Kalyan Rai Surana, J.

Heard Mr. K.K. Dey, the learned counsel appearing for the petitioner and Mr. H.R.A. Choudhury, learned Senior Counsel, assisted by Mr. A.T. Sarkar, the 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 09.01.2017, passed by the learned Civil Judge, Dhubri, in T.S.(M) Suit No. 42/2004, thereby rejecting the petition filed by the petitioner under Section 151 read with Order XVIII Rule 16 CPC to cross examine the PW-1. The respondent is the plaintiff in the said suit and the petitioner is the sole respondent therein.

3. The case projected by the respondent-plaintiff is that the respondent had taken a loan of Rs. 11,00,000/-. The respondent filed a suit for recovery of the said amount. By filing her written statement, the petitioner-defendant denied the transaction.

4. In course of time, the respondent examined himself as PW-1 by filing Evidence-on-affidavit on 08.05.2008 and the next date was fixed on 11.06.2008 for cross examination of PW-1. On 11.06.2008, the PW-3, who was present was cross examined and discharged. The plaintiff's prayer for adjournment was allowed by fixing the suit on 08.07.2008 for further evidence and for cross of PW-1. Both sides availed adjournments from time to time and on 26.05.2009, the respondent-plaintiff filed petition No. 728 under Order XXVI Rule 9 CPC for permitting the PW-1 to be cross examined on Commission. After several adjournments, the matter was heard and by order dated 04.02.2010, the learned trial court being satisfied about the illness of PW-1, allowed the petition under Order XXVI Rule 9 CPC for cross examining PW-1 on Commission. One Advocate Commissioner was appointed from the Dhubri Bar Association was appointed for recording the deposition/cross-examination of PW-1 at the residence of PW-1. Later on, by order dated 03.05.2010, the previously appointed Advocate Commissioner was substituted by appointing another Advocate Commissioner.

5. Very sadly, although the newly appointed Commissioner pocked his Commissioner's fees on 03.05.2010 itself, the learned Commissioner appointed for the purpose of recording deposition/cross-examination of PW-1 took innumerable adjournments from 20.05.2010 to 19.01.2015 for submitting his report, but he failed to act in terms of his appointment. Lastly, on the prayer made by the learned Commissioner for allowing some more time to file his report, the learned Civil Judge, Dhubri, allowed the prayer and fixed 06.02.2015 for filing of the report.

6. On 30.01.2015, the petitioner by filing petition No. 234, prayed for adjourning the cross-examination of PW-1 on the ground that the engaged Counsel, namely, Sri Sanjib Kumar Sur is presently residing at Siliguri (W.B.) and as the brief was kept with him, it is not possible for the present counsel to cross examine PW-1 and prayed for adjournment of the Commission by 1 (one) month to make communication with the respondent-defendant and also to collect the brief. The learned Civil Judge, Dhubri, by order dated 30.01.2015, rejected the said petition for the reason that the ground that the counsel did not have the brief and that he had not communicated and taken instructions from the defendant is not reasonable.

7. Thereafter, the counsel remained absent on 01.02.2015, when the PW-1 was to be cross-examined at his residence. The Commissioner waited till 1.26 pm and after making his report, had left the place. On the date fixed, i.e. on 06.02.2015, the Commissioner's report vide petition No. 282 was submitted and the learned Civil Judge, Dhubri accepted the said report and the Commissioner was discharged. The learned trial Court recorded the statement made by the learned Counsel for the respondent that the plaintiff did not want to examine any more witness. Hence, by the said order dated 06.02.2015, the evidence of plaintiff's side was closed and the case was fixed for argument on 02