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CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

ADJOURNMENTS

SUBMITTED TO: DR. B.R.N SARMA

(FACULTY OF CODE OF CIVIL PROCEDURE )

SUBMITTED BY: PRIYA JHA (1419)

[3RD YEAR, 5TH SEMESTER ]

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ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have ever
faced. Though this project has been presented by me but there are many people
who remained in veil, who gave their all support and helped me to complete this
project.

First of all I am very grateful to my subject teacher without the kind support and
help of whom the completion of the project was a herculean task for me. He
donated his valuable time from his busy schedule to help me to complete this
project and suggested me from where and how to collect information and data.

I am very thankful to the librarian who provided me several books on this topic
which proved beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which
was very useful and could not be ignored in writing the project. I want to
convey a most sincere thanks to my parents for helping me throughout the
project.

PRIYA JHA

ROLL NO. 1419

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TABLE OF CONTENTS

Page
TITLE Number

Introduction 4-5

Order xvii Rule 1 6-8

General Principles relating to Adjournment 9-10

Adjournments in Civil Proceedings 11-14
Introductory Remarks 15-17
Determination of grant of Adjournment 18-23
Conclusion 24
Bibliography 25
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INTRODUCTION

In a case of M/S Shiv Cotex vs Tirgun Auto Plast P.Ltd.& Ors on 30 August, 2011 in
Civil Appeal1 Hon'ble Lordships of our Apex Court have observed that,
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. It is not surprising that civil disputes drag
on and on.
It is high time that courts become sensitive to delays in justice delivery system and
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.(para 15) 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 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

1 No. 7532 of 2011 reported in 2011 AIR SCW page 5789 : 2012 Mh. L. J. 439
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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.
The court has both an inherent power: Sydney City Council v Ke-Su Investments Pty Ltd
(1985)2 1 ; and a specific statutory power under s 66 of the CPA, to adjourn the hearing
of any matter in appropriate circumstances.

This power must be exercised in accordance with the overriding purpose of the CPA and
the UCPR of facilitating the just, quick and cheap resolution of the real issues in the
proceedings (CPA s 56(1)); and in accordance with the dictates of justice: s 58 of
the CPA.

SOURCES OF DATA: The following sources of data have been used in the completion
of this project:

 Secondary Sources: Articles, Books, Websites.

SCOPE AND LIMITATIONS:

Though this is an immense project and pages can be written over the topic due to
monetary and time concerns I could not deal with the topic in greater detail.

HYPOTHESIS:

Adjournments dent the efficacy of judicial process and leads to delay in justice delivery
system.

2 1 NSWLR 246 at 252

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ORDER XVII RULE 1

Court may grant time and adjourn hearing.- (1) 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:

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

(2) Costs of adjournment—in every such case the court shall fix a day for the further
hearing of the suit, and shall make such orders as to costs occasioned by the adjournment
or such higher costs as the court deems fits:

Provided that,—

(a) when the hearing of the suit has commenced, it shall be continued from day-to-day
until all the witnesses in attendance have been examined, unless the court finds that, for
the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the
following day is necessary,

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

(c) the fact that the pleader of a party is engaged in another court, shall not be a ground
for adjournment,

(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,

(e) where a witness is present in court but a party or his pleader is not present or the
party or his pleader, though present in court, is not ready to examine or cross-examine
the witness, the court may, if it thinks fit, record the statement of the witness and pass
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such orders as it thinks fit dispensing with the examination in chief or cross-examination
of the witness, as the case may be, by the party or his pleader not present or not ready as
aforesaid.

HIGH COURT AMENDMENTS

Allahabad.- Add the following further proviso:

‘Provided further that no such adjournment shall be granted for the purpose of calling a
witness not previously summoned or named, nor shall any adjournment be utilised by
any party for such purpose, unless the Judge has made an order in writing under the
proviso to Order -XVI, Rule 1.’

Bombay.- In Order XVII. for the existing Rule 1 and its marginal notes, substitute the
following as Rule 1 and marginal notes:

“1. Court may grant time and adjourn hearing.— (1) 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;

Provided that where a case is fixed for taking evidence, the Court shall record the
evidence of all the witnesses present for either party unless the Court hearing the case for
reasons to be recorded in writing finds it necessary to adjourn the se.

(2) Costs of adjournment.— 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, ordinarily not exceeding fifty rupees in ordinary suits
and one hundred rupees in special suits:

Provided that, when the hearing of evidence has once begun, the hearing of the suit shall
be continued from day to day until all the witnesses in attendance have been examined,
unless the Court finds the adjournment of the hearing beyond the following day to be
necessary for reasons to be recorded.’
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Punjab, Himachal Pradesh, Delhi.-

(1) Add the following at the beginning of sub-rule(1):

“Subject to the provision of Order XXIII, Rule 3.”

(2) Add the following as sub-rule (3):

“(3) Where sufficient cause is not shown for the grant of an adjournment under sub-rule
(1) the Court shall proceed with the suit forthwith.” (As amended on 21.7.1937).

Procedure if parties fail to appear on day fixed

Where, on any day to which the hearing of the suit is adjourned, the parties or any of them
fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in
that behalf by Order IX or make such other order as it thinks fit.

[Explanation.-Where the evidence or a substantial portion of the evidence of any party has
already been recorded and such party fails to appear on any day to which the hearing of the
suit is adjourned, the Court may, in its discretion, proceed with the case as if such party
were present.]

Court may proceed notwithstanding either party fails to produce evidence, etc.

Where any party to a suit to whom time has been granted fails to produce his evidence, or
to cause the attendance of his witnesses, or to perform any other act necessary to the further
progress of the suit, for which time has been allowed, [the Court may, notwithstanding such
default,-

(a) if the parties are present, proceed to decide the suit forthwith, or

(b) if the parties are, or any of them is, absent, proceed under rule 2].
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General principles relating to adjournments

In determining whether an adjournment should be granted, the court is not confined to

applying the general traditional view that regard is only to be had to the interests of the
litigants in the particular case, but should also take into account the effect of an adjournment
on court resources; the competing claims of litigants in other cases awaiting hearing in the
particular list; the working of the listing system of the particular court or list; and the
importance in the proper working of that system of adherence to dates fixed for hearing.

(i) In relation to criminal proceedings3, provides that a court may adjourn the hearing of a
criminal proceeding before the court (a) to any time and place; and (b) for any purpose; and
(c) on any terms as to costs or otherwise that it considers appropriate.

(ii) In relation to civil proceedings, the Court's power must be exercised in accordance with
the overarching purpose of s7 of the Civil Procedure Act 2010 ('CPA') and the rules of court
in relation to civil proceedings, of facilitating the just, efficient, timely and cost-effective
resolution of the real issues in dispute. Section 8 of the CPA provides that a court must seek
to give effect to this overarching purpose in the exercise of any of its powers, or in the
interpretation of those powers, whether those powers are part of the court's implied
jurisdiction or statutory jurisdiction or arise from or are derived from the common law or any
procedural rules or practices of the court.
(a) In Sali v SPC Limited & Anor4 , the High Court considered the decision of the Court of
Appeal in Maxwell’s case5 it said:
“In Maxwell v Keun the English Court of Appeal held that although an appellate court will be
slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if
the refusal will result in a denial of justice to the applicant and the adjournment will not result
in any injustice to any other party. That proposition has since become fi rmly established and
has been applied by appellate courts on many occasions. Moreover, the judgment of Atkin LJ
in Maxwell has also been taken to establish a further proposition, an adjournment which, if

3
s331 of the Criminal Procedure Act 2009
4
HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841,
5 [1928] 1 KB 645; [1927] All ER 335. At CLR page 843
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refused, would result in a serious injustice to the applicant should only be refused if that is the
only way that justice can be done to another party in the action.
However, both propositions were formulated when court lists were not as congested as they
are today and the concept of case management had not developed into the sophisticated art
that it has now become. In determining whether to grant an adjournment the judge of a busy
court is entitled to consider the effect of an adjournment on court resources and the
competing claims by litigants in other cases awaiting hearing in the court as well as the
interests of the parties.
As Deane J pointed out in Squire v Rogers6 this may require knowledge of the working of
the listing system of the particular court or judge and the importance and the proper working
of that system of adherence to dates fixed for hearing. What might be perceived as an
injustice to a party when considered only in the context of an action between parties may not
be so when considered in a context which includes the claims of other litigants and the public
interest in achieving the most effi cient use of court resources.”
(b) The appeal with which the Court of Appeal was concerned in Maxwell v Keun arose out
of an order refusing the plaintiff an adjournment of the hearing of his libel action. The ground
of the application was that if the action was heard on the date fi xed for the trial, the plaintiff,
who was serving with his regiment in India, would be unable to be present, and that his claim
could not be established in his absence. Lawrence LJ [at 659] said:
“Further it is plain that if he is not present at the trial his case must fail, in other words, he
will not have had an opportunity of having his case properly tried and thus of obtaining
justice. I will assume for this purpose that his advisers committed an error of judgment in
applying for the postponement of the trial at the time when they did, and that they ought to
have applied some weeks earlier. I cannot myself think that the penalty for that error of
judgment is that the plaintiff should not have his case properly tried. I have heard no word
said on behalf of the defendants that they will in any way be prejudiced by the case being
postponed until next term, and there is no evidence whatever that they will be prejudicially
affected by such a postponement. It seems to me that, in those circumstances, it would be
denying justice to the plaintiff if his case were allowed to remain in the list of cases to be
heard this term.”

6
[1979] FCA 48; (1979) 39 FLR 106; (1979) 27 ALR 330
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Adjournment in Civil Proceedings

(i) In relation to civil proceedings, the Court's power must be exercised in accordance with
the overarching purpose of s7 of the Civil Procedure Act 2010 ('CPA') and the rules of court
in relation to civil proceedings, of facilitating the just, efficient, timely and cost-effective
resolution of the real issues in dispute. Section 8 of the CPA provides that a court must seek
to give effect to this overarching purpose in the exercise of any of its powers, or in the
interpretation of those powers, whether those powers are part of the court's implied
jurisdiction or statutory jurisdiction or arise from or are derived from the common law or any
procedural rules or practices of the court.

(ii) Section 128 of the Magistrates’ Court Act 1989 provides that the Court may, on the
application of a party to a proceeding other than a criminal proceeding or without any such
application, adjourn the hearing of the proceeding to such times and places; and for such
purposes; and on such terms as to costs or otherwise as it considers necessary or just in the
circumstances. If the Court has adjourned the hearing of a proceeding to a particular time, it
may order that the hearing be held or resumed before that time. However, the Court may only
make such an order with the consent of all the parties or on the application of a party who has
given reasonable notice of the application to the other party or parties.

(iii) Rule 46.06 of the Magistrates' Court General Civil Procedure Rules 2010 provides that
the Court may adjourn the hearing of an application on such terms as it thinks fit.

(a) Defendant’s principal witness overseas for two months

When determining an application for an adjournment, the relevant consideration is not a
conclusion about the strength or existence of a defence but whether a fair opportunity has
been given to a party to avail itself of the services of the court to determine the validity or
strength of the case which that party wishes put before the court.
Where, in civil proceedings, a defendant’s principal witness was overseas on the first return
date but planned to return some 2 months later, a magistrate was in error in refusing an
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application for an adjournment on the ground that the defendant did not have a defence to the
claim.

(b) Application by plaintiff to adjourn proceedings

Where, in a civil proceeding, a plaintiff was well aware of the defendant’s defence,
interlocutory steps had been completed and sufficient notice given by the defendant of an
intention to call expert evidence, a magistrate was not in error in refusing the plaintiff’s
application for an adjournment to further prepare its case.
.
(c) Defence witness ill
Where an application for an adjournment of a civil proceeding was made on the ground that a
witness whose evidence was said to be critical to the defendant’s case was ill, a magistrate
was not in error in refusing the application but reserving the right for a further application to
be made if it became clear that the witness’ evidence was relevant to the case.

(d) Application for adjournment because defendant on medication; medical report

ambiguous
Where, in civil proceedings, an application for an adjournment was refused and subsequently,
a second application was made to another magistrate based on identical material to that
presented to the first magistrate, the second magistrate had jurisdiction to entertain the further
application but should have refused it as an abuse of process.

(e) Hearing date fixed three months in advance

Where a magistrate took into account the effect of an adjournment on the parties and the
court; that the defendant could pursue an indemnity claim at a later date; that the hearing date
had been fixed three months earlier; and that the defendant had engaged in delaying tactics in
failing to join third parties and take interlocutory steps until the date of the hearing, the
magistrate was not in error in refusing the defendant’s application for an adjournment.

(f) One Party said to be overseas or interstate

Sometime well prior to the return date, parties to a claim and counterclaim were notified of
the date of hearing. J. told his legal practitioner that the date of hearing would have to be
adjourned because J. had important business overseas. When the matter came on for hearing,
counsel appeared for J. and requested that the matter be adjourned. No explanation was given
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to the magistrate as to the nature of the business which required J. to be overseas on that day
or why it was so urgent that he be there. No affidavit or any evidence in support of the
application was filed with the court. B. opposed the application. In refusing the application,
the magistrate said that there was not sufficient detail as to why the absent party had to leave
the jurisdiction. The magistrate then heard the matter, made an order in B’s favour and
dismissed J’s counterclaim.
On appeal—
HELD: Appeal dismissed. It is entirely within the discretion of a magistrate whether or not to
grant an application for an adjournment of proceedings before the court. In this case, there
was no evidence whatsoever to support J’s application. In particular, there was no material as
to the nature of J’s business overseas that day, why it was necessary for J. to be overseas that
day, why it was so urgent that J. had to be overseas that day and when he would be returning
to Victoria.
It was incumbent upon the person making the application to place before the court
appropriate material in support of the application. Accordingly, it could not be said in the
circumstances that in refusing J’s application for an adjournment J. was denied natural
justice.

(g) Decision quashed. Magistrate to rehear evidence

M. claimed a sum from W. for unpaid wages during a period of alleged employment in 1993.
On the hearing, M. was successful and an order made on the claim together with interest and
costs.
Subsequently, an appeal from this decision to a judge of the Supreme Court was successful
and the matter was remitted to the Magistrates’ Court for further hearing. In the reasons for
decision, His Honour referred to a potential witness who had sworn an affidavit to the effect
that she gave perjured evidence in support of M’s claim before the magistrate. In ordering
that W. could relitigate the original claim, His Honour contemplated that, as a matter of
probability, the outcome of the rehearing might depend on whether the witness gave evidence
and in that event, what that evidence was. When the rehearing came on before the magistrate,
the witness did not attend. Without any evidence being given, M. applied for the
reinstatement of the original order. W. sought an adjournment so that the witness could be
sub-poenaed to attend court. The magistrate refused the application for an adjournment and
reinstated the original order with costs. Upon appeal—
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HELD: Appeal allowed. Order set aside. Remitted for further hearing. The magistrate
misunderstood nature of the order made by the judge of the Supreme Court. His Honour
ordered that the original order be quashed and the matter be remitted to the Magistrates’
Court for hearing and determination according to law. Upon the plain terms of the order it
was not open to the magistrate not to conduct a hearing because a particular potential witness
was not available.
(h) Illness of party
The matters that were referred to in the medical reports indicated a serious state of affairs as
to the health of the defendant.
Per Hansen J:
“It has been said time and time again, that whether an adjournment will be granted at the
request of a party depends on the justice of the situation in the particular circumstances and it
has been said for a long time now, and it was referred to by the High Court in State of
Queensland v JL Holdings7, that normally an adjournment will be granted if any prejudice to
the opposite party can be cured by an award of costs or some other appropriate term.

7 HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; 71 ALJR 294
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Introductory Remarks

The subject relating to award of costs in civil matters has been taken up by the Law
Commission of India pursuant to the observations made by the Supreme Court that the legal
provisions relating to costs needs to be revisited by the legislature and the Law Commission.
The first case which it is relevant to mention in this context is that of Ashok Kumar Mittal vs.
Ram kumar Gupta8. The second is the case of Vinod Seth Vs. Devinder Bajaj9. In another
judgment rendered very recently, the Supreme Court took note of various suggestions placed
before the court by the Law Commission and Sri Arun Mohan (Sr. Advocate), and reiterated
the need to consider appropriate changes in the relevant provisions including the rules of
various High Courts.
This is what the Supreme Court said in Ashok Kumar Mittal’s case:
“ The present system of levying meagre costs in civil matters (or no costs in some matters), no
doubt, is wholly unsatisfactory and does not act as a deterrent to vexatious or luxury
litigation borne out of ego or greed, or resorted to as a “buying-time” tactic. More realistic
approach relating to costs may be the need of the hour. Whether we should adopt suitably,
the western models of awarding actual and more realistic costs is a matter that requires to be
debated and should engage the urgent attention of the Law Commission of India.”
Similar views were echoed in Vinod Seth’s case. The Supreme Court observed as under after
discussing various aspects relating to costs:
“ The lack of appropriate provisions relating to costs has resulted in a steady increase in
malicious, vexatious, false, frivolous and speculative suits, apart from rendering Section 89
of the Code ineffective. Any attempt to reduce the pendency or encourage alternative dispute
resolution processes or to streamline the civil justice system will fail in the absence of
appropriate provisions relating to costs. There is therefore an urgent need for the legislature
and the Law Commission of India to revisit the provisions relating to costs and compensatory
costs contained in Section 35 and 35-A of the Code.”
Accordingly, the Law Commission took up for consideration the subject relating to award of
costs in civil litigation. While so, in yet another case, i.e., Sanjeev Kumar Jain vs. Raghubir
Saran Charitable Trust, the Supreme Court had to address the issues relating to costs. The

8
(2009) 2 SCC 656

9
(2010) 8 SCC 1
 P a g e | 16

Law Commission felt that it would be appropriate to present its views before the Supreme
Court and to assist the Court in the matter. Accordingly, written submissions which, inter
alia, contained specific suggestions were filed before the Supreme Court. One of the
Part-time Members of the Commission – Shri A. Mariarputham (Sr. Advocate) – assisted the
court. Dr. Arun Mohan (Sr. Advocate, who was appointed as amicus curiae in that case) also
rendered considerable assistance to the court. The learned Judges of the Supreme Court
extensively referred to the suggestions made by the Law Commission and the amicus,
recorded their views broadly on the approach to be adopted in awarding costs or framing the
rules governing costs and finally observed thus: “We suggest appropriate changes in the
provisions relating to costs contained as per paras 14-29 above to the Law Commission of
India, the Parliament and the respective High Courts for making appropriate changes.” It
may be mentioned here that paras 14 to 22 deal with costs in civil litigation and the
subsequent paras are about arbitration costs.

There is one more case decided by the Supreme Court recently i.e., the case of
Ramrameshwari Devi vs. Nirmala Devi in which also certain principles relating to costs were
set out.
The common thread running through all these cases is the reiteration of three salutary
principles: (i) costs should ordinarily follow the event; (ii) realistic costs ought to be awarded
keeping in view the ever increasing litigation expenses; and (iii) the cost should serve the
purpose of curbing frivolous and vexatious litigation. It is worth quoting Justice Bowen in
Copper vs. Smith (1884). He said: “I have found in my experience that there is one panacea
which heals every sore in litigation and that is costs”.
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DETERMINATION OF GRANT OF AN ADJOURNMENT

In determining whether an adjournment should be granted, the court is not confined to

applying the general traditional view that regard is only to be had to the interests of the
litigants in the particular case, but should also take into account the effect of an adjournment
on court resources; the competing claims of litigants in other cases awaiting hearing in the
particular list; the working of the listing system of the particular court or list; and the
importance in the proper working of that system of adherence to dates fixed for hearing.

In Sali v SPC Ltd10, the majority of the High Court observed (at 843–844): In Maxwell v
Keun11 English Court of Appeal held that, although an appellate court will be slow to
interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the
refusal will result in a denial of justice to the applicant and the adjournment will not result in
any injustice to any other party. That proposition has since become firmly established and has
been applied by appellate courts on many occasions. Moreover, the judgment of Atkin LJ in
Maxwell has also been taken to establish a further proposition: an adjournment which, if
refused, would result in a serious injustice to the applicant should only be refused if that is the
only way that justice can be done to another party in the action. However, both propositions
were formulated when court lists were not as congested as they are today and the concept of
case management had not developed into the sophisticated art that it has now become.

In determining whether to grant an adjournment, the judge of a busy court is entitled to

consider the effect of an adjournment on court resources, the competing claims by litigants in
other cases awaiting hearing in the court as well as interests of other parties … What might
be perceived as an injustice to a party when considered only in the context of an action
between parties may not be so when considered in a context which includes the claims of
other litigants and the public interest in achieving the most efficient use of court resources.

A similar approach was expressed by Gleeson CJ in State Pollution Control Commission v

Australian Iron and Steel Pty Ltd12 :

10
(1993) 67 ALJR 841
11
[[1928] 1 KB 645]
12 (1992) 29 NSWLR 487
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The courts of this State are overloaded with business, and their workload has, over a number
of years, increased at a greater rate than any increase in the resources made available to them.
The inevitable consequence has been delay. This, in turn, has brought an ever increasing
responsibility on the part of the judges to have regard, in controlling their lists and the cases
that come before them, to the interests of the community, and of litigants in cases awaiting
hearing, and not merely to the concerns of the parties in the instant case. The days have gone
when courts will automatically grant an adjournment of a case simply because both parties
consent to that course, or when a decision to grant or refuse an adjournment sought by one
party is made solely by reference to the question whether the other party can adequately be
compensated in costs.

In State of Queensland v J L Holdings Pty Ltd (1997)13 189 CLR 146 at 154 Dawson,
Gaudron and McHugh JJ said:

Case management is not an end in itself. It is an important and useful aid for ensuring the
prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in
changing times, that the ultimate aim of the court is the attainment of justice and no principle
of case management can be allowed to supplant that aim.

However in Dennis v Australian Broadcasting Corporation14 Spigelman CJ, with whom

Basten and Campbell JJA agreed, observed that, while State of Queensland v J L Holdings
Pty Ltd remained binding authority with respect to applicable common law principles, those
principles could be and had been modified by statute both directly and via statutory authority
for rules of court:

The Chief Justice said at :

In this State J L Holdings must now be understood as operating subject to the statutory duty
imposed upon the courts by s 56(2) of the Civil Procedure Act 2005, which requires the Court
in mandatory terms — “must seek” — to give effect to the overriding purpose — to
“facilitate the just, quick and cheap resolution of the real issues in the proceedings” — when
exercising any power under the Act or Rules. That duty constitutes a significant qualification
of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act.

13 189 CLR 146 at 154

14 [2008] NSWCA 37
 P a g e | 19

The duty referred to applies to the exercise of the power of adjournment.

Subsequent to Dennis the High Court held that the statement from J L Holdings set out above
is not authoritative and is not to be followed: Aon Risk Services Australia v Australian
National University15, Gummow, Hayne, Crennan, Kiefel and Bell JJ ; Heydon J.

The statements in Sali v SPC Ltd and Frugtniet v State Bank of New South Wales [1999]
NSWCA 458 that it is only in extraordinary circumstances that an adjournment will be
refused where the practical effect of the refusal will be to terminate proceedings adversely to
the applicant for adjournment are qualified by the above referred to changes. For an example
of the refusal of an adjournment on case management principles see Szczygiel v Peeku
Holdings Pty Ltd16.

Short adjournments

A short adjournment, for example, for a matter of hours or until the following day, should
normally be allowed: Petrovic v Taara Formwork (Canberra) Pty Ltd17.

Unavailability of party or witness

That a party or a material witness is unavailable will usually be a sufficient ground for an
adjournment, provided such unavailability is not the fault of the party whose interests will be
prejudiced by the refusal of the adjournment or of his or her solicitor: Walker v Walker
[1967] 1 WLR 327; Vasiljev v Public Trustee [1974] 2 NSWLR 497; Petrovic v Taara Form
Work (Canberra) Pty Ltd (1982) 62 FLR 451. Cf Bloch v Bloch (1981) 180 CLR 390.

In Ellis v Marshall [2006] NSWSC 89, Campbell J, refused a plaintiff’s application to vacate
a hearing date, where after the date was fixed, but before being notified, she had booked an
overseas holiday, referred to sec 56 and 57 of the CPA.

15 (2009) 239 CLR 175 French CJ

16 [2006] NSWSC 73
17(1982) 62 FLR 451.
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Legal aid appeals

Where an applicant for legal aid is dissatisfied with the determination of such application and
has appealed or intends to appeal, s 57 of the Legal Aid Commission Act 1979 applies.
Section 57 provides:

Where it appears to a court or tribunal, on any information before it:

(a) that a party to any proceedings before the court or tribunal:

(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee
and that the appeal has not been determined, or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review
Committee and that such an appeal is competent,
(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or
otherwise intended to improperly hinder or improperly delay the conduct of the
proceedings, and
(c) that there are no special circumstances that prevent it from doing so,the court or tribunal
shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

Consent adjournments

The fact that both parties consent to the adjournment is not decisive and does not mean that it
must be granted: Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246. It
is for the court, not the parties, to decide whether the case should be adjourned.

Apprehended change in legislation

It is not proper to grant an adjournment because of an apprehended change in legislation,

even if such apprehended change has been announced by the relevant Minister: Sydney City
Council v Ke-Su Investments Pty Ltd, above; Willow Wren Canal Carrying Co Ltd v British
Transport Commission [1956] 1 WLR 213 at 215–216; R v Whiteway; Ex parte Stephenson
[1961] VR 168 at 171; Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527.
 P a g e | 21

A possible exception may be in cases seeking discretionary relief, for example, prerogative
orders or injunctions, where the proposed changes may render any orders futile: Meggitt
Overseas Ltd v Grdovic, above.

Pending appeal in other litigation

Generally speaking a possible change in the law, whether judicial or legislative, is not treated
as justification for failing to hear a case fixed and ready for trial: Geelong Football Club
Ltd v Clifford [2002] VSCA 212; Meggitt Overseas Ltd v Grdovic, above.

However, a court in exercising its discretion as to adjournment, may properly have regard to
an appeal brought by parties in another case seeking to test a relevant proposition established
in that case: Meggitt Overseas Ltd v Grdovic, above, at 534–535.

An application for leave to appeal in such a case will not, generally at least, afford an
adequate basis to grant an adjournment: City of Sydney Council v Satara [2007]
NSWCA 148.

Concurrent civil and criminal proceedings

Whether a party to civil litigation, who is facing criminal proceedings in relation to the same
subject matter, should be granted a stay or an adjournment depends upon the necessity to
ensure that the ordinary procedures of the court do not cause injustice to a party to that
litigation.

The Court must balance the prejudice claimed by the defendant to be created by the
continuation of the litigation against the interference which would be caused to the plaintiff’s
right … to have his claim heard without delay in the ordinary course of the court’s business
… Three matters of prejudice have been envisaged in the cases: the premature disclosure of
the defendant’s case in the criminal prosecution; the possibility of interference with the
defendant’s witnesses prior to the trial of that prosecution; and the effect of publicity given to
the civil litigation upon jurors in the criminal trial: Gypsy Fire v Truth Newspapers Pty Ltd
(1987)18 .

18
9 NSWLR 382 at 386, 387.
 P a g e | 22

See also McMahon-Winter v Larcombe [1978] 2 NSWLR 155; Ceasar v Sommer [1980] 2
NSWLR 929 and McMahon v Gould (1982) 7 ACLR 202.

Judge’s control of trial

Often, at least in cases without a jury, when an adjournment is sought on account of some
procedural defect of the other side, for example late service of amended particulars or
additional medical reports, an adjournment can be avoided by reserving the rights of the party
not in default; as the case proceeds, the adjournment often becomes unnecessary.

There is a need to take into account, in considering the effect of a refusal to grant an
adjournment, “the control which the judge will enjoy over the action when it comes on for
trial including, particularly in a case such as the present where no jury is involved, the power
to deal with any particular applications for adjournments which may subsequently be made”:
Squire v Rogers (1979) 39 FLR 106 at 114.

Costs

When an adjournment is granted, the parties whose conduct is responsible for the
adjournment is usually ordered to pay the additional costs incurred by the other party as a
result of the adjournment.

However, as to an order for costs as a panacea, the traditional view that such an order is
adequate compensation for delay occasioned by the grant of an adjournment (or amendment)
is no longer regarded as sound: GSA Industries Pty Ltd v NT Gas Ltd; Commonwealth v
Verwayen (1990) 170 CLR 394 at 465 per Toohey J.

Adjournment only to “specified day”

Section 66 of the CPA only permits the adjournment of proceedings to a “specified day” and
proceedings should not be stood over generally in the exercise of any inherent power of the
court. It would not ordinarily be proper to adjourn possession proceedings indefinitely merely
for the purpose of allowing the mortgagor to pay the secured debt by instalments:
Birmingham Citizens Permanent Building Society v Caunt [1962] Ch 883 and Mobil Oil Co
Ltd v Rawlinson (1982) 43 P & CR 221.
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CONCLUSION

It is high time that courts become sensitive to delays in justice delivery system and 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. 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.
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BIBLIOGRAPHY

Books
Takwani C.K, Civil Procedure, Sixth Edition, Eastern Book Company.
Code of Civil Procedure Bare Act

Websites

www.legalservices.org
www.indiankanoon.com
www.shodhganga.com