jethanand and Another reported in {2013 (5) SCC 202}. On that date i.e., on 22.9.2014, Mr.M.S.Krishnan, learned Senior Counsel, who had entered appearance on behalf of Mr.A.Nister Hakeem, learned counsel who was on record for the appellant, had submitted that let the appeal be listed on 24.9.2014, so as to enable him to argue the case on behalf of the appellant.

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As it appear from the order of this Court dated 22.9.2014, Mr.N.Manokaran, learned counsel for the respondent had urged this Court that let him be allowed to advance his argument on 23.9.2014, if the appellant is not willing to argue the case on 23.9.2014. Considering the submissions made by Mr.M.S.Krishnan, learned Senior Counsel appearing on behalf of the appellant as well as the submission made by Mr.N.Manokaran, learned counsel appearing for the respondent, this Court was inclined to adjourn the matter to 23.9.2014.

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On 23.9.2014, when the appeal was taken up for hearing, the appellant's counsel was not ready to advance his argument and therefore, Mr.N.Manokaran, learned counsel appearing for the respondent was permitted to argue the case. Accordingly, he had advanced his argument at length for about two hours. The Jnunior Counsel, who was present on behalf of Mr.A.Nister Hakeem, had requested this Court to list the matter on 24.9.2014, so as to enable his learned Senior Counsel to advance his argument on behalf of the appellant. Accordingly, this matter stood posted on 24.9.2014.

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Unfortunately, on that date, when the appeal was taken up for hearing, Mrs.N.Dhanalakshmi, the appellant herein, had appeared in person and presented an affidavit, requesting this Court to grant one week time to enable her to engage a Senior Counsel to argue the Second Appeal. She had also represented before this Court that she was an Octogenerian, nearing her 80s and she had requested the Hon'ble The Chief Justice to fix a time limit to dispose of the Second Appeal and she had also further represented that on the evening of 23.9.2014, she was informed by her counsel to come and appear in person before the Court, as he was going to withdraw his appearance. Then the appellant Mrs.N.Dhanalakshmi had also presented a change of vakalat given by Mr.A.Nister Hakeem, wherein he had stated that he had already handed over the bundle to the appellant.

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As it is seen from the earlier order dated 22.9.2014, this case had been crossing more than 50 hearings and even after passing over of many hearings, the appellant had been postponing her argument for one reason or the other.

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On verification of the records, this Court is able to find that in her letter to the Registry dated 7.8.2014, the appellant had requested the Registrar-Judicial to take necessary steps to fix a time limit for the argument of both sides before starting the arguments on her side in the above Second Appeal in S.A.No.2125 of 2004 or by enlisting the said appeal as a specially ordered case either before the present Judge (before this Bench) to whom the case is posted or before any other Judge, to expedite her appeal since she had completed already 78 years of her age and the present dispute is prolonged from 1996 onwards.

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Apart from this, it is revealed from the second paragraph of her another letter dated 21.7.2014 addressed to the Hon'ble The Chief Justice that this appeal was previously posted before Hon'ble Mr. Justice Rajasuria who had subsequently requested the Hon'ble The Chief Justice to post the above Second Appeal to some other Judge.

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After reopening of the Courts, the appeal was posted before Hon'ble Mr. Justice S.Palanivelu as a specially ordered case, before whom her Senior Counsel had argued for two days. Despite the case was listed before Hon'ble Mr. Justice S.Palanivelu as a specially ordered case, it was posted before Hon'ble Mr. Justice M.Vijayaraghavan.

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It is also revealed from her above letter dated 21.7.2014 that she did not know the reason as to why the case was transferred from Hon'ble Mr.Justice S.Palanivelu to Hon'ble Mr.Justice M.Vijayaraghavan. Thereafter, Hon'ble Mr. Justice M.Vijayaraghavan got retired on attaining his superannuation. Then it was listed before Hon'ble Mr. Justice R.Karuppiah in the month of December, 2013.

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When the matter was listed on 7.2.2014 before Hon'ble Mr. Justice R.Karuppiah for final hearing, her counsel had reported no instructions and also sought the permission of the Court to withdraw his vakalat.

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It is significant to note here that on 7.2.2014, one Mr.K.Suresh, learned counsel, who was appearing on behalf of the appellant Mrs.N.Dhanalakshmi, had filed a memorandum before the Hon'ble Mr. Justice R.Karuppiah saying that he withdrew his vakalat as the party had recveived the bundle. His memo was recorded.

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It is also revealed from the letter dated 21.7.2014 submitted by the appellant that the appeal was again posted on 10.2.2014 and a memo was also filed by her counsel regarding his withdrawal from the appearance. In this connection, she had stated that she did not know as to why her counsel acted like that and the reasons would have been known to themselves.

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The above letter also reveals that consequently the Court had sent her a notice to appoint a counsel to proceed the case. Accordingly, she had appointed a counsel on her behalf and the case was listed on 4.3.2014 for final hearing before Hon'ble Tmt. Justice S.Vimala.

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On 18.3.2014, when the matter was listed before Hon'ble Tmt. Justice S.Vimala, the appellant's Senior Counsel had started his argument and he had completed his argument on 28.4.2014. Then the appeal was listed on 4.6.2014 i.e., after Summer Vacation.

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On 11.6.2014, when the matter came up for hearing before Hon'ble Tmt. Justice S.Vimala, the respondent's counsel had withdrawn his vakalat and therefore the case was listed on 17.6.2014. On 17.6.2014, on the request made by the learned counsel for the respondent, a notice was ordered to be sent to the respondent, directing her to appear before the Court on 2.7.2014.

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It is also revealed from her letter dated 21.7.2014 that though the hearing of the Second Appeal in S.A.No.2125 of 2004 was listed from the middle of February 2013 till this date, it has not come to an end. She has also stated that her Senior Counsel had argued two times before two Hon'ble Judges. But the respondent was not ready to putforth her argument and dragging on the proceedings by diplomatic tactics. She has therefore put the blame upon the respondent and further she has stated at page No.5 of her letter dated 21.7.2014 that during her age-old position and her financial crisis, she had made arrangements to purforth her argument through her Senior Counsel for two times before the two learned Judges. However, she is not in a position to get justice.

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It is also revealed from her letter that the above Second Appeal is now listed on 25.7.2014 before this Bench, which is the sixth Court to hear her appeal. She has also stated that she has to re-open her argument for the third time. By this state of affairs, she was mentally and financially highly affected. To avoid these happenings, the above case might be listed before the Judge to whom she had putforth the entire arguments on her side through her Senior Counsel and since it is a Part-Heard case. She has also stated that if not, she requested the Hon'ble The Chief Justice to frame a time limit to dispose of the above Second Appeal, within a stipulated period by the present Presiding Judge, so that the respondent could be compelled to putforth her arguments in the abovesaid Second Appeal, to enable her to get justice before the Presiding Judge or otherwise she would be put into hardship and mental agony and she has to argue the case again and again before various Judges.

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In the coclusion paragraph of her letter, she has also requested the Hon'ble The Chief Justice, at least to fix a time limit to the respondent to putforth her arguments before the present Presiding Judge, to make an end to this prolonged dispute eversince from 1996.

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Only based on her above letter dated 21.7.2014 and the other letter addressed to the Registrar-Judicial as well as to the Hon'ble The Chief Justice, this Court had been insisting both the parties to advance their respective arguments.

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In the order of this Court dated 24.9.2014, in paragraph No.17, while adjourning the appeal on 7.10.2014 for advancing arguments on the side of the appellant, this Court has specifically observed that “even on the adjourned date if the appellant fails to argue the appeal, it is made clear that no further adjournment would be given excepting to dismiss the appeal”.

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But as aforestated, in the opening paragraph, no counsel is appearing today i.e., on 20.10.2014 when the appeal is taken up for hearing. But the appellant has appeared in person and presented an affidavit requesting that to transfer the appeal before some other Judge as she has lost the trust, confidence and faith upon this Court. This is not discernible. Searching for a ground to play cannot be accepted in dispensation of justice system.

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In Shiv Cotex vs. Tirgun Auto Plast (P) Ltd {(2011) 9 SCC 678 : (2011) 4 SCC (Civ.) 817}, the Apex Court has raised the following two crucial questions with regard to granting of adjournment after adjournment:-

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(i) Is the Court obliged to give adjournment after adjournment merely because the stakes are high in the dispute?

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(ii) Should the Court be silent spectator and leave control of the case to a party to the case who has decided not to take the case forward?

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The answer of the Apex Court has been extracted in paragraph No.52.

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In this connection, this Court finds it better to have reference to the provisions of Sub-Rules (1) and (2) of Rule 16 to Order 41 of the Code of Civil Procedure. Rule 16 of Order 41 deals with right to begin. Sub-Rules (1) and (2) enact as under:-

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“(1) On the day fixed, or on any other day to which the hearing may be adjourned, [A] the appellant shall be heard in support of the appeal.

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(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case, the appellant shall be entitled to reply”.

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Sub-Rules (1) and (2) of Rule 1 of Order 17 also assume more importance. Order 17 of CPC deals with adjournments. Rule 1 envisages that the Court may grant time and adjourn the hearing. Sub-Rule (1) has been substituted by the CPC (Amendment) Act, 1999 (46 of 1999) Section 26 with effect from 1.7.2002 vide Notification S.O.603 (E), dated 6.6.2002.

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Sub-Rule (1) to Rule 1 contemplates 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 for reasons to be recorded in writing:

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Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.

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Sub-Rule (2) to Rule 1 of Order 17 deals with costs of adjournment. It enacts that in every such case, the Court shall fix a day for the further hearing of the suit (shall make such orders as to cost occasioned by the adjournment or such higher costs as the Court deems fit). It is substituted for the words 'may make such order as it thinks fit with respect to the costs occasioned by the adjournment'by the CPC (Amendment) Act, 1999 (46 of 1999), Section 26 with effect from 1.7.2002 vide Notification S.O.603(E), dated 6.6.2002.

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Clauses (b), (c) and (d) of the proviso to Sub-Rule (2) reads as under:-

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“(b) No adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

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(d) 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 adjournment unless it is satisfied that the party applying for adjournment could not have engaged another Pleader in time”.

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As observed by the Orissa High Court in Makbul vs. Sidik {AIR 1966 Orissa 41}, adjournment is entirely discretionary but the discretion must be exercised in a judicial and reasonable manner annd not arbitrarily or with capriciousness.

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Proviso to Sub-Rule (1) to Rule 1 of Order 17 is very clear that the number of adjournments have been restricted to three times only during the hearing of the suit. Even the three adjournments cannot be claimed as of right, as the adjournment is in the discretion of the Court and cannot be claimed as of right. This proposition has been laid down by the Division Bench of Allahabad High Court in Chandra Prakash Ojha vs. District Judge, Barielly {AIR 2004 All. 204}.

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Rule 17 of Order 41 deals with the dismissal of appeal for appellant's default. Sub-Rule (1) where [A] on the date fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

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In Ganesh vs. Baikunthesh {AIR 1951 Pat. 291}, it has been observed that when appellant's Pleader withdraws after refusal of adjournment, the dismissal is for default.

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In Balaram vs. Harakh {AIR 1949 All. 754}, it has been observed that when Pleader withdraws saying 'no instruction', dismissal is on merits.

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Rule 11 of Order 41 deals with the power to dismiss appeal without sending notice to Lower Court. Ruel 11(A) of Order 41 prescribes the time within which hearing under Rule 11 should be concluded. It enacts that every appeal shall be heard under Rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed.

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Rule 12 of Order 41 says that unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal.

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Sub-Rule (2) to Rule 12 {substituted by the CPC (Amendment) Act, 1999 (46 of 1999), Section 31 with effect from 1.7.2002} envisages that such day shall be fixed with reference to the current business of the Court.

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In this Connection, this Court would like to place reliance upon the decision in Noor Mohammed vs. Jethanand and Another {2013 (5) SCC 202}. While speaking on behalf of the Division Bench of the Apex Court, Hon'ble Mr. Justice Dipak Misra, in the opening paragraph, has observed as under:-

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“In a democratic body polity which is governed by a written Constitution and where Rule of Law is paramount, judiciary is regarded as sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied.”

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In the above cited case, the Second Appeal therein was filed in the year 2001 and was travelled for more than 10 years. His Lordship has also extracted the order of the learned single Judge of Rajasthan High Court dated 27.4.2011 with reference to the procrastination of the hearing of the Second Appeal in the following manner:-

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“The matter is being adjourned almost on every occasions in the last ten years to accommodate the counsel regardless of the sufficient cause and only on mere request.

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Even today the counsel is engaged for the appellant has not appeared. Another counsel got up and said that the counsel engaged is not well and, therefore, the case be adjourned.

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I could have dismissed the appeal for want of prosecution but I prefer not to do so because it does not serve anybody's purpose. With extreme reluctance and against my conscience and with a view to do substantial justice to the appellant to give right of audience, I am constrained to adjourn the case to accommodate the counsel (though I am not supposed to) and list the appeal for admission in the next week.”

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In paragraph No.12 of the abovesaid decision, His Lordship has observed as under:-

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“The proceedings in the second appeal before the High Court, if we allow ourselves to say so, epitomizes the corrosive effect that adjournments can have on a litigation and how a lis can get entangled in the tentacles of an octopus. The philosophy of justice, the role of a lawyer and the court, the obligation of a litigant and all legislative commands, the nobility of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make way for apathy and indifference when delay of the present nature takes place, for procrastination on the part of anyone destroys the values of life and creates a catastrophic turbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralyzed by adjournments and non-demonstration of due diligence to deal with the matter. One cannot be oblivious to the feeling necessities of the time. No one can afford to sit in an ivory tower. Neither a Judge nor a lawyer can ignore "the total push and pressure of the cosmos". It is devastating to expect infinite patience. Change of attitude is the warrant and command of the day.”

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His Lordship has also made reference the quote of Benjamin N.Cardozo, in his Book “The Nature of Judicial Process” (Cosimo Inc., 2009) 73, saying that "It is true, I think, today in every department of law that the social value of a rule has become a test of growing power and importance".

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His Lordship has also observed in paragraph No.13 as under:“It has to be kept in mind that the time of leisure has to be given a decent burial. The sooner it takes place, the better it is. It is the

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obligation of the present generation to march with the time and remind oneself every moment that rule of law is the centripodal concern and delay in delineation and disposal of cases injects an artificial virus and becomes a vitiating element. The unfortunate characteristics of endemic delays have to be avoided at any cost. One has to bear in mind that this is the day, this is the hour and this is the moment, when all soldiers of law fight from the path. One has to remind oneself of the great saying, "Awake, Arise, 'O' Partha”.

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Prior to the conclusion of the following order, this Court finds that it would be more suitable to refer the decision of the Apex Court in Shiv Cotex vs. Tirgun Auto Plast (P) Ltd {(2011) 9 SCC 678 : (2011) 4 SCC (Civ.) 817}. In fact, the above decision is dealing with the judgment passed by the High Court in a Second Appeal wherein the High Court had not formulated any substantial question of law and further allowed the Second Appeal preferred by the plaintiff solely on the ground that the stakes were high and the plaintiff should have been non-suited on the basis of no evidence.

¶88

In paragraphs 14, 15, 16 and 17 of the above cited decision viz., Shiv Cotex case, the Apex Court has observed as under:-

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“14. .......Is the Court obliged to give adjournment after adjournment merely because the stakes are high in the dispute? Should the court be silent spectator and leave control of the case to a party to the case who has decided not to take the case forward?” Thereafter, the Court proceeded to answer thus: (Shiv Cotex {(2011) 9 SCC 678 : (2011) 4 SCC (Civ) 817} –

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“15. 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 proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. 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 realise that adjournments do dent the efficacy of the judicial process and if this menace is not controlled adequately, the litigant

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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.

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No litigant has a right to abuse the procedure provided in CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system.”

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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 the plaintiff or the 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."

¶95

After making reference to catena of cases, in paragraphs 28 and 32, His Lordship has observed as under:-

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“28. In a democratic set up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effectpotentiality to bring in a state of cataclysm where justice may become a casuality. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice dispensation system cannot be allowed to remotely conceive of a casual approach.

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Coming to the proceedings before the High Court from the date of presentation of the second appeal till the date of admission, the manner in which it has progressed is not only perplexing but also shocking. We are inclined to think that the Court should not have shown indulgence of such magnitude by adjourning the matter when the counsel for the appellant was not present. It is difficult to envision why the Court directed fresh notice to the appellant when there was nothing suggestive for passing of such an order. The matter should have been dealt with taking a recourse to the provisions in the Code of Civil Procedure. It is also astonishing that the lawyers sought adjournments in a routine manner and the court also acceded to such prayers. When the matter stood dismissed, though an application for restoration was filed, yet it was listed after a long lapse of time. Adding to the misery, the concerned official took his own time to put the file in order. From the Registrar General's communication it is perceptible that some disciplinary action has been initiated against the erring official. That is another matter and we do not intend to say anything in that regard. But the fact that cannot be brushed aside is that there is enormous delay in dealing with the case. Had timely effort been made and due concern bestowed, it could have been avoided. There may be cases where delay may be unavoidable. We do not intend to give illustrations, for facts in the said cases shall speak for themselves”.

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In the conclusion paragraph i.e., paragraph No.34, His Lordship has also observed as under:-

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“34. .. .. .. .. .. .. ... .. ..

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It is also expected from the lawyers' community to see that delay is avoided. A concerted effort is bound to give results. Therefore, we request the learned Chief Justice of the High Court of Rajasthan as well as the other learned Chief Justices to conceive and adopt a mechanism, regard being had to the priority of cases, to avoid such inordinate delays in matters which can really be dealt with in an expeditious manner. Putting a step forward is a step towards the destination. A sensible individual inspiration and a committed collective endeavour would indubitably help in this regard. Neither less, nor more”.

¶103

As has been observed by the Apex Court in Noor Mohammed, cited supra, access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right.

¶104

On coming to the instant case on hand, though the appellant, in her letters referred to in the foregoing paragraphs, has stated that a time limit be fixed to dispose the appeal, by her own conduct, she makes herself a reason for the procrastination of the appeal and she herself had obtained so many adjournments for the reasons best known to her. She had obtained unnecessary adjournments deploying all sorts of methods in protracting the litigation.

¶105

Therefore, this Court finds that the various devices invented by the appellant to get adjournment after adjournment cannot be admissible or countenanced as the right of the respondent is depending upon the result of the appeal.

¶106

Keeping in view of the above fact, this Court finds that there is no other go for this Court excepting to dismiss this appeal for non-prosecution, despite several chances were given to the appellant.

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In the result, this Second Appeal is dismissed for nonprosecution with the cost of the respondent. Consequently, connected miscellaneous petitions are also dismissed.

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https://hcservices.ecourts.gov.in/hcservices/

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MEMORANDUM OF COSTS

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SA.No.2125 OF 2004

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Appellants/Petitioners( ) Costs

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Rs. P. Stamp for Vakalatnama 10 . 00 Do. used for the Memo 2401 . 00 Do. for do.of the lower Court(1 Appellant Court Judgment & Decree) 10 . 00 Do.for do. of the (Trial Court Judgment & Decree) 10 . 00 Do.for enclosures 158 . 00 Value of copy Stamp-paper used for enclosures --Advocate's Fee on Rupees F.C Not received Nil Batta and Postage 20 . 00 Translation and Printing/Typing charges ------------Total 2609 . 00 -----------

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To be paid to the (Respondents by the Appellant a sum of Rs.2,609/- (Rupees two thousand six hundred and nine only) towards costs

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