Timely delivery of justice and the consequences of non-payment of costs as a condition precedent.

Heard Mr. S. Biswas, learned counsel for the petitioner as well as Mr. N. Dhar, learned counsel appearing for the respondents.

2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 18.02.2015 passed by the learned Munsiff No. 3, Cachar, Silchar in T.S. No. 95/2005, rejecting the application for recalling the order dated 10.11.2014 and to cross-examine PWs No. 1 and 2.

3. On the perusal of the order dated 18.02.2015 passed by the learned trial court, it appears that on an earlier occasion by an order dated 31.08.2013, the cross-examination of the PWs was dispensed with and the evidence of PWs No. 1 and 2 was closed because the petitioner/defendant’s side remain absent till 12:15 PM. On an application being filed for recall of the order, the order dated 31.08.2013 was recalled by order dated 26.09.2014 at the cost of Rs.1500/- as a condition precedent and in course of time, the case was fixed on 10.11.2014. On that date, both the PWs. No. 1 and 2 were present but the petitioner/ defendant’s side did not turn up till 2:45 PM even after repeated calls and therefore, by order dated 10.11.2014, the cross-examination of PWs No. 1 and 2 were dispensed with by declaring the same as cross declined and the evidence of PWs were closed.

4. It is projected that on 10.11.2014, after the cross-examination was closed by passing order dated 10.11.2014, the petitioner/defendants filed an application being Petition No. 58/2010, by which prayer was made to vacate the order of closing the evidence of PWs No. 1 and 2 and to allow him to cross-examine the said witness and to further allow the petitioner/defendants to deposit an amount of Rs.1500/-.

5. The respondent/plaintiffs had filed their written objection and considering the submissions made by both sides, the learned trial court by referring to the previous default and the failure to cross-examine the witness on 10.11.2014 and the non-deposit of the cost of Rs.1500/-, which was condition precedent, held that there was no reason to allow any more opportunity to the petitioner/defendant in this regard and the petition was rejected. The said order dated 18.02.2015 is assailed in the present application.

6. The learned counsel for the petitioner has strenuously argued to permit him a last chance to cross-examine the PWs. No. 1 and 2. It is submitted that unless he is permitted to cross-examine the said PWs, his entire suit would lapsed. It is further submitted that he had approached the respondents/plaintiffs to give the cost but the same was refused. It is further prayed for ends of justice a last opportunity may be given and on the next date, if allowed, he cross-examine both the PWs without any fail. He also stated that the petitioner/ defendant was ready to also pay additional cost, if any, imposed by the court for the inadvertent default on part of his Advocate to cross-examine the PWs.

7. Mr. N. Dhar, learned counsel for the respondents has argued in support of the impugned order.

8. Having considered the submissions advanced by both sides, this Court is of the view that could have been a different matter if an adjournment was prayed for at 10:30 AM when the court had started its work. But to make the witness to sit for the entire day till 2:45 PM is found to be inexcusable. It amounts to a sort of punishment to a witness who had come to depose in a suit. This is a practice, which must be strongly deprecated, as it wastes an entire day of such witness.

9. The Apex Court in the case of Gayathri v. M. Girish, reported in AIR 2016 SC 3559 has deprecated the giving of adjournment at the drop of the hat. This Court is of the view that if a witness is present in court then the adversarial party cannot avoid to cross-examine such witness as was done in this case. By not conducting the cross-examination since 31.08.2013, the trial of the suit has been delayed for 4(four) years now. This is an appropriate time to quote a