High Court · 2012

Heard Mr. S. N. Sarma, learned Senior counsel for the petitioner/ defendant No.1 . Also heard Ms. D. Borgohain, learned counsel appearing for all the opposite pa rties. By an order dated 02.07.2011 passed by the learned Munsiff No. 2, Nagaon in Titl e Suit No.157/2006, on the prayer of the plaintiffs and not objected to by the l earned counsel for the defendants, the learned trial court allowed the prayer of the plaintiffs made by an application under Order 26 Rule 1 CPC to issue a comm ission for the cross-examination of PW-1, i.e. Upendra Ch. Bora, on the ground t hat the witness is an old and infirm person. Accordingly, an Advocate Commission er was appointed to record the evidence of the said witness fixing 30.07.2011 fo r submission of evidence recorded by the Commissioner. It is submitted by the le arned counsel for the parties that in view of the request made by the learned Ad vocate Commissioner, subsequently, date of submission of evidence was extended t o 29.09.2011. The Commissioner had fixed 22.08.2011 and 24.09.2011 for the said purpose and on the first date, time was allowed on the prayer of the counsel for defendant No.1 and on the next date i.e. on 24.09.2011, adjournment was obtaine d by the counsel for the defendant No.2. On 29.09.2011 the Advocate Commissioner appeared before the Court and submitted a report regarding the proceedings befo re him. The learned Trial Court, by the order dated 29.09.2011, came to a conclusion tha t the defendants were deliberately delaying the recording of the evidence of PW- 1 and therefore, cross-examination of PW-1 was dispensed with. An application under Section 151 CPC came to be filed by the ’defendants’. Howev er, it is clarified by Mr. S. N. Sarma, learned Senior Counsel for the petitione r/ defendant No.1 that the said application was actually filed by the defendant No.1. An objection was also filed to the said application by the plaintiffs. Vid e impugned order dated 23.03.2012, the said application was rejected. From a perusal of the said order dated 23.03.2012, it also appears that on that date, a similar application, as was filed by the defendant No.1, was filed by th e defendant No. 2 and that both these applications were heard, considered and di sposed of by the said order. This application under Article 227 of the Constitution of India is filed by the defendant No.1 challenging the orders dated 29.09.2011 and 23.03.2012. Mr. S. N. Sarma, learned Senior counsel for the petitioner/defendant No.1 submit s that the finding of the learned trial Court that the defendants were trying to delay the matter deliberately is not a correct finding, at least, as far as def endant No.1 is concerned. Defendant No.1 was present on 24.09.2011, as would app ear from the order dated 29.09.2011. However, on that date, on the prayer of the learned counsel for the defendant No.2, adjournment was allowed and recording o f evidence was not done. In the aforesaid view, he submits that one last opportu nity should be granted to the defendant No.1 to cross-examine PW-1 by setting as ide the orders dated 29.09.2011 and 23.03.2012, so far as they relate to the pet itioner/defendant No.1. Ms. D. Borgohain, learned counsel appearing for all the opposite parties submits that as the date for submission of evidence was fixed on 29.09.2011 and as no c ross-examination of PW-1 was done by the defendants, the learned trial Court com mitted no material irregularity in dispensing with the cross-examination of PW-1 . She further submits that the filing of the petition under Section 151 CPC by t he defendant No.1 is also a ploy to prolong the proceedings as the petition unde r Section 151 CPC is not maintainable. In the aforesaid premise, the learned cou nsel submits that this Court ought not to exercise its jurisdiction under Articl e 227 of the Constitution of India and ought to dismiss the application. I have heard and considered the submissions advanced by the learned counsel for the parties. It is not disputed by Ms. D. Borgohain that petitioner/defendant No .1 was present on 24.09.2011. The materials on record would, prima facie, indica te that the defendant No.1 was present on 24.09.2011. If that be so, the learned Commissioner ought to have allowed defendant No.1 to cross-examine PW-1. In the facts and circumstances of the case, it cannot also be said that merely because the defendant No.1 sought for adjournment on one occasion, necessarily, finding has to be recorded that the defendant No.1 is trying to drag the proceedings d eliberately. So far as the petition under Section 151 CPC is concerned, the learned Trial Cou rt may be technically correct in stating that an application for review ought to have been filed instead of a petition under Section 151 CPC. Be that as it may, in the instant application, the petitioner has challenged bot h the orders, dated 29.09.2011 and 23.03.2012. It appears to this Court that the learned trial court is not correct in concluding that the defendants, which mea ns defendant No.1 as well, are deliberately delaying the recording of the eviden ce of the PW-1. This Court is also of the considered opinion that as far as peti tioner/defendant No.1is concerned, an opportunity ought to be accorded to him to cross-examine PW-1. In that view of the matter, the impugned orders dated 29.09.2011 and 23.03.201 2 are set aside so far as they relate to the petitioner/defendant No.1. The part ies before this Court will appear before the learned trial court on 30.08.2012 a nd the learned trial court will appoint an Advocate of the court as Commissioner for cross-examination of PW-1 by fixing a date. It is also made clear that the defendant No.1 is granted one last opportunity to cross examine PW-1 and under n o circumstances, at the instance of the defendant No.1, cross-examination of PW- 1 shall be deferred. The cost of the Commissioner shall be entirely borne by the defendant No.1. Additionally, the defendant No.1 will deposit, before the trial court, on 30.08.2012, a sum of Rs. 3,000/- as cost to be paid to the plaintiffs . With the aforesaid observations and directions, this petition is allowed to th e extent indicated herein above.