1 C.M.P. No. 1105 of 2024 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- C.M.P. No. 1105 of 2024 ---- Kalyan Prasad Khowala aged about 77 years son of late Murlidhar Khowala, resident of CJ-246, Salt Lake City, Sector-2, Kolkata 700091, PO Sector-2, PS Salt Lake and District Kolkata …. … Petitioner(s) -- Versus -- 1.Nawal Kishore Khowala, son of late Murlidhar Khowala, at present residing at Near F-52/7 Karunamoyee Housing Estate Tank No.10, Salt Lake City, Bidhannagar, Kolkata, West Bengal 700009 PO, PS Bidhannagar, District Kolkata 2.Dr. Avinash Kumar son of Jayshankar Prasad Singh resident at present Care Diagnostics Castair’s Town, Deoghar, PO, PS and District Deoghar 3.Dr. Sugandha Priyadarshini,wife of Dr. Avinash Kumar at present doing medical practices at Care Diagnostics Castair’s Town, Deoghar, PO, PS and District Deoghar 4.Sharban Kumar Ray son of Yogendra Nath Ray r/o at present Sakin Karnibagh, Mahalaxmi Nagar, Deoghar, PO, PS and District Deoghar 5.Raj Kumar Khowala, aged about 76 years, son of late Murlidhar Khowala, residing at ‘Ashirbad’ Umapati Banerjee Road, Castair’s town, PO,PS and District Deoghar 6.Niranjan Kumar Khowala, aged about 69 years son of late Murlidhar Khowala, residing at ‘Ashirbad’ Umapati Banerjee Road, Castair’s town, PO,PS and District Deoghar 7.Sumitra Devi Khowala, aged about 79 years, wife of late Lakhi Prasad Khowala, residing at ‘Ashirbad’ Umapati Banerjee Road, Castair’s town, 2 C.M.P. No. 1105 of 2024 PO,PS and District Deoghar 8.Smt. Bina Devi Khowala, aged about 71 years wife of Raj Kumar Khowala residing at ‘Ashirbad’ Umapati Banerjee Road, Castair’s town, PO,PS and District Deoghar 9.Smt. Bina Devi Khowala, aged about 69 years wife of Nawal Kishore, r/o CJ-246, Salt Lake City, North 24 Pargana, Kolkata 700091, P.O. Sector II, PS Bidhan Nagar (East ) and District North 24 Pargana 10.Ramesh Kr. Khowala, aged about 57 years son of late Lakhi Prasad Khowala, r/o Umapati Banerjee Road, Near SatnaliBibah Bhawan, Castair’s Town, PO,PS and District Deoghar 11.Umesh Khowala, aged about 51 years s/o late Lakhi Prasad Khowala, r/o Umapati Banerjee Road, Near SatnaliBibah Bhawan, Castair’s Town, Deoghar, PO, PS and Dist. Deoghar 12.Rajesh Kumar Khowala, aged about 51 years, son of late Lakhi Prasad Khowala, r/o Umapati Banerjee Road, Near SatnaliBibah Bhawan, Castair’s Town, Deoghar, PO, PS and Dist. Deoghar 13.Soma Roy Choudhary, wife of late Pijush Roy Choudhary, aged about 73 years, r/o 7A Anand Niyogi Lane, Bagh Bazar, Kolkata 700003, PO, PS Bagh Bazar, Dist. Kolkata 14.Pritam Roy Choudhary, son late Pijush Roy Choudhary, aged about 47 years, r/o 7A Anand Niyogi Lane, Bagh Bazar, Kolkata 700003, PO, PS Bagh Bazar, Dist. Kolkata 15.Paromita Roy Choudhary, d/o Pijush Roy Choudhary, aged about 46 years, r/o 7A Anand Niyogi Lane, Bagh Bazar, Kolkata 700003, PO, PS Bagh Bazar, Dist. Kolkata 16.Mahananda Roy Choudhary, wife of late Pratip Roy Choudhary, aged about 74 years, r/o 67/IA, Ramakant Bose Street, Bagh Bazar Kolkata 700003, PO, PS Bagh Bazar, Dist. Kolkata 3 C.M.P. No. 1105 of 2024 17.Pulak Roy Choudhary, son of late Jitendra Roy Choudhary, aged about 73 years, r/o Flat No.20, 1st Floor, 10, Galif Street, Bagh Bazar, Kolkata 700003, PO, PS Bagh Bazar and Dist. Kolkata 18.Gopa Choudhary, d/o late Jitendra Roy Choudhary, w/o Runa Chakraborty aged about 76 years, r/o 60/6A Gouri Bari Lane, Kolkata 700004, PO, PS Bagh Bazar, District Kolkata. ….. Defendant / Opposite Parties ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner(s) : Mr. Ajit Kumar, Senior Advocate Mr. Sameer Ranjan, Advocate For the O.P.Nos.1 to 12 : Mr. Prashant Pallava, Advocate Mr. Parth Jalan, Advocate Ms. Shivani Jaluka, Advocate ---- 7/25.03.2025 Heard Mr. Ajit Kumar, the learned Senior counsel appearing on behalf of the petitioner and Mr. Prashant Pallava, the learned counsel appearing on behalf of the Opposite party nos.1 to 12. 2. So far as Opposite party nos.13 to 18 are concerned, they have refused to take notice and in view of that, notice upon them has been deemed to be validly served by order dated 19.02.2025 and till date, they have not appeared, and in view of that, this petition is being heard in absence of the Opposite party nos.13 to 18. 3. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 24.09.2024 passed by the learned Civil Judge (Senior Division)-IX, Deoghar, in Original Suit No.03 of 2022 whereby he has been pleased to dismiss the petition dated 12.08.2024 for maintaining the status quo. The further prayer has been made for staying the further proceeding of Original Suit No.03 of 2022 till the disposal of the Civil 4 C.M.P. No. 1105 of 2024 Miscellaneous petition. 4. Mr. Ajit Kumar, the learned Senior counsel appearing on behalf of the petitioner submits that the Original Suit No.3 of 2022 has been instituted by the petitioner/plaintiff for a decree that the agreement of sale is null and void and illegal and further challenge has been made that the family arrangement and settlement dated 02.11.2001 is forged and fabricated and he submits that the Opposite party/defendants have appeared in the suit and have filed their written statement. In the midst of the proceeding, a petition under Order XXXIX Rule 1 and 2 of the CPC was filed for injunction against the suit property and in that petition the learned court has been pleased to grant status-quo by order dated 18.7.2022 with respect to the suit property. He submits that the Opposite party/defendants aggrieved with the said order, filed a petition dated 15.02.2023 for vacating the status-quo order dated 18.7.2022. He then submits that on hearing both the parties, the learned court has been pleased to dismiss the said petition by order dated 08.05.2023. Against that order, the Opposite party/ defendants have moved before this Court in M.A. No.268 of 2023 which has been dismissed by the order dated 07.12.2023. Then, again, a petition under Order XXXIX Rule 1 and 2 of the CPC was filed in the said suit for extension of the status-quo order. By order dated 08.05.2023, six months’ time was allowed for concluding the evidence of the plaintiff within six months from the date of framing of the issues and the observation was there otherwise that the status-quo order will automatically be vacated. In pursuant to that, further petition has been under Order XXXIX Rule 1 and 2 of the CPC for extension of the status-quo was filed which has been rejected by the order dated 24.9.2024 and that order has been made subject matter in the present CMP. He submits that the petitioner/plaintiff has already examined one witness and by way of last witness, he has filed the Chief of the plaintiff himself, however, the cross has not been done by the defendants and in view of that, they have moved an 5 C.M.P. No. 1105 of 2024 application for examination by way of Video Conferencing or by appointing Pleader Commissioner. In this background, he submits that this petition has been filed. He further submits that within the stipulated period, on instruction, the petitioner is ready to be cross-examined by the defendants. 5. Mr. Prashant Pallava, the learned counsel appearing on behalf of the concerned Opposite parties has opposed the prayer and submits that unnecessarily the time is being consumed on behalf of the petitioner/ plaintiff and in spite of there being 100 dates elapsed, the evidence has not been closed as yet in spite of earlier observation by the learned court. He submits that in view of that, the spirit of early disposal of the suit in light of Order XVII of the CPC is being violated. On this ground, he submits that this petition may kindly be dismissed. He relied in the case of Shiv Cotex v. Tirgun Auto Plast P. Ltd and Ors reported in MANU/SC/0991/2011 and placed reliance at paragraph no.16 of the said judgment which is quoted below: “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 in proviso to Order XVII Rule 1 CPC 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 CPC should be maintained. When we say ‘justifiable cause’ what we mean to say is, a cause which is not only ‘sufficient cause’ as 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 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 such like cause. The list is only illustrative and not exhaustive. However, the absence of the lawyer or his non- availability because of professional work in other court or elsewhere 6 C.M.P. No. 1105 of 2024 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 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 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. Insofar as present case is concerned, if the stakes were high, the 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 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 to produce evidence when no justification for that course existed.” 6. Relying on the above judgment, he submits that this petition may kindly be dismissed. 7. In view of above and considering that the suit is pending since the year 2022 and it has been pointed out that 100 dates have been elapsed and further considering that the Chief of the plaintiff has already been filed before the learned court and only dispute is there with regard to cross examination either by Video Conferencing or by appointing Pleader Commissioner, in the interest of justice, it will suffice that if proper order is passed for cross examination of the plaintiff himself. The grounds have been taken in the petition about ill-health etc., however, the Court finds that while at the time of filing of the CMP the affidavit has been sworn in at Ranchi which clearly suggest that he is able to move from one place to another place and further the connectivity of flights are 7 C.M.P. No. 1105 of 2024 also there from the place where he is residing to the place where the suit is pending and the Court is further taking into note the undertaking given by Mr. Ajit Kumar, the learned Senior counsel appearing on behalf of the petitioner, on instruction, that the plaintiff is the last witness whose examination-in-chief has already been filed and only cross-examination is required to be done. 8. In view of above, this petition is being disposed of directing the petitioner/ plaintiff to appear before the learned court for cross examination on the next date fixed on 03.05.2025 and this is on the statement of the learned Senior counsel, on instruction, of the petitioner/ plaintiff. 9. So far as the status-quo order is concerned, that was the subject matter before this court in M.A. No.268 of 2023 wherein at paragraph no.10 and 11, it has been directed as under: “10. In the instant case, in strict sense, injunction order has not been passed, but in order to preserve the suit property from alienation during pendency of the litigation, order of status quo has been passed, which is not likely to prejudice the interest of any of the parties to the suit, especially when the court itself has put a restriction of six months for taking the evidence of plaintiff from the date of settlement of issues and the case is running at the stage of settlement of issues. 11. It is needless to say that at the time of passing any order of injunction, the court is not oblige to go into the merits of the case, which shall be determined after the conclusion of the trial.” 10. To prevent alienation of the suit property, the status-quo will operate till cross-examination on the next date i.e. 03.05.2025 and two weeks further thereafter, and thereafter, if any exigency will be there after two months, it is open to the petitioner to file proper petition before the learned court for extension of the status-quo. 11. This petition is, accordingly, disposed of. 12. Pending petition if any also stands disposed of accordingly. ( Sanjay Kumar Dwivedi, J.) SI/,