JUDGMENT D. RAJU, C.J. (Oral). 1. The above revision has been filed by the defendant in Civil Suit No. 54/1 of 1996 on the file of the learned Subordinate Judge, Rajgarh, District Sirmour against the order dated 27.4.1998, where under the Court below has declined the request of the petitioner to recall the witnesses of the plaintiff for cross-examination. 2. Heard, Mr. Bhupinder Gupta, learned counsel for the petitioner and Mr. G.D. Verma, learned counsel for respondent No. 1. Having regard to the stage of the proceedings in the Court below, it would be appropriate not to make reference to the details of the merits of the case of the respective parties. Suffice it to state that on 5.9.1997, five witnesses of the plaintiff were present for being examined, but the counsel for the defendant, who was to cross-examine those witnesses could not reach the Court and on a request made for adjourning the matter being rejected also, the five witnesses were examined in the absence of the counsel for the defendant and, therefore, without being cross-examination for the defendant. The certified copies of the proceedings, which disclose the events which transpired before the Court below show that the Court below has chosen to not only examine the witnesses, but dispensed with the cross-examination invoking Order 17 Rule 1 of the Code of Civil Procedure since the defendant refused to cross-examine the witnesses in the absence of his counsel. There upon, the Court below passed an order that the plaintiff has closed the evidence and let the evidence of the defendant be summoned for 24.10.97. On 24.10.97 again the Court below has made an I order that let the evidence be produced on 4.11.97 The same order was passed on that date and further thereafter also that the evidence be produced on 29.12.1997 and again the same type of order was passed on 29.12.1997 posting the case to 8.1.1998. It is at this stage, the petitioner appears to have filed an application on 8.1.1998 recalling the plaintiff witnesses for cross-examining the witnesses and thereupon, after giving time for reply to the other side in the said application, the order impugned in this revision came to be passed. It is at this stage, the petitioner appears to have filed an application on 8.1.1998 recalling the plaintiff witnesses for cross-examining the witnesses and thereupon, after giving time for reply to the other side in the said application, the order impugned in this revision came to be passed. The Court below seems to have thought that inasmuch as on 5.9.1997, the request for adjournment was declined and the evidence was let in by the plaintiff, it is not permissible to allow the claim and the principle of res judicate will apply for the subsequent stage of the proceedings. In substance, the learned Judge in the Court below was of the view that once the adjournment was not granted due to the absence of the counsel on 5.9.1997, but the request was rejected thereafter the defendant cannot be permitted to recall the witnesses for cross-examination. Mr. G.D. Verma, learned counsel for the respondent while opposing the revision and the claim of the counsel for the petitioner contended that the present revision, in substance, must be considered to be of the order dated 5.9.1997 and, viewed thus therefore, the same is barred by limitation, computing the limitation from the date of the order, when the claim for adjournment was refused on 5.9.1997. The further objection by the learned counsel for the respondent was that the petitioner having availed of the subsequent opportunities given for producing his witnesses on 24.10.1997, 4-11-1997 and 29-12-1997 are not only estopped from challenging the order and seeking for re-calling of the witnesses of the plaintiff for cross-examination, but their case has to go also on account of the gross negligence on their part in contesting the claim diligently. Relying upon the decision reported in AIR 1973 S.C. 76 (The Managing Director (MIG) Hindustan Aeronautics Ltd. vs. Ajit Prasad Tarway), it has been finally contended that the order under challenge being one interlocutory in nature, the discretion exercised by the Court below cannot be interfered with as long as there is no error of jurisdiction or the order is shown to be so illegal and vitiated on account of material irregularity. 3. I have carefully considered the submissions of the learned counsel appearing on either side. In my view, the plea based on the bar of limitation has no merit of acceptance. 3. I have carefully considered the submissions of the learned counsel appearing on either side. In my view, the plea based on the bar of limitation has no merit of acceptance. What is now challenged is only the order passed on 27.4.1998, when the application filed specifically for the purpose of recalling the witnesses came to be rejected and the revision now before me cannot be said to be against the order declining the request for adjournment on 5.9.1997. As for the alleged plea of negligence and estoppel, I am of the view that the lapse was no doubt on the part of the petitioner, but it appears to be not personal and the delay in moving an application at the earliest seem to be due to him, apparently on a mis-conception of their rights and the procedure to be adopted and it is seen |hat the petitioner does not appear to have had proper legal advice. On his account alone, the petitioner/defendant need not be put to such a serious damage in a matter involving substantial rights of the parties, who project in the suit competing claims in respect of immovable property. From the orders, it does not appear that the respondent or his counsel acquiesced in the order by agreeing to commence their evidence, but the nature of endorsement found made by the Court below shows only as though there was a direction to produce the evidence of the defendant, In such a nebulous state of affairs, it will be too harsh to apply the principle of estoppel or negligence against the petitioners. As for the plea that the discretion exercised by the Court below in passing an interlocutory order of this nature could not be interfered with by this Court in exercise of its revisional jurisdiction under Section 115 of the code of Civil Procedure, I am of the view that the plea in this regard cannot merit my acceptance. The decision relied upon and the observation on their Lordships of the apex Court in AIR 1973 S.C. 76 is in a case where an interlocutory order of suspension was the subject matter of challenge and apparently their Lordships were not inclined and did not also encourage revisions being entertained in such matters except for exceptional reasons indicated therein. The decision relied upon and the observation on their Lordships of the apex Court in AIR 1973 S.C. 76 is in a case where an interlocutory order of suspension was the subject matter of challenge and apparently their Lordships were not inclined and did not also encourage revisions being entertained in such matters except for exceptional reasons indicated therein. In the case on hand, if the order of the nature is not interfered with, it will have effect of substantial part of the trial being allowed to proceed virtually ex-parte and in the absence of cross-examination of the witnesses of the plaintiff, the defendants case would seriously suffer and merely production of their witnesses alone can be no effective answer to be evidence, which has come on record on the side of the plaintiff unchallenged and without subjecting it to the scrutiny of cross-examination. Allowing such orders in a matter where substantial rights of the immovable property are involved would, in my view, constitute an approval virtually of mis-trial of the case leading to grave injustice and prejudice. It is often said that the procedure should be hand maid of justice and not to be allowed even to scuttle the course of justice. 4. Consequently, I am of the view that the order of the Court below is liable to and is hereby set aside, of course, subject certain terms and conditions to be stipulated to ensure that the petitioner not only is prevented from repeating such in-different attitude in participating in the trial, but also by sufficiently compensating the plaintiff for the burden of cost on him to re-summon the witnesses and the trouble they have to undertake tot instruct their counsel once over again in this connection. In my view, the petitioner should be made to pay Rs. 1,000/- towards the cost and the same shall be paid over to the plaintiffs counsel in the Court below and a receipt thereof be produced and the acknowledgment recorded by the Court below on the date of the first hearing fixed by consent which shall be 17.11.1999. On that date, the defendant shall comply with the directions in terms of the remittance of the costs. On that date, the defendant shall comply with the directions in terms of the remittance of the costs. The defendant also is cautioned to be more active in participation and shall not only proceed by effectively participating in the trial from day to day hearing, as fixed by the Court below for cross-examining the witnesses also as may be, for producing their witnesses may be also as/directed by the Court below without further delay to facilitate the expeditious disposal of the main matter. The revision petition shall stand allowed on the above terms.