LAKHANLALJI MURTY Vs. CHAKRESWAR DAS RAI

JUDGEMENT

(1.) AN order dated 27. 08. 2004 passed by the learned Civil Judge (Sr. Division), Tinsukia, rejecting the prayer for further adjournment as made by the plaintiff in the suit and on that basis closing the evidence of the plaintiff and fixing the case for evidence of the defendants, is the subject-matter of challenge in the present proceeding instituted under Article 227 of the Constitution.

(2.) I have heard Mr. K. Agarwal, learned counsel appearing for the petitioner-plaintiff and Shri G. N. Sahewalla, learned Sr. counsel appearing for the respondents-defendants.

(3.) THE arguments advanced by the learned counsel for the respective parties have centered around the extent of the poser that would be available to this Court while exercising jurisdiction under Article 227 of the Constitution and as to whether in the given facts of the present case, interference with the impugned order dated 27. 08. 2004 would be justified. Mr. Agarwal, learned counsel appearing for the plaintiff-petitioner by referring to the several orders passed by the learned Trial Court, on various dates, has argued that the said orders go to show that the plaintiff-petitioner was unable to ensure the presence of the PW 4 for the purposes of completion of the cross-examination of the said witness on account of good and sufficient reason. It is further argued that though adjournments were granted earlier for the purposes of ensuring the presence of the PW 4 in Court, as on the date fixed i. e. on 27. 08. 2004, the said witness again could not be present in the Court for reasons beyond control, the refusal to adjourn the case and the closure of the evidence of the plaintiff's side discloses an error apparent on the face of the record and occasions a failure of justice. Learned counsel has further argued that the evidence of PW 4 has been placed in the form of an affidavit and cross-examination, in part, of the said witness has been made by the defendants. In such a situation, if the cross-examination of the said witness is to remain inconclusive, it is natural that entire of the evidence tendered by the said witness will be obliterated from the record of the proceedings, in which case the plaintiff-petitioner will suffer prejudice and injustice is likely to be caused. Therefore, it is argued, the power of this Court under Article 227 may be appropriately exercised by this Court in the peculiar facts of the present case.