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2017 DIGILAW 148 (GAU)

NEW PHARMA DISTRIBUTOR v. CENTRAL BANK OF INDIA

2017-02-03

KALYAN RAI SURANA

body2017
ORDER : 1. Heard Mr. S.S. Roy, learned counsel for the petitioner. Also heard Mr. S. Samaria, learned counsel for the respondent. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 21.11.2016 passed by the learned Civil Judge, Sivasagar in Title Suit No. 41/2008, by which the petition seeking adjournment for cross-examination of the defendant witness was closed and the suit was fixed for argument. 3. As directed vide order dated 23.01.2017, the learned counsel for the petitioner has produced the certified copy of the order-sheet from 28.09.2015 to 17.02.2016 along with a typed copy thereof. On perusal of the same it is seen that the suit was fixed before the court of learned Commissioner on 28.09.2015, 19.10.2015, 09.12.2015, 06.01.2016, 23.02.2016, 31.03.2016, 22.04.2016, 26.05.2016, 27.06.2016, 25.07.2016 and on 29.08.2016. The learned Civil Judge recorded in the order-sheet that as per the record the PW. 1 had already been cross-examined earlier and therefore, the case was pending for DWs since 28.09.2015 and the suit was wrongly posted for cross of PWs and thereafter, granted one last liberty to defendant to adduce DWs on 22.09.2016, which was the next date fixed in the suit. On the date fixed, the defendant’s side filed the affidavit of witness No. 1 and fixed the suit for cross-examination of DWs on 21.11.2016. On the said date the learned counsel for the defendant filed the prayer for adjournment which was rejected and the DWs was closed, fixing the suit on 17.012.2016 for argument. The said order has been challenged by filing this revision. 4. The learned counsel for the petitioner submits that he was directed by the court by order dated 29.08.2016 to adduce the evidence of defendant’s witness and on the very next date he had filed the evidence on affidavit of the defendant’s witness No. 1. But for reasons as stated in the petition, on the very next date he could not produce his witness for cross-examination and despite his first prayer for adjournment on 21.11.2016, the learned court below had rejected the said prayer by closing the DWs. 5. Per contra, Mr. Samaria, learned counsel for the respondent submits that as the defendant’s side had duly cross-examined the PW. 5. Per contra, Mr. Samaria, learned counsel for the respondent submits that as the defendant’s side had duly cross-examined the PW. 1 they were aware about the fact that there were no further PWs to be cross-examined and therefore, they are not permitted to take the plea about the mistake committed by the court and he submits that the present revision be dismissed. 6. In the opinion of this Court as the suit was fixed for cross-examination of PWs and for Commissioner’s report, the wisdom of the learned counsel for the defendant’s side cannot be faulted with because in an ordinary course of legal practice it is common place for a lawyer to rely on the cause list of the court to take the next date and this state of the case on the next date from the said cause list. Therefore, it is quite believable that the defendant was under an impression that the case is fixed for PWs. It is further seen that after the learned court of Civil Judge, Sivasagar passed an order on 29.08.2016, directing the evidence of DWs to be filed on the next date. The said order was duly complied with and therefore, the rejection of the first prayer for adjournment made on 22.09.2016 appears to be too harsh. On the principle that an act of the court shall prejudice no one, this court is of the view that the impugned order is liable to be interfered with. 7. It has been submitted at the bar that the suit before the Trial Court is otherwise fixed today. 8. In view of that has been stated above, the impugned order dated 21.11.2016 is set aside. The parties will appear before the learned Civil Judge, Sivasagar on 28.02.2017, on which date the petitioner’s side will produce the DW. 1 for the cross-examination by the plaintiff’s side. It has been stated at the bar by the learned counsel for the petitioner that the DW. 1 is currently suffering from ill health and he has been shifted to Hyderabad for better treatment. In that event, it is provided that if the DW. 1 cannot appear in the court to face cross-examination, the petitioner herein may produce the medical reports before the Trial Court to seek such further extension of time as may be deemed reasonable or to face cross-examination on Commission. In that event, it is provided that if the DW. 1 cannot appear in the court to face cross-examination, the petitioner herein may produce the medical reports before the Trial Court to seek such further extension of time as may be deemed reasonable or to face cross-examination on Commission. The cross-examination of the DWs should be completed within a period of three months. 9. The revision stands allowed on terms indicated above. There shall be no order as to cost.