1. Though a separate application is not filed for condonation of delay of 27 days, in the appeal itself, such prayer was sought. We have gone through the contents of the appeal. We are of the opinion that delay deserves to be condoned and, accordingly, is condoned. Then coming to the challenge in the appeal, it is with regard to the impugned order dated 11.3.2015. It is just and proper to mention certain facts pertaining to this case with reference to earlier proceedings. The suit is filed by the appellant herein claiming damages for defamation against the respondents. On an earlier occasion, the matter went up to the Hon’ble Apex Court wherein there was a direction to proceed with the matter after depositing certain amount of costs to the Legal Services Authority by the appellant herein which, according to the appellant, has been paid.

2. It is also pertinent to mention that earlier the respondent/defendant did not file written statement and the evidence was taken up ex parte, which came to be set aside permitting the written statement of the defendant to be brought on record so as to permit the parties to proceed with the matter on merits. This is how the matter is being contested between the parties right from 2004 onwards. The matter is still at the stage of recording the evidence of the plaintiff’s witness when the impugned order came to be passed.

3. On 9.3.2015 the matter came up for recording the evidence of the plaintiff on which date as per the material placed on record, we note, the plaintiffs brought to the notice of the Hon’ble Court that the plaintiff and the witness would not be available from 10.3.2015 onwards on account of annual celebrations and also other official commitments in respect of Carnival to be held at Kolkata and also at Sikkim. Learned Judge, apparently observed that if the matter cannot be taken up on 9.3.2015, it shall be adjourned till December, 2015 in the combined list. At that point of time, the plaintiff’s evidence which was commenced on 2.3.15 i.e. examination-in-chief was completed and a portion of cross-examination was also brought on record. The matter appeared on 10.3.2015. As the Court had to deal with the petitions filed under Article 226 of the Constitution on 10.3.2015, recording of evidence in original suit was not taken up. Therefore, though the witness was present on 10.3.2015, crossexamination could not be proceeded further.

4. On 11.3.2015 apparently the plaintiff’s witness, P.W.1 was not present and the Learned Judge proceeded to pass the following order :-

“The Court : The witness of the plaintiff was being cross-examined. Prayer for adjournment of the hearing of the suit was made on behalf of the plaintiff on two previous occasions on the same ground that the witness under oath would leave station for official purpose. Such prayers were refused. Today the plaintiff is not in a position to produce the circumstances, the evidence of the plaintiff so far as the first witness cannot be relied upon as such witness has not presented himself for further cross-examination. The plaintiff is called upon to produce any other witness. It is submitted on behalf of the plaintiff that they have no other witness to produce. In such circumstances the evidence on the part of the plaintiff is closed.

5. Since the plaintiff has not proved its case, C.S. 126 of 2004 is dismissed. No order as to costs. Interim orders, if any, are vacated.”

6. Subsequently, recalling application came to be filed and the same was also dismissed by referring to order dated 11.3.2015. Prior to seeking adjournment on 11.3.2015, a letter was addressed to the Advocate for the respondent/defendant indicating non-availability of the witness between 10.3.2015 to 28.3.2015. From the material placed on record, there were two events in which, according to the appellant, P.W.1 had to take part - one at Kolkata, which was scheduled to be held between 11.3.2015 to 13.3.2015 and another at Sikkim scheduled on 17.3.2015 onwards.

7. Con

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