Point of Law: Payment of costs imposed only can be considered to be ‘special circumstances’ which were beyond knowledge and control of petitioner/defendant under Order 17 rule 2 of Civil Procedure Code.

JUDGMENT :

Heard Mr. S.Biswas, learned counsel for the petitioner along with Mr. S.Deka, learned Sr. Counsel for the opposite party.

2. This is a revision petition filed against the impugned Order dated 30.04.2019 passed in Title Suit No.16/2017 by the Civil Judge, Hailakandi, in which the cross examination of PW-1 was expunged and against the order dated 31.08.2019 in Misc. Cases No.65/2019 wherein the prayer for allowing the petitioner/defendant to cross-examine the Pw-1 witness was rejected.

3. The case of the petitioner is that the respondents/plaintiffs had filed a suit being T.S. No.16/2017 before the learned Court of Civil Judge, Hailakandi, for a decree declaring that the petitioner/defendant is not entitled to claim and/or demand any interest and/or right, title, interest and authority over the Schedule A and/or other property, owned by Sri Ramawatar Agarwal (since deceased) as mentioned in the Title Suit No. 16/2017. The petitioner/defendant filed his written statement denying all the averments made in the plaint. The case was proceeded with and on 30.04.2019 the case was fixed for cross examination of the Pw-1. However, on that day, the engaged counsel appearing on behalf of the petitioner i.e. Mr. Nurul Huda who is aged about 75 years was seriously ill and under treatment in Mumbai and had also failed to appear on the other dates i.e. on 18.12.2018, 11.03.2019 and 08.04.2019. The petitioner/defendant was residing in Delhi where he was having his clinic and was unaware about these developments. As a result in absence of any steps being taken on behalf of the petitioner/defendant, the cross-examination of the Pw-1 was expunged vide the impugned order dated 30.04.2019, holding that the defendant side had failed to cross-examine the PW’S on 18.12.2018, 11.03.2019 and on 08.04.2019 and that the defendant had also failed to pay the cost in terms of the order dated 11.03.2019 and 08.04.2019. Thereafter on 28.06.2019 a petition under section 151 of the Code of Civil Procedure, 1908 was filed on behalf of the petitioner/defendant with a prayer to allow the petitioner/defendant to cross examine the Pw-1 which was registered as Misc. Case No.65/2019. The petitioner/defendant also paid the cost of Rs.3000/-(Rupees three thousand only) through his newly engaged counsel on 28.06.2019. The learned court of Civil Judge, Hailakandi, vide the impugned order dated 31.08.2019 dismissed the Misc. Case No.65/2019 holding that the court has no power to do what is prohibited by law or the court by purported exercise of its inherent power. Hence, the instant Revision Petition.

4. Mr. S. Biswas, learned counsel for the petitioner submits that the impugned orders dated 30.04.2019 and 31.08.2019 is liable to be set aside since the reason why the counsel for the defendant/appellant was absent on the dates fixed for cross examination of the plaintiff witness has been clearly explained. That the engaged counsel aged about 75 years was under treatment in Mumbai during those period i.e. on 18.12.2018, 11.03.2019 and 08.04.2019, while the appellant/defendant was a Doctor residing in Delhi and was not aware of the said developments. That in the order dated 31.08.2019, the learned Trial Court has clearly mentioned that the fees imposed amounting to Rs.3,000/-has been duly paid through the new counsel engaged by the petitioner/defendant. Inspite the above circumstances which was beyond the control of the petitioner/defendant, the learned Trial Court had failed to consider the circumstances and passed the impugned order dated 31.08.2019, wherein, it was not due to any deliberate fault committed by the petitioner/defendant. The learned counsel further submits that great in justice would be done to the petitioner/defendant, if he is not given a chance to cross-examine the PW-1 since this case is regarding his right to claim 1/6th share in the property of Late Ramawatar, which he, being one of the legal heirs, is entitled to get.

5. The learned counsel for the