JUDGMENT :

The present petition has been filed under Article 227 of the Constitution of India read with Section 151 of the Code of Civil Procedure, 1908 challenging, interalia, orders dated 02.03.2020 and 18.02.2021 in Title Suit No. 470/2017. In the aforesaid Title Suit, the learned Civil Judge, Sr. Division, No. 3, Kamrup (M) (hereinafter, learned Judge) had closed the evidence of the plaintiff witness without being cross examined and the defendant evidence has also been closed. It is contended that the aforesaid orders suffer from legal infirmity and are not sustainable in law. Therefore, the present application has been filed.

2. Before going to the issue which has arisen for determination, the brief facts of the case can be narrated as follows.

3. The present petitioner is the defendant, who is the tenant in the aforesaid suit which was instituted for ejectment. The respondent is the plaintiff, who had instituted the Suit for ejectment on the ground of default.

4. By the initial order of challenge dated 02.03.2020, the learned Judge recorded that the defendant was absent without steps and the report of the learned Advocate Commissioner was also perused. It was also submitted on behalf of the plaintiff that the defendant, despite being given several opportunities did not turn up to cross examine the plaintiff witnesses before the Commissioner. Even opportunities given by the Court for such cross examination in this regard. The learned Court accordingly held that it was presumed that the defendant had declined to cross examine the plaintiff witnesses. By the subsequent order dated 18.02.2021 the learned Court after recording that the date was fixed for DW but the defendant was absent without steps, the matter was posted for arguments.

5. Shri D. Mozumder, learned Senior Counsel for the petitioner has submitted that though the suit has been instituted for ejectment of the tenant, the fact was that there were security deposit of Rs.10(ten) lacs and therefore, there was no occasion of any default. It is submitted that various efforts were made by the plaintiff to cause inconvenience to the petitioner so that he leaves the premises. Amongst others, in front of the shop of the petitioner, a transformer was installed so as to disrupt the business of the petitioner for which the petitioner had to institute WP(C)/452/2017 in this Court.

6. It is the contention of the petitioner that though an Advocate was engaged for conducting the case, it appears that the said Advocate did not take any effective steps, which the petitioner was not aware of. On 01.02.2019 the plaintiff had submitted the evidence on affidavit and the matter was referred to the Advocate Commissioner for cross examination directing the parties to appear between 02.02.2019 and 03.04.2019 and the date fixed for Commissioner's Report was 04.04.2019. However, the learned counsel for the petitioner did not appear before the Commissioner on the dates for cross examination and when the matter was taken up on 04.04.2019, the Commissioner had submitted the Report to the effect that cross examination could not be completed due to absence of the defendant side. The Court accordingly directed the parties to appear before the learned Commissioner on 24.04.2019, failing which it would be presumed that cross examination is declined. The next date was accordingly fixed on 18.06.2019. The said date had to be extended further due to further default of the defendant. On the next date i.e. 29.08.2019, the Court was informed that due to some intervening factor, a new Commissioner had to be appointed. Accordingly, the same was done directing the parties to appear on 18.09.2019 before the Commissioner and the next date was fixed on 28.11.2019. As there was further default, another chance was given to the defendant for cross examination on 11.12.2019, fixing the next date as 02.03.2020.

7. On 02.03.2020, the defendant again defaulted to appear before the Court and on the said date, the learned Adv