JUDGMENT : 1. The petitioner and the opposite party no.1, both doctors by profession, are presently settled abroad. While the opposite party no.1 is engaged in the United Kingdom, the petitioner is working as a pediatrician in Oman. 2. Incidentally, one is the spouse of the other. They are, however, engaged in a bitter fight in a suit for declaration and injunction instituted by the opposite party no.1 over property rights. The learned Civil Judge (Senior Division), 3rd Court at Alipore is in seisin of the suit registered as Title Suit No.11 of 2007, wherein the petitioner has set up a counter claim too. 3. The real dispute between the parties is in respect of monies standing to the credit of various joint accounts maintained by them in different banks, specifically mentioned in the schedule of the plaint as well as in the counter-claim. 4. The plaintiff/opposite party no.1 had the occasion to approach this Court by filing an application under Article 227 of the Constitution, registered as C.O. 1877 of 2010. He voiced a grievance that although the suit had matured for hearing as far back as in November, 2008 and a direction had been passed by the trial Court for day to day hearing of the suit, cross-examination of the plaintiff’s witness, i.e. P.W.1 (the opposite party no.1 himself) had not been concluded. 5. C.O. 1877 of 2010 was moved on July 12, 2010 before a learned Judge of this Court. The Court was informed that the opposite party no.1 had come to India for giving his evidence in the suit and since he would be leaving India for the United Kingdom after July 23, 2010, the trial Court may be directed to fix a date before July 23, 2010 so that his cross-examination could be concluded before his departure. 6. Accepting the submission of the learned advocate for the petitioner (opposite party no.1 herein), the application was disposed of by the learned Judge requesting the trial Court to fix a date before July 23, 2010 so that the cross-examination of P.W.1 could be concluded before he leaves the country. It was made clear that such order would become effective only if the same is intimated to the learned advocate on record of the opposite party no.1 (petitioner herein) in the trial Court immediately so that she is not taken by surprise regarding the direction contained therein. 7. It was made clear that such order would become effective only if the same is intimated to the learned advocate on record of the opposite party no.1 (petitioner herein) in the trial Court immediately so that she is not taken by surprise regarding the direction contained therein. 7. The order dated July 12, 2010, was duly communicated to the learned advocate for the defendant no.1 (petitioner herein) as well as to the trial Court. 8. The trial Court in order no.64 dated July 14, 2010 recorded receipt of photocopy of the order dated July 12, 2010. The learned advocate for the defendant no.1 prayed for some time to enable him cross-examine P.W.1. Considering the fact that the trial Court was bound to comply with this Court’s order, July 16, 2010 was fixed as the date for cross4 examination of P.W.1 to ensure that cross-examination is completed before July 23, 2010, as directed. 9. On July16, 2010, a petition praying for time was filed on behalf of the defendant no.1. It was stated therein that she was a non-resident Indian, working in Dubai; that for the purpose of effective cross-examination, she had to be contacted; that the father of the defendant no.1 could not provide the required details and necessary instruction; that the defendant no.1 within such short span of time has not been able to furnish the wanting details; and hence adjournment may be granted. After hearing the parties and for securing ends of justice, the trial Court granted the prayer for adjournment and fixed consecutive dates from July 19, 2010 to July 22, 2010 for cross-examination of P.W.1. Request was made to the learned advocate for the defendant no.1 to cooperate with the Court for smooth compliance of the order of this Court. 10. An adjournment petition was once again filed on behalf of the defendant no.1 on July 19, 2010. The ground assigned therein in support of the prayer was that the learned advocate on record of the defendant no.1 is engaged in a case at Sealdah Court and it would not be possible for him to appear for conducting cross-examination. The prayer was objected to by the learned advocate for the plaintiff. The trial Court recorded the antecedent facts and for ends of justice, adjourned hearing for the day and fixed July 20, 2010 for cross-examination. 11. The prayer was objected to by the learned advocate for the plaintiff. The trial Court recorded the antecedent facts and for ends of justice, adjourned hearing for the day and fixed July 20, 2010 for cross-examination. 11. Once again, time petition was filed on July 20, 2010 on behalf of the defendant no.1. Adjournment was prayed for on the ground that the defendant no.1 would be available after August 17, 2010 and, therefore, a date ought to be fixed accordingly. The trial Court refused to accept the prayer for adjournment and requested the learned advocate for the defendant no.1 to cross-examine P.W.1. However, the learned advocate declined to put questions and July 21, 2010 was fixed for evidence. 12. On that date (July 21, 2010), no step was taken on behalf of the defendant no.1 although the plaintiff being P.W.1 was present in Court. Hearing was adjourned till July 22, 2010 for further evidence and order. 13. The plaintiff was present in Court on July 22, 2010; however, no step again was taken on behalf of the defendant no.1. The trial Court for reasons recorded in the order passed on that date directed that evidence of P.W.1 is closed and discharged him. Hearing of the suit was adjourned till August 4, 2010 for further evidence of the plaintiff, if any. 14. An application for recalling the order dated July 22, 2010 was filed on behalf of the defendant no.1 on August 9, 2010. The plaintiff opposed the application by filing a written objection. The application was considered by the trial Court and on contested hearing, by an order dated August 26, 2010, it rejected the application for reasons recorded therein. 15. Legality and/or propriety of the order dated August 26, 2010 is questioned by the defendant no.1 in this application under Article 227 of the Constitution. 16. Mr. Roy, learned advocate for the defendant no.1/petitioner contended that the plaintiff sought for adjournments on several occasions (October 20, 2008, January 27, 2009, March 27, 2009 and June 26, 2009), which were not brought to the notice of this Court while C.O. 1877 of 2010 was considered. Furthermore, although by the order dated September 1, 2009 the trial Court had directed day to day hearing, on December 7, 2009, judicial work could not be transacted because of a cease work call given by the learned advocates. Furthermore, although by the order dated September 1, 2009 the trial Court had directed day to day hearing, on December 7, 2009, judicial work could not be transacted because of a cease work call given by the learned advocates. On December 8, 2009, a petition under Order I Rule 10(2) read with Section 151, Civil Procedure Code was filed by the defendant no.1 with a prayer for addition of party. By an order dated December 8, 2009, the petition was posted for hearing on December 9, 2009. The application was heard on December 9, 2009 and was dismissed by an order dated December 11, 2009. The trial Court having noticed that the suit had not been appropriately valued, fixed December 22, 2009 for hearing with regard to the valuation of the suit. Thereafter, the trial Court came to a definite conclusion that the suit had been under valued. In the process, the trial Court by order dated May 5, 2010 passed an order for putting in deficit court fees and directed the parties to do the needful by June 5, 2010. The plaintiff did put in deficit court fees on June 5, 2010, which was recorded in the order passed that day. However, on a petition filed on behalf of the defendant no.1, June 16, 2010 was fixed for putting in deficit court fees by her. Extension of time to file deficit court fees was allowed by the next order dated June 16, 2010. Ultimately, the defendant no.1 put in deficit court fees, which has been recorded in the order dated July 16, 2010. In such circumstances, he contended that it was not a case where the defendant no.1 unilaterally was responsible for the delay in conclusion of trial of the suit. 17. Referring to the list of dates annexed to C.O. 1877 of 2010, Mr. Roy contended that the plaintiff had conveniently not mentioned the dates on which he himself had taken adjournments and thereby misled the Court. According to him, the plaintiff in C.O. 1877 of 2010 had suppressed material facts. The application was disposed of on the day it was moved, without even putting the defendant no.1 on notice. Had notice been served, this Court could have been apprised of the relevant facts and convinced that there was no real urgency for a direction that cross-examination of P.W.1 has to be completed within July 23, 2010. 18. The application was disposed of on the day it was moved, without even putting the defendant no.1 on notice. Had notice been served, this Court could have been apprised of the relevant facts and convinced that there was no real urgency for a direction that cross-examination of P.W.1 has to be completed within July 23, 2010. 18. Accordingly, he urged the Court to set aside the order dated August 26, 2010 and consequently the order dated July 22, 2010 whereby the evidence of P.W.1 was closed. 19. Mr. Ghosh, learned advocate for the plaintiff/opposite party no.1 opposed the contention of Mr. Roy in regard to suppression and by referring to the cause title in C.O. 1877 of 2010 sought to contend that the fact that the defendant no.1 was serving in Oman was clearly depicted. That apart, the plaint of T.S. No.11 of 2007 was also a part of the application wherein sufficient indication was made to the effect that the defendant no.1 has been working in Oman as a pediatrician. According to him, the Court was never misled by the plaintiff and considering the fact that cross-examination of P.W.1 was being unduly delayed, direction was passed requesting the trial Court to conclude the cross-examination of the plaintiff by July 23, 2010. 20. Mr. Ghosh also took pains to demonstrate from the lower court records the number of adjournments sought for by the learned advocate for the defendant no.1. According to him, the learned advocate himself had prayed for fixation of a date on and from July 20, 2010. Even if he was otherwise preoccupied or disabled to conduct cross-examination on July 16, 19, and 20, 2010, there was no valid reason for not cross-examining the plaintiff on July 22, 2010 and July 23, 2010. The father of the defendant no.1 was her constituted attorney, who has been giving instructions all along while the defendant no.1 is away and, therefore, non-availability of the defendant no.1 was nothing but part of dilatory strategy to gain time. The conduct of the defendant no.1 strongly indicates a veiled attempt to prevent the trial Court from expediting its decision on the suit. He contended that the trial Court was bound to respect the order of this Court and had no other alternative but to close the evidence of P.W.1 for non-cooperation of the defendant no.1. The conduct of the defendant no.1 strongly indicates a veiled attempt to prevent the trial Court from expediting its decision on the suit. He contended that the trial Court was bound to respect the order of this Court and had no other alternative but to close the evidence of P.W.1 for non-cooperation of the defendant no.1. In rejecting the application for recalling, the trial Court also did not act in an objectionable manner calling for interference. He, accordingly, prayed for dismissal of the application. 21. I have heard Mr. Roy and Mr. Ghosh, learned advocates for the parties at length and perused the orders passed from time to time by the trial Court from its records, which were called for to effectively adjudicate the issue involved herein. 22. Upon hearing the parties and perusal of the lower court records pertaining to T.S. No.11 of 2007 as well as the records of C.O. 1877 of 2010, I have no hesitation to hold that there is justification in the contention of Mr. Roy that the defendant no.1 has been given a raw deal. The very fact that the parties have put forth claim and counter10 claim manifests an uncompromising attitude of spouses whose relation has turned bitter. In the circumstances, it is but obvious that one would not leave any stone unturned to achieve whatever advantage that may be available to steal a march over the other. On perusal of the lower court records, I am ad idem with Mr. Roy that the defendant no.1 was not entirely responsible for the delay in disposal of the suit. Also, the situation was not such, when C.O. 1877 of 2010 was moved and whatever was projected, that it could not brook any delay and required immediate disposal. 23. To my mind, if cross-examination of the plaintiff by the defendant no.1 were to be closed the same would result in irreparable prejudice to her. Closure of evidence of P.W.1 has been directed by the trial Court for the failure of the defendant no.1 to cross-examine the plaintiff and in due deference to this Court’s order dated July 12, 2010. To my mind, if cross-examination of the plaintiff by the defendant no.1 were to be closed the same would result in irreparable prejudice to her. Closure of evidence of P.W.1 has been directed by the trial Court for the failure of the defendant no.1 to cross-examine the plaintiff and in due deference to this Court’s order dated July 12, 2010. I am of the firm view, on perusal of records of C.O. 1877 of 2010 and in particular the markings made by the learned Judge on the list of dates appended to such application as well as markings on the certified copy of the orders passed from time to time by the trial Court that the fact that the defendant no.1 is a non-resident Indian like the plaintiff and not being in the country at the relevant point of time was never attempted to be brought to the notice of the learned Judge. While hearing an application, seldom the Court looks into the cause title for finding out the address of a party, unless of course for a special purpose attention is drawn to it by a party to the lis. One does not know for sure whether the order dated July 12, 2010 would have been passed if indeed the learned Judge was apprised of the fact that the defendant no.1 is a nonresident Indian and is unavailable. The plaintiff cannot be allowed to steal a march over the defendant no.1 on the basis of the ex-parte order dated July 12, 2010. I do not for a moment wish to think that any fraud was practised on this Court, but that there was some element of hide and seek on the part of the plaintiff coupled with able advocacy in not disclosing the full facts about the position of the defendant no.1 cannot be totally ruled out. True it is, the defendant no.1 did not apply for recalling of the order dated July 12, 2010; yet, one cannot lose sight of fact that dispensation of justice cannot be a one sided affair. While the predicament of the plaintiff in leaving the country immediately after July 23, 2010 was worthy of consideration, one cannot be insensitive and brush aside the absence of the defendant no.1 and her inability to provide complete and full instructions to her learned advocate for ensuring effective cross-examination. While the predicament of the plaintiff in leaving the country immediately after July 23, 2010 was worthy of consideration, one cannot be insensitive and brush aside the absence of the defendant no.1 and her inability to provide complete and full instructions to her learned advocate for ensuring effective cross-examination. If it is inconvenient for the plaintiff to stay back in India leaving aside his official job in the United Kingdom, the same applies to the defendant no.1 too who is stationed in Oman. Although the trial Court was under an obligation to act in terms of the order dated July 12, 2010, having regard to the fact that the defendant no.1 was not available during the period under consideration and learned advocate on her behalf had expressed that he was disabled for want of instructions, this is a fit and proper case where further directions ought to issue from this Court for promoting justice rather than defeating it by upholding the impugned order and the order closing the evidence of P.W.1. 24. I hasten to add that I have thought it fit to go behind the order dated July 12, 2010, since it was not passed upon hearing the defendant no.1. I do not consider it to be in violation of any principle of law, for, an act of Court ought not to harm a litigant (actus curiae neminem gravabit) is well accepted. 25. The order impugned dated August 26, 2010 as well as the previous order dated July 22, 2010 stand set aside. 26. I have gathered from Mr. Ghosh that the plaintiff shall revisit the country in August, 2011 and shall be available in the second week thereof. Accordingly, I direct that the trial Court shall, if necessary on day to day basis between August 8, 2011 and August 12, 2011, allow the learned advocate of the defendant no.1 to cross examine P.W.1. Under no circumstances, shall any adjournment be granted to the defendant no.1, except for compelling reasons that might physically disable the learned advocate from cross-examining the P.W.1. In such case, however, the defendant no.1 shall make alternative arrangements. It is also made clear that if for some reason or the other the plaintiff does not visit India during August 2011 and the trial Court is informed of the same, it shall proceed to fix further dates according to its convenience. In such case, however, the defendant no.1 shall make alternative arrangements. It is also made clear that if for some reason or the other the plaintiff does not visit India during August 2011 and the trial Court is informed of the same, it shall proceed to fix further dates according to its convenience. The parties shall cooperate with the trial Court to the fullest extent possible so as to bring an end to the lis as early as possible. 27. The application succeeds and is allowed. However, there shall be no order as to costs. 28. Records of T.S. No.11 of 2007 shall be sent back to the trial Court immediately. Records of C.O. 1877 of 2010 shall stand detagged and be sent down to the department. 29. Urgent Photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.