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2005 DIGILAW 412 (GAU)

Silda Passah v. Nothy Passah

2005-05-26

ANIMA HAZARIKA

body2005
JUDGMENT Anima Hazarika, J. 1. The privilege of indulgences shown by the learned trial court has not been availed of by the Petitioner in the matter of taking proper steps in the suit being Title Suit No. 51(T) of 1979 resulting in passing the ex-parte hearing of the suit dated 6.7.1998 which culminated in filing an application under Section 151 of the Code of Civil Procedure on 6.8.98 seeking the following prayer: This Court may be pleased to set aside the order dated 6.7.98 and orders prior thereto fixing the case for ex-parte hearing and allow the Petitioner/Plaintiff to examine her witnesses and cross examine Defendant's witnesses and present her case, as otherwise the humble Petitioner will be highly prejudiced and for end of justice and for this act of kindness, shall ever pray. 2. The learned trial court took up the matter on 6.8.1998 and passed the following order which is quoted hereunder: 6.8.98. The Plaintiff is present alongwith her counsel. The Defendant is present through counsel. Seen a petition No. 310 of 1998, dated 6.8.98 filed by Smti Silda Passah, daughter of Late Essi Passah under Section 151 Code of Civil Procedure, praying to the court for setting aside the order dated 6.7.98 and orders prior thereto for ex-parte hearing and/or hearing both the parties to decide the case on merit This petition is moved before the court today by Ms. A. Paul, advocate and counsel for the Petitioner. Furnish the copy of this petition to the Defendant. Fixed on 7.9.98 for show cause if any, by the Defendants. 3. Thereafter once again the Plaintiff filed a petition on 12.5.99 for adjournment of the case and accordingly case record was placed before the learned court wherein the learned trial court passed the following order which is quoted hereunder: 12.5.99. The Plaintiff is present through counsel. The Defendant also is present through counsel. Seen a petition No. 149 of 1999 dated 12.5.99 filed for and on behalf of the Plaintiff, praying for another date. This Court is busy today in recording the confessional statement of an accused in a criminal case and as such this Court could not take up cases today including this case. From the order sheets, it is seen that the Plaintiff has failed to take step in spite of the last chance given. This Court is busy today in recording the confessional statement of an accused in a criminal case and as such this Court could not take up cases today including this case. From the order sheets, it is seen that the Plaintiff has failed to take step in spite of the last chance given. Hence, it is ordered that petition filed by the Plaintiff today is hereby rejected. It is also ordered and Plaintiff is allowed to participate in the argument Hence fixed on 27.5.99 for argument. 4. The record of the case would reveal that the matter was placed before the learned trial court on 26.8.99 and the learned trial court passed the following order which is quoted hereunder: 26.8.99. The Plaintiff is present today alongwith her counsel Smti. A. Paul, Advocate. Seen the haziras filed for the Defendant but the Defendant's counsel is not present before the court today. Sri A. Massar, advocate for the Defendant was called for at around 2:20 p.m. but it is reported that he is not available in the Bar Library. Then heard Ms. A. Paul on the petition of the Plaintiff filed on 6.8.98. She concluded her submission today. Fixed on 21.9.99 for submission by the learned Counsel for the Defendant. 5. The case came up for consideration on 21.9.99 before the learned court and the learned court passed the following order which is quoted hereunder: 21.9.99. The Plaintiff is present through counsel. The Defendant also is present through counsel. Seen a petition No. 453 of 1999 dated 21.9.1999 filed by the Advocate for the Defendant No. 1 praying to the court to make necessary correction in the deposition of the witness before proceeding the suit. As regard the hearing on the petition filed by the Plaintiff, Shri A. Massar, learned Counsel for the Defendant, pointed out in view of the order dated 12.5.99, the said petition and the order dated 26.8.99 has become infructuous. Ms. A. Paul, counsel for the Plaintiff also admitted that though she was not aware of the order dated 12.5.99, the order dated 26.8.99 has become infructuous in view of the order dated 12.5.99 passed by this Court. Hence this Court declared that the order dated 26.8.99 and the petition filed by the Plaintiff on 6.8.98 has become infructuous. Ms. A. Paul, counsel for the Plaintiff also admitted that though she was not aware of the order dated 12.5.99, the order dated 26.8.99 has become infructuous in view of the order dated 12.5.99 passed by this Court. Hence this Court declared that the order dated 26.8.99 and the petition filed by the Plaintiff on 6.8.98 has become infructuous. The copy of the petition filed by the Defendant today has been received by the Plaintiff through her counsel today. Hence fix on 28.9.99 for correcting the deposition of witnesses in presence of both the parties. 6. Having failed to get any positive order from the learned trial court, in the matter of setting aside the ex-parte order and recalling of Defendant's witness for cross-examination and the examination of more witnesses on the side of the Plaintiff, the Petitioner had filed an application under Order 18 Rule 2(4) and Order 18 Rule 17 read with Section 151 of the Code of Civil Procedure seeking the prayer for recalling the Defendant's witness No. 1 and 2 namely, Smti Fanny Kahit and Smti Nothy Passah for cross-examination and to allow the Plaintiff to examine her other witnesses. The said application was filed on 16.11.99 and the same was heard on the same day and fixed on 22.11.99 for order. 7. The learned trial court considering the nature of suit partly allowed the prayer of the Petitioner by allowing her to cross-examine DW 1 and DW 2 but rejected the prayer for examining her own witnesses vide order dated 22.11.99 passed in Title Suit No. 51(T) 79 against which a Civil Revision being Civil Revision Petition Case No. 1(T) 2000 was taken to the file of the learned Additional Deputy Commissioner/Additional District Judge, Shillong. 8. The said Civil Revision No. 1(T) 2000 came up for hearing on 17.10.2001 and the learned Additional Deputy Commissioner after hearing the parties, the material evidence on record and the decision referred to by the parties during the argument, delivered the judgment and order dated 20.12.2001 holding that the learned trial court below has passed the order dated 22.11.99 within his powers and discretion and having no jurisdictional defects, the same suffers from no infirmity in law and as such, upheld the order dated 22.11.99 passed by the learned Trial Court in the Title Suit No. 51(T) of 1979. 9. 9. The Petitioner being aggrieved with the judgment and order dated 20.12.2001 passed in Civil Revision No. 1(T) 2000 by the learned Additional Deputy Commissioner/ Additional District Judge, Shillong dismissing the same by upholding the order dated 22.11.1999 passed by the learned Assistant to the Deputy Commissioner in Title Suit No. 51 (T) of 1979, has filed the instant application under Rule 36A of the Administration of Justice and Police Rules, 1937 read with Article 227 of the Constitution of India before this Court being CR(P) No. 17 (SH) of 2002 challenging the legality and validity of the order as aforesaid. 10. To decide the controversy, a brief and important synopsis of the factual exposure of the case is an inevitability which paves the way for appreciation. The Predecessor-in-interest of the present Petitioner has filed a suit being Title Suit No. 51(T) of 1979 against the opposite party/Respondent in the court of Assistant to the Deputy Commissioner seeking for a decree of declaration of right, title and interest over the suit property. The suit is pending for the last two decades at the evidence stage till 6.7.1998 when the learned court below passed an order for ex-parte hearing. The following orders passed by the learned Trial Court would reveal as to why the learned Court below had to pass the order dated 6.7.98 for ex-parte hearing: 30.8.1996: Case/Suit fixed for further P.Ws. after examination of P.W. 3 From 19.9.1996 to 2.7.1997 In spite of 16 chances/dates given Plaintiff did not examine any witness except one P.W. (P.W. 4) on 8.11.1996 2.7.1997: Evidence of Plaintiff closed. 10.7.1997: D.W. 1 and D.W. 2 were examined and their examination-in-chief was concluded. Cross examination reserved for the next date (29.7.1997) 29.7.1997: Plaintiff and her counsel were absent without steps and hence the cross-examination of D.W. 1 and 2 was closed fixing next date (12.8.1997) for further D.Ws. 20.8.1997: D.W. 3 was examined and cross-examined by the counsel for the Plaintiff. 11.9.1997: Evidence (D.Ws.) closed fixing 25.9.1997 for argument. 25.9.1997: Plaintiff and her counsel remained absent from court. 21.3.1998: Plaintiff absent. So, re-fixed the case for argument on 17.4.1998. 17.4.1998: Plaintiff and her counsel absent. It was ordered that if they are found absent in the next date, the case will be argued ex-parte. 20.4.1998: Order for ex-parte argument passed. Plaintiff found absent. Fixed 30.5.1998. 6.7.1998: Plaintiff not present. Refix 6.8.1998 for ex-parte argument. 11. 21.3.1998: Plaintiff absent. So, re-fixed the case for argument on 17.4.1998. 17.4.1998: Plaintiff and her counsel absent. It was ordered that if they are found absent in the next date, the case will be argued ex-parte. 20.4.1998: Order for ex-parte argument passed. Plaintiff found absent. Fixed 30.5.1998. 6.7.1998: Plaintiff not present. Refix 6.8.1998 for ex-parte argument. 11. Against the order of ex-parte hearing, the Petitioner filed an application on 6.8.98 for setting aside the ex-parte hearing. The learned trial court vide order dated 12.5.99 allowed the present Petitioner to participate in the argument. By another order dated 21.9.99 the learned trial court on the admission of the parties has held that the petition dated 6.8.99 has become infructuous and thereafter an application under Order 18 Rule 2(4) and Order 18 Rule 17 of the Code of Civil Procedure has been filed on which the order dated 22.11.99 has been passed against which the Revision being CR (P) No. 1(T) 2000 was taken before the learned Additional Deputy Commissioner/Additional District Judge, Shillong who has passed the impugned judgment and order dated 20.12.2001 which has been assailed in this Revision Petition. 12. Heard Mr. K. Paul, learned Counsel assisted by Ms. A. Paul, advocates for the Petitioner and Mr. T.T. Diengdoh, learned Counsel appearing on behalf of the Respondent. 13. Advancing the argument, the learned Counsel appearing for the Petitioner has raised the following questions viz. 12. Heard Mr. K. Paul, learned Counsel assisted by Ms. A. Paul, advocates for the Petitioner and Mr. T.T. Diengdoh, learned Counsel appearing on behalf of the Respondent. 13. Advancing the argument, the learned Counsel appearing for the Petitioner has raised the following questions viz. (a) For the default of the advocate the parties should not be allowed to suffer; (b) The petition filed on 6.8.98 under Section 151 of the Code of Civil Procedure for setting aside the ex-parte hearing and orders passed prior to that date fixing the case for ex-parte hearing, whereas the petition dated 6.11.99 was filed under Order 18 Rule 2(4) and Order 18 Rule 17 of the Code for allowing her to cross-examine DW1 and DW2 and allow her to examine her own remaining witnesses and holding that the two petitions and the prayer made therein are the same and as such the finding is perverse; (c) The finding in regard to order dated 12.5.99 and 21.9.99 passed by the learned lower court, if not set aside by any superior court, the petition dated 6.11.99 ought not to have been entertained and the jurisdiction so exercised is not vested in it under the law; and (d) The Petitioner's contention for not allowing her own witnesses to examine has prejudiced her case. 14. In support of his contention made herein above, the learned Counsel appearing on behalf of the Petitioner has referred the following decisions: (a) Rafiq and another v. Munshilal and another, AIR 1981 SC 1400 (b) Kewal Krishan v. Harnek Singh (Dead by LRs.), (2001) 9 SCC 117 (c) Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215 (d) Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044 (e) Manindra Paul v. Pardeep Kumar Paul and other, (1994) 1 GLR 57 (f) Khargeswar Choudhury and another v. Isfaque Hussain, (2001) 1 GLT 692 (g) Kewal Singh v. Mt. Lajwanti, AIR 1980 SC 161 The decision cited in Rafiq and another v. Munshilal and another (Supra) relates to dismissal of appeal for default of Appellant's counsel. The Apex Court has held that the party should not suffer for inaction of his counsel. There is no ambiguity with the aforesaid decision. The case in hand would show that the evidence of the Plaintiff was closed after examining four witnesses. Thereafter, the Defendant was directed to lead her evidences. The Apex Court has held that the party should not suffer for inaction of his counsel. There is no ambiguity with the aforesaid decision. The case in hand would show that the evidence of the Plaintiff was closed after examining four witnesses. Thereafter, the Defendant was directed to lead her evidences. The record would show that the Petitioner was personally present when the case was called on for hearing. Therefore, this decision will not help the Petitioner in the instant case. Kewal Krishan v. Harnek Singh (Dead by LRs.) (Supra) relates to closing of evidence and the Appellant/Plaintiff prayed before the Apex Court to give one more opportunity to lead their evidence. The Apex Court acceded the said prayer subject to payment of rupees five hundred. In the instant case, admittedly, the record will reveal that four witnesses on behalf of the Plaintiff/Petitioner were examined and thereafter the court closed the evidence and directed the opposite party to lead the evidence and accordingly the evidences were led by examining D.W. 1 and D.W. 2. The Plaintiff/Petitioner before closing the evidence on her behalf did not make any endeavour to ask for the alleged remaining witnesses for examination. Therefore, this Court holds that the decision cited is not applicable in the instant case. The decision cited in Waryam Singh and another v. Amaraath and another (Supra), the question came up for consideration relating to the power of the High Court under Article 227 and 241 of the Constitution of India. The Apex Court has dealt with the power and jurisdiction of Judicial Commissioner relating to East Punjab Urban Rent Restriction Act, 1949 while exercising power by the District Judge under Section 13(2)(i) of the said Act has refused to exercise jurisdiction vested on him by law. Since he had failed to exercise jurisdiction, the Judicial Commissioner has interfered under Article 227 of the Constitution of India. The said decision of the Judicial Commissioner was under challenge before the Apex Court in a special leave petition under Article 136 of the Constitution of India. The Apex Court, did not interfere with the power exercised by the Judicial Commissioner and dismissed the appeal. The said decision of the Judicial Commissioner was under challenge before the Apex Court in a special leave petition under Article 136 of the Constitution of India. The Apex Court, did not interfere with the power exercised by the Judicial Commissioner and dismissed the appeal. Thus, the case referred to has no bearing in the instant case since there is no jurisdictional error committed by the courts below: In Surya Dev Rai v. Ram Chander Rai (Supra), the Apex Court has dealt with Section 115 of the Code of Civil Procedure (As amended by the Act of 46 of 1999) which came into effect from 1.7.2002 and the power under Article 227 of the constitution of India. While dealing with the case, the Apex Court has held that the supervisory jurisdiction is exercised for keeping the subordinate courts within the bounds of their jurisdiction when the subordinate court has assumed the jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step into, exercise its supervisory jurisdiction. The decision has no relevance relevance in the instant case, since the subordinate courts have not exercised the jurisdiction not vested in it by law. The case reported in (1994) 1 GLR 57 (Supra), this Court while dealing with the case has exercised the power under Order 18 Rule 17A of the Code of Civil Procedure. Order 18 Rule 17A provides for production of evidence not previously known or which could not be produced despite due diligence. In that case, this Court allowed the Petitioner to lead evidence in respect of Assessment Register of Silchar Municipality for the year 1980-81 and the certified copy of the sale deed which was filed only after recording of evidences of both sides. Though the Assessment Register was filed in time, but through inadvertence, the said document was not proved. Regarding certified copy of the sale deed it was stated that the Petitioner came to know about it after the closure of evidence. The learned Munsif rejected the said prayer by order dated 3.2.1993 which was impugned before this Court under Section 115 of Code of Civil Procedure. Regarding certified copy of the sale deed it was stated that the Petitioner came to know about it after the closure of evidence. The learned Munsif rejected the said prayer by order dated 3.2.1993 which was impugned before this Court under Section 115 of Code of Civil Procedure. This Court dealt with the word inadvertence, which means inattentive or unintentional. Since the Petitioner unintentionally failed to mark the document or lead evidence to that effect has allowed the Petitioner to lead evidence in regard to the said two documents by setting aside the order dated 3.2.1993. In the instant case, admittedly, the question raised before this Court was never urged before the learned courts below. Therefore, the contention raised at the belated stage cannot be accepted. In Khargeswar Choudhury (supra) this Court had occasion to deal with power under Article 227 of the Constitution of India. In the said case, decree was passed ex-parte by the trial court without any relevant material and hence held; exercise of power under Article 227 of the Constitution was justified. There is no ambiguity in regard to power under Article 227 of the Constitution. In the instant case, the power exercised by the courts below have not exceeded the jurisdiction illegally or with material irregularity. Since there is no irregularity or material illegality committed by the learned courts below, this Court do not find it proper to interfere with the orders passed by the learned courts below. In the case of Kewal Singh v. Mt. Lajwanti (Supra) the Apex Court at paragraph 8 observed that one of the essential condition of the res judicata is that there must be a formal adjudication between the parties after full hearing. In other words, the matter must be finally decided between the parties. Therefore, this decision is not applicable in the instant case. 15. On the other hand the learned Counsel appearing for the opposite party has made his submissions on the following grounds controverting the arguments advanced by the learned Counsel appearing for the Petitioner, viz. (a) That the learned Additional Deputy Commissioner has committed an error apparent on the face of the record in condoning the delay in filing revision petition being CR(P) No. 1(T) of 2000. (a) That the learned Additional Deputy Commissioner has committed an error apparent on the face of the record in condoning the delay in filing revision petition being CR(P) No. 1(T) of 2000. (b) That the Petitioner was/is aware of the orders passed in T.S. No. 51(T) of 1979 and therefore, laches cannot be attributed to the counsel, as argued; c) The scope of revisional court is very limited and can be interfered with only when there is jurisdictional error. In the instant case there is no jurisdictional error, therefore this Court may not interfere with the order passed by the learned courts below and prayed for dismissal of the instant Revision Petition. (d) The counsel has further brought to the notice of the court that the witnesses sought to be examined are vital, because they have to prove some signatures in the tax receipts. The said contention raised was never brought before the courts earlier and this contention has been raised for the first time before this Court, which cannot be entertained in the facts and circumstances of the case. 16. In support of his contention learned Counsel appearing on behalf of the Respondents has cited the following decisions: (a) Chanambam Madhu Singh and another v. Yumnam Ningthemjao Singh and other AIR 1970 Gau 34 (b) Smt. M.M. Amonkar and other v. Dr. S.A. Johari, (1984) 2 SCC 354 (c) Salil Dutta v. T.M. & M.C. Private Ltd. (1993) 2 SCC 185 (d) Prahlad Das v. Karunanram, AIR 1999 Raj 108 In the case of Chanambam Madhu Singh (Supra), the court had the occasion to deal with a similar case at hand i.e. regarding allowing the Plaintiff to examine the witnesses at the belated stage. The Court after thorough discussion of the matter came to the conclusion that the Trial Court had the jurisdiction to decide whether the prayer made by the Plaintiffs should be allowed or rejected and when the order is passed after following all the procedures, it cannot be said that the trial Court has committed breach of any provision of law or has committed error in procedure. Relevant paragraphs 5 and 7 are reproduced below: 5. Relevant paragraphs 5 and 7 are reproduced below: 5. Section 115 is in the following terms: 115, the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears- (a) To have exercised a jurisdiction not vested in it by law (b) To have failed to exercise a jurisdiction so vested (c) To have acted in the exercise of its jurisdiction illegally or with material irregularity. The High Court may make such order in the case as it things fit. Shri Manisana Singh did not contend that the impugned order falls within the scope of Clauses (a) and (b) of the Section. He, however, submitted that order falls within the ambit of Clause (c). The interpretation of that clause has resulted in a crop of judicial pronouncements which are not only mutually irreconcilable but occasionally confounding. However, the pronouncements of the Privy Council in regard to interpretation of that clause since the year 1884 and a recent judgment of the Supreme Court, AIR 1953 SC 28 , Nemi Chand v. Edward Mills Co. Ltd., go a long way to solve the problem. In the case of Amir Hassan Khan v. Sheo Bakash Singh ILR (1885) Cal 6 (PC) the Privy Council observed as follows in regard to the exact scope of Section 622 of the former Code of Civil Procedure, which was replaced by Section115 of the present Code: The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them and they did decide it. Whether they decided rightly or wrongly, they had jurisdiction to decide the case and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity. Subsequently, in the case of Balakrishna Udayar v. Vasudeva, AIR 1917 PC 71, their Lordships of the Privy Council held: It will be observed that the Section applied to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The Section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. The Section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. Thereafter, the Privy Council happened to examine Clause (c) of Section 115 in the case of Venkatagiri v. Hindu Religious Endowments Board AIR 1949 PC 156. It was held therein that "Section 115 applies only to cases in which no appeal lies, and where the Legislature has provided no right to appeal, the manifest intention is that the order of trial Court, right or wrong, shall be final." The Privy Council then expounded the true meaning and scope of Clause (c) of Section 115 in the following terms: The Section empowers the High Court to satisfy itself upon three matters: (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law. There can be no justification whatsoever for the view that Section115(c) was intended to authorize the High Court to interfere and correct gross and palpable errors of subordinate Courts. It would indeed be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. In this particular case, the Privy Council set aside the judgment of the High Court on the ground that the High Court had interfered with the order of the subordinate Court on the basis that it (subordinate Court) had made a serious mistake in the Privy Council, the High Court had acted without jurisdiction in interfering with the order of the subordinate Court and so the order of the High Court could not be sustained. 7. In the light of principles set out above, I feel satisfied that this Court has no jurisdiction to interfere with the impugned order. 7. In the light of principles set out above, I feel satisfied that this Court has no jurisdiction to interfere with the impugned order. What happened in this Case was that an application was made to the Court for examining additional witnesses to prove a document lying on the file of a case pending in the Court of the District Judge. Notice of this application was given to the Defendants and after hearing the counsel for both the parties, the trial Court rejected the prayer. None can find fault with the procedure followed by that Court in disposing of the matter before it. The only criticism made is that since the power-of-attorney constituted an important piece of evidence in support of the Plaintiffs' case and since its non production may result in the dismissal of the suit, the Court went wrong in rejecting the application,. In view of the principles enunciated by the Privy Council in the case of Venkatagiri AIR 1949 PC 156 (Supra), it cannot be said that the trial Court has committed breach of any provision of law or has been guilty of some error of procedure. The Court had the jurisdiction to decide whether the prayer made by the Plaintiffs should be allowed or rejected. It was also imperative that before making up its mind the Court should allow an opportunity to both the parties to address arguments on the merits of the prayer made. All this was admittedly done and so if the decision reached was unsavoury to one party or the other, it cannot be urged plausible that the Court has violated any provision of law or procedural rule. To quote the words of the Supreme Court in the case of Nemi Chand AIR 1953 SC 28 (Supra), the objection raised by the Petitioners is "against the decision arrived at" and not against "the manner in which it is reached". Unless the Court violates a rule of law or a procedural provision prescribing the mode in which jurisdiction is to be exercised, the case would not fall under Clause (c). The impugned order is, therefore, not hit by Clause (c) and as such the present petition for revision is not maintainable. In Smti M.M. Amonkar and other v. Dr. Unless the Court violates a rule of law or a procedural provision prescribing the mode in which jurisdiction is to be exercised, the case would not fall under Clause (c). The impugned order is, therefore, not hit by Clause (c) and as such the present petition for revision is not maintainable. In Smti M.M. Amonkar and other v. Dr. S.A. Johari (supra) at paragraph 10, the Apex Court held that unless the reasons given by the trial court rejecting the application under Order 18 Rule 17 Code of Civil Procedure can be said to be moonshine, flimsy or irrational, the rejection of the application cannot be dubbed as suggestive of non judicial approach or bias or partially on the part of the trial court, merely because in the exercise of its discretion another court might have taken a different view and allowed the application, or because the reasons for giving a railing on a point or for rejecting an application may be wrong or disclose a non judicious exercise of discretion and open to correction in appeal. In the said case, allowing the appeal, the Apex Court held that the High Court was not right in reversing the concurrent finding of fact recorded by both Courts below. In the Salil Dutta v. T.M. and M.C. Private Limited (Supra), the Hon'ble Supreme Court held that improper advice of Advocate cannot as a rule be accepted as sufficient cause, it would depend on particular facts and circumstances of the case. In the said case, the Hon'ble Court found that the suit was posted for final hearing 7 years after its institution. Non appearance of Defendants on the date of final hearing alleged to be on account of advice of advocate. The Defendant's conduct found to be non cooperative with the Court and thus held that Defendant's application under Order 9 Rule 13 was not sustainable. In Prahlad Das v. Karunaram (supra) the Court had the occasion to deal with a similar case where the Apex Court at paragraph 7 and 8 held as follows: 7. Learned Counsel for the Petitioner cited RLW 1993 (2) 578, Shyam Das v. Praveen Kumar, in which the appeal remaining pending in due course for 9 years and there was no negligence on the part of the applicant. Learned Counsel for the Petitioner cited RLW 1993 (2) 578, Shyam Das v. Praveen Kumar, in which the appeal remaining pending in due course for 9 years and there was no negligence on the part of the applicant. It was observed that the applicant should not suffer on account of inaction or negligence on the part of his counsel and the restoration application was allowed. The facts of the cited case are different and it is not a case of restoration of appeal or a suit but recalling of the witnesses which is a discretion of the learned trial Judge. He also cited AIR 1981 SC 1400 : 1981 All LJ 704, Rafiq v. Munshilal, in which appeal was dismissed for default of the appellant’s counsel and it was observed that the party should not suffer for misdemeanour inaction of his counsel. This citation also does not help the Petitioner as the present one is not a case of dismissal of an appeal or a suit instead the Petitioner wants that the witnesses of Karunaram and Karunaram himself be resummoned for cross-examination. 8. Learned Counsel for the Respondents cited AIR 1954 Nag 252, Dwarkabai v. Ukharda Ganpat, in which Section 137 of the Indian Evidence Act was considered. Practice of pleader or party being absent was considered and it was held that the Court is not bound to wait for any length of time and thus waste public time if the pleaders do not turn up in Court at the right moment to cross examine the opposite party's witnesses. This appears to be the correct interpretation of Section 137 of Indian Evidence Act and when the Petitioner missed the bus for reasons best known to him, he cannot be allowed now to recall the witnesses and Karunaram for cross-examination. I am of a very clear view in this case that the learned District judge has correctly exercised his jurisdiction by disallowing the application. He has not committed any illegality or error of jurisdiction. 17. This Court considered the argument advanced by both the parties and have gone through the materials on record including the order sheets of the learned courts below. In order to appreciate the rival contentions, it would be appropriate to quote Order 18 Rule 2(4) and Order 18 Rule 17 of the Code of Civil Procedure. 17. This Court considered the argument advanced by both the parties and have gone through the materials on record including the order sheets of the learned courts below. In order to appreciate the rival contentions, it would be appropriate to quote Order 18 Rule 2(4) and Order 18 Rule 17 of the Code of Civil Procedure. Order 18 Rule 2(4) provides that notwithstanding anything contained in this rule the court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage. Order 18 Rule 17 provided that the court may at any stage of a suit recall any witness who has been examined and may (subject to law of evidence for the time being in force) put such questions to him as the court thinks fit. 18. The records of the case would reveal that the application filed on 6.8.1999 under Section 151 of the Code of Civil Procedure and the application filed under 18 Rule 2(4) and Order 18 Rule 17 on 16.11.1999, the prayer sought for in both the applications are same. The application dated 6.8.1999, on the admission of the parties, has become infructuous as held by the learned trial court. However, considering the relief sought for in the suit, the learned court below had allowed the Petitioner to cross-examine D.W. 1 and D.W. 2 which is affirmed by the Additional Deputy Commissioner, Shillong and hence this Court do not find any jurisdictional error committed by both the courts below. 19. Moreover, the record would show that the original Plaintiff and three of her witnesses were examined. PW 4 was examined on 8.11.96 and therefore allowing more witnesses to examine on behalf of the Petitioner is nothing but to delay the suit; the laches on the part of the Petitioner writ large on the face of the record and hence the learned court below is justified in rejecting the said prayer and therefore it cannot be said that, there is jurisdictional error committed by the courts below in the facts and circumstances of the case. 20. The record would further show that from 8.11.96 no other witnesses were examined by the Plaintiff/Petitioner and by order dated 5.6.97, the Plaintiff was given last chance to examine her witnesses and on failure to do so the learned court has closed the Plaintiff's evidence on 2.7.97. 20. The record would further show that from 8.11.96 no other witnesses were examined by the Plaintiff/Petitioner and by order dated 5.6.97, the Plaintiff was given last chance to examine her witnesses and on failure to do so the learned court has closed the Plaintiff's evidence on 2.7.97. Thereafter DW1 and DW2 were examined and the said facts would show that the Petitioner was aware of the dates passed by the court below and as such, the negligence cannot be attributed to the learned Counsel appearing for the Petitioner and no prejudice has been caused to the Petitioner by not allowing the witnesses to examine on behalf of the Petitioner and the same cannot be termed as jurisdictional error. 21. In regard to delay raised by the counsel for the Petitioner party in filing the Revision Petition, this Court holds that once the case is admitted, the question of limitation will not be allowed to be raised as has been held by the Supreme Court reported in AIR 1972 SC 908 (paragraph 8) (P.B. Roy v. Union of India) and therefore the question raised has no merit in the facts and circumstances of the case. 22. In reply to the provisions of Order 18 Rule 2(4) of the code and its applicability in the instant case would show that undue indulgences have been shown by the learned trial Court as it would reveal from the order sheet as indicated above and in the provision of Order 18 Rule 2(4) of the Code, the word 'may' is relevant in this context. A reading of the provision would show that it is discretionary in nature adding with the words, "for reasons to be recorded", which implies that the learned court below has rightly rejected the prayer considering the facts and circumstances of the case and this Court do not find any jurisdictional error committed by the learned courts below. 23. A reading of the provision would show that it is discretionary in nature adding with the words, "for reasons to be recorded", which implies that the learned court below has rightly rejected the prayer considering the facts and circumstances of the case and this Court do not find any jurisdictional error committed by the learned courts below. 23. This Court has also noticed from the record that in pursuance to the order dated 22.11.1999 passed by the learned trial court in T.S. No. 51(T) 1979, DW 1 and DW 2 have been cross-examined on 29.3.2000 and 20.4.2000 and thus the question of examination of further witnesses on behalf of the Plaintiff does not arise since the same was already rejected by the Court below and hence this Court hold that no illegality and/or material irregularity in exercise of the revisional jurisdiction has been committed by the courts below and as such, this Court is not inclined to interfere with the judgment and order dated 20.12.2001 passed in Civil Revision Petition No. 1(T) 2000 by the Additional Deputy Commissioner, Shillong. 24. In the result this Revision Petition is dismissed with costs of Rs. 2000/- (Rupees Two thousand) only. 25. The Registry is directed to transmit the case record to the learned Assistant to the Deputy Commissioner forthwith and on receipt of the case record the learned Assistant to the Deputy Commissioner, will take up the case and dispose of the same preferably within three months from the date of receipt of the record, since the case relates to the year 1979. Petition dismissed.