JUDGMENT
B.K. Sharma, J.
1. By means of this application under Articles 226/227 of the Constitution of India, the petitioner Bank has assailed the legality and validity of the order passed by the trial Court firstly refusing to grant adjournment in respect of hearing of the particular suit and secondly, dismissing the suit upon expunction of evidence of particular witness.
2. Briefly stated, the facts leading to filing of the instant applications are as follows:
The respondents No. 1 to 4, of which the Respondent No. 1 is the partnership firm registered under the Partnership Act, 1932 with the Respondents Nos. 2, 3 and 4 as partners were sanctioned with a credit facility in the nature of cash-credit facility (Supply Bill) account by the petitioner-Bank to the tune of Rs. 9,00,000/- with the terms and conditions as stipulated in the letter of sanction dated 23.09.1986. The respondents availed the credit facility by executing various loan documents on 27.09.1986 in favour of the petitioner-Bank and also created mortgage of some properties. After 27.09.1986 also, the respondents executed various other loan documents from time to time acknowledging their liabilities towards the petitioner.
3. According to the petitioner, the respondents availing the aforesaid credit facility from the petitioner-Bank committed severe breach of covenants contained in the security documents and committed default in re-payment of dues. Situated thus, the petitioner-Bank issued demand notice dated 07.02.1995 whereby the respondents were called upon to pay the sum of Rs. 1, 05,966.07 with interest calculated upto 30.06.1994 being the balance due under the Cash-Credit (Supply Bill) Account.
4. When the demand notice did not yield any result, the petitioner as plaintiff, filed a suit being Title Suit No. 55/1996 in the Court of the learned Civil Judge (Sr. Divn.) No. 2, Kamrup, Guwahati for recovery of Rs. 1,31,904.07 along with interest thereon from 26.03.1996 till realization, at the rate of 18.75% per annum. After issuance of notice etc., the respondents entered appearance in the suit for the first time on 26.09.1997 and prayed for furnishing the documents referred to and relied upon by the petitioner in the suit. The prayer was allowed by the trial Court and thereafter, in spite of granting several opportunities to file written statement, the respondents failed to do so and the trial Court by its orders dated 18.01.2001,22.08.2002, 30.09.2002, 24.01.2003 and 04.06.2003 ordered that the suit be proceeded ex parte against the respondents. The trial Court also imposed cost upon the respondents on various dates on their failure to file written statement.
5. In spite of the aforesaid orders passed by the trial Court, the respondents filed several applications for setting aside the orders pertaining to the ex parte proceeding but such prayers were rejected vide orders dated 22.08.2002, 24.01.2003, 04.06.2003, 11.07.2003,21.08.2003 and 29.11.2003. In view of this position, the proceedings in the suit proceeded ex parte against the respondents.
6. On 12.01.2004, the Court works were suspended due to demise of a member of the Bar on which date, the Respondents No. 1 to 4 filed an application being Petition No. 138/2004 once again praying for vacating the orders for ex parte proceeding. The matter was thereafter fixed on 13.02.2004 on which date also, the case was adjourned fixing the next date as 17.03.2004 for passing necessary order.
7. On the next date so fixed i.e., 17.03.2004, the petitioner-Bank through P.W. 1 filed an evidence on affidavit. On the other hand, petition No. 138/2004 filed on 12.01.2004 for vacating the orders for ex parte proceeding was taken up by the trial Court and the same was once again rejected. Consequently, the written statement filed by the defendants/respondents was also rejected. On the other hand, the trial Court accepted the evidence on affidavit filed by the petitioner’s witness (P.W. 1) and allowed the respondents to cross-examine the petitioner’s witness on the next date fixed i.e., 20.04.2004.
8. On 20.04.2004, the matter could not be taken up in view of the holiday declared by the Government and the matter stood postponed to 26.04.2004 for necessary orders. Thereafter, the matter was fixed for cross-examination on 30.07.2004. it will be pertinent to mention here that while fixing the matter on 17.03.2004 for cross-examination of P.W. 1, the trial Court did not close the petitioner’s evidence.
9. On 30.07.2004, the petitioner could not produce its witness (P.W. 1), for cross-examination because of his transfer to Ahmedabad and accordingly, prayed for an adjournment. The learned Civil Judge while refusing to grant adjournment also dismissed the suit after expunging the evidence of P.W. 1. This impugned order dated 30.07.2004 has been passed in reference to Order 17, Rule 1 C.P.C. holding that the petitioner is not entitled to get more than 3 adjournments during hearing. Being aggrieved by this order, the petitioner has invoked the jurisdiction of this Court under Articles 226/227 of the Constitution of India.
10. The petitioner has urged, inter alia, the following grounds towards assailing the legality and validity of the aforesaid order dated 30.07.2004 passed by the learned Civil Judge in Title Suit No. 55/1996 filed by the petitioner against the respondents:
I. For that the learned Court had committed an error apparent on the face of record inasmuch as the learned Court below had decided to proceed with the cross-examination of the petitioner’s witness without closing the witness of the petitioner. Moreover, the learned Court below allowed the Respondents Nos. 1 to 4 to take part in the hearing of Title Suit No. 55/96 without realization of the costs which was imposed upon the said respondents.
II. For that the learned Court below erred tin law in passing the impugned order dated 30.07.2004 by resorting to the provisions of Order 17, Rule 1 C.P.C. in view of the fact that 17.03.2004 was the first date of hearing and, thereafter, the petitioner had sought only one adjournment i.e., on 30.07.2004.
III. For thaj the learned Court below erred in law in construing the meaning of first hearing, which means the date when the Court applies its mind when the issues are settled or evidence is taken.
IV. For that the learned Court below committed manifest error in law and had exceeded the jurisdiction so vested upon it while passing the impugned order dated 30.07.2004 inasmuch as the learned Court below while rejecting the petitioner’s application for adjournment on 30.07.2004 ought to have resorted to the provisions of Order 17, Rule 3(a).
V. That the petitioner respectfully states and submits that in view of the failure of the petitioner to perform an act necessary for the further progress of the suit for which time was granted although the petitioner was represented in the case, the learned Court below ought to have resorted to the provisions of Order 17, Rule 3(a) in view of the fact that the said provision provides that notwithstanding any default the Court should proceed forthwith to decide the suit but does not contemplate that the suit should be decided forthwith. In that view of the matter the learned Court below erred in dismissing the Title Suit No. 55/96 by resorting to the provisions of Order 17, Rule 1 which is not even remotely attracted in the facts and circumstances of this instant case.
VI. That the petitioner respectfully states and submits that the learned Court committed manifest error in passing the impugned order dated 30.07.2004 by resorting to the provisions of Order 17, Rule 1 which is remotely applicable in the fact and circumstances of this instant case inasmuch as the said provisions only provides that ‘no such adjournment shall be granted more than 3 (three) times to a party during hearing of the suits but does not provide for remedy as regards the dismissal of the suit if more than 3 adjournments are granted.
VII. That the petitioner states and submits that since no issue has been framed by the learned Court below in the case in hand and as such the first hearing of the aforesaid case took place on 17.03.2004 when the first evidence was adduced by the petitioner before the learned Court below. In that view of the matter, the impugned order dated 30.07.2004 suffers from severe illegality and as such the same is liable to be set aside and quashed.
VIII. That the petitioner respectfully states and submits that the learned Court below while passing the impugned order dated 30.07.2004 failed to appreciate the fact that the petitioner is a nationalized bank and the subject matter of the suit is recovery of public money.
11. Mr. D. Das, learned Counsel for the plaintiff-petitioner as well as Mr. S.P. Roy, learned Counsel representing the respondents have made their elaborate submissions in reference to various provisions of the C.P.C. and the case laws. While it was argued by Mr. Das, learned Counsel for the petitioner that even if adjournment prayed for was not granted to the petitioner, the trial Court could not have dismissed the suit, but ought to have proceeded to decide the same on merit on the basis of the materials available on record. On the other hand, Mr. Roy, learned Counsel for the respondents submitted that upon failure of the petitioner to produce its witness for cross-examination, the trial Court had no option than to dismiss the suit while refusing to grant further adjournment in view of the expiry of more than 3 dates of hearing. He further submitted that apart from there being no infirmity in the impugned order, the instant application filed under Articles 226/227 of the Constitution of India is also not maintainable, there being alternative remedy of preferring appeal against the impugned order. According to him, the impugned order constitutes decree and accordingly is appellable. He has also raised objection relating to very maintainability of the suit since according to him, it had abated in view of the expiry of the defendant-Respondent No. 3 and his non-substitution by the petitioner.
12. Countering the technical plea raised by Mr. Roy, learned Counsel for the respondents, Mr. Das, learned Counsel for the petitioner submitted that as regards the plea of abatement of the suit having been raised for the first time and the written statement in the suit having been filed by all the respondents, the plea is not at all tenable. According to him, the death of the defendant No. 3 having not been disclosed and the written statement having been filed on behalf of all the defendants on 17.03.2004 and there being non-compliance of the duty cast on the respondents in terms of Order 22, Rule 10A CPC, such plea now being raised is not at all tenable. According to him, the death of one of the defendants cannot lead to abatement of the suit inasmuch as the suit is primarily against the partnership firm being represented by its partners and even if one of the partners had died, the firm still exists being represented by other partners.
13. As regards the plea of non-maintainability of the petition under Articles 226/227 of the Constitution in view of the alternative remedy of appeal, Mr. Das, learned Counsel for the petitioner submitted that no appeal lies against the impugned order and the same cannot be said to be a decree passed. According to him, it is a fit case for exercising the power and jurisdiction under Article 226/227 of the Constitution of India.
14. Both the learned Counsel for the parties have placed reliance on various decisions in support of their arguments. Mr. Das, learned Counsel for the petitioner has placed reliance on the following decisions:
(1) : Surya Dev Rai v. Ram Chancier Rai.
(2) : Chhelaram v. Manak.
(3) : B. Janakiramaiah Chetty v. A.K. Parthasarathi.
(4) : Mahuka India v. Kamakshya Singh Deo.
(5) : Ramesh Chand v. Anil Panjwani.
15. Mr. S.P. Roy, learned Counsel representing the respondents, on the other hand, has placed reliance on the following decisions:
(1) 2005 AIR SCW 2346 : Kailash v. Nanhku.
(2) 2005 AIR SCW 3653 : A. Jitendranath v. Jubilee Hills Corporation House Bld. Soc.
(3) : Shankar Lal v. Sakil Ahmed.
(4) : Mithailal Dalsaugar Singh v. Annabai Devram Kini.
(5) AIR 1978 Gau. 17 : (Muktarei Devi v. State of Manipur and Ors.
(6) : Shamsher Singh v. Rajender Prasad.
(7) AIR 1989 AP 08 : Silla Jagannadha Prasad v. Smti. Silla Lalitha Kitmari.
(8) : Madula India v. Kamakshya Singh Deo.
(9) : Union of India v. Bhagwan Dass.
(10) : Dineshwar Prasad v. Parameswar Prasad.
(11) : Smt. Krishna Devi v. Raj Kishore.
(12) : Salem Advocate Bar Association v. Union of India.
(13) : Chandi Prasad v. Jagdish Prasad.
(14) : Surya Dev Rai v. Ram Chander Rai.
(15) (1996) 3 GLT 469 : Deputy Commissioner. Goalpara v. Nazimuddin Ahmed.
16. Before proceeding to deal with the case laws as cited by the learned Counsel for the parties and as ratio of any decision must be understood in the background of facts of that case and as the case is only an authority for what it actually decides, and not what logically follows from it, I now proceed to deal with the case in hand in reference to the provisions of the C.P.C. and their applicability or otherwise in the given fact situation.
17. Before passing the impugned order on 30.07.2004, the learned Civil Judge accepted the evidence on affidavit filed by P.W. 1 namely, Sri Pritom Dev Roy, but on the next date fixed for cross-examination, upon nonappearance of the said witness, the learned Civil Judge has expunged the evidence and taking recourse to Order 17, Rule 1 C.P.C. dismissed the suit. It is the case of the petitioner that while fixing the matter for cross-examination of P.W.1, by order dated 17.03.2004, the learned Civil Judge had never closed the evidence of the plaintiff-petitioner and for that matter, even in absence of P.W. 1 and non-acceptance of plea for adjournment, the evidence on the part of the plaintiff could not have been closed towards dismissal of the suit.
18. In the impugned order dated 30.07.2004, the learned Civil Judge has indicated the dates on which adjournments were prayed for and granted to the plaintiff-petitioner. However, the facts remained that the evidence on affidavit filed by the P.W. 1 after those dates was accepted on 17.03.2004 fixing the case for cross examination of the witness (P.W. 1) on the next date fixed. Thus, so far as cross-examination part of the P.W. 1 is concerned, 30.07.2004 was the first date. As per the provisions of Order 17, Rule 1 C.P.C, the Court may, if sufficient case is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing, provided that no such adjournment shall be granted more than 3 times to a party during hearing of the suit. Order 17, Rule 2 C.P.C. provides for costs of adjournment. Under proviso (b) of Order 17, Rule 2 C.P.C. no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.
19. Provisos to Order 17, Rule 1(1) and Order 17, Rule 1 (2) have to be read together. So read, Order 17 does not forfeit grant of adjournment where circumstances are beyond the control of the party. In such a case, as has been held by the Apex Court in Salem Advocate Bar Association (supra), there is no restriction on the number of adjournment to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained the 3rd adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained 3 adjournments. The limitation of 3 adjournments would not apply, as has been held by the Apex Court in the aforesaid case, where adjournment is to be granted on account of circumstances which are beyond the control of a party. It has further been held by the Apex Court that even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provisions of higher costs which can also include punitive cost in the discretion of the Court, adjournment beyond 3 can be granted, having regard to the injustice that may result on refusal thereof with regard to the peculiar facts of a case.
20. It is in the above context, the particular ground urged by the petitioner that the learned Civil Judge while passing the impugned order dated 30.03.2004 failed to appreciate the fact that the petitioner is a nationalized Bank and the subject matter of the suit was for recovery of public money will have to be noted. The adjournment was prayed for on account of the transfer of P.W. 1 to Ahmedabad. When the particular officer was not available in Guwahati because of his transfer to Ahmedabad, adjournment was prayed for and the same was an adequate ground.
21. It will have to be born in mind that the petitioner is a nationalized Bank and the suit was filed for realization of substantial amount from the respondents. As has been observed by the Apex Court in Ramegowda v. Spl. Land Acq, Officer , any litigation to which the Government is a party there is some aspect which, perhaps, cannot be ignored. Dealing with the question of condonation of delay, it has been observed by the Apex Court that if appeals brought by the Government are lost for such defaults, no person is individually affected, but what in the ultimate analysis, suffers is the public interest. It has further been observed that the decisions of Government are collective and institutional decisions and do not share the characteristic of decision of private individuals. In such circumstances, it was observed that certain amount of latitude is, therefore, not impermissible. It was also observed that it would be unfair and unrealistic to put the Government and private parties on the same footing in all respects.
22. While it is true that the aforesaid decision of the Supreme Court was in respect of the delay in preferring appeal by the Government, but the observations thereof in respect of both the elements involved, i.e., default on the part of the Government, in such matters ultimately lead to sufferings of public interest and that some amount of latitude to a party representing the Government not impermissible, in any view, are applicable to the case in hand.
23. In the instant case, adjournment sought for was on account of absence of P.W.1, an officer of the Bank who was transferred to Ahmedabad. The trial Court without discussing anything as to whether such ground constituted a sufficient and/or unavoidable ground for adjournment, simply falling back on Order 17, Rule 1 C.P.C. rejected the prayer for adjournment and proceeded with the matter towards expunging of the evidence adduced by P.W.1 and dismissal of the suit. Such dismissal of the suit, irrespective of merit of the suit for realization of the amount purportedly due to the petitioner-Bank by the respondents, if eventually would have been allowed finally, necessarily has led to a situation, in which it is the public interest and no individual interest which has suffered.
24. The petitioner is not an individual, but is a nationalized Bank and its works are conducted and performed by its officers and employees. The Bank by itself cannot depose before the Court. P.W. 1 was one of its officers who submitted affidavit-in-chief. On the date of cross-examination, he could not be present as he was transferred to a far off place, i.e., Ahmedabad in the State of Gujarat. It was on that count, adjournment was prayed for, but the learned trial Court without arriving at any conclusion as to the sufficiency or otherwise of the ground urged for adjournment, simply fell back on the provisions of Rule 1, Order 17 CPC ignoring the provisions of Rule 2, Order 17 CPC and passed the impugned order towards rejection of the prayer for adjournment. It also failed to appreciate that after filing of the evidence in chief by affidavit the date on which the impugned order was passed was the first date fixed for cross-examination.
25. It has been held by the Apex Court in Salem Advocates Bar Association (supra), the limitation of 3 adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party, In the said case, it has been further observed that even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provisions of higher costs which can also include punitive cost in the discretion of the Court, adjournment beyond 3 can be granted having regard to the injustice that may result on refusal thereof with regard to the facts involved in a case.
26. In Kailash v. Nanhku , the Apex Court observed thus–
All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar, are pertinent:
The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence–processual, as much as substantive.
27. In the State of Punjab and Anr. v. Shamlal Murari and Anr. , the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that “processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. “In Ghanshyam Dass and Ors. v. Dominion of India and Ors. , the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to sub-serve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle.
28. In the instant case, after acceptance of examination-in-chief filed by the petitioner through P.W. 1, the next date was fixed for his cross-examination, on which date, because of his transfer to Ahmedabad, he could not appear before the Court. Accor Fingly, an adjournment was prayed for. However, the same was rejected on a reference to earlier adjournments prayed for and granted, prior to filing of the examination-in-chief and taking recourse to Order 17, Rule 1 C.P.C. It is in this context, the observations made by the Apex Court in Salem Advocates Bar Association’s case and the distinction between the words ‘at any stage of the suit’ and during hearing of the suit’ appearing in Order 17, Rule 1 C.P.C. will have to be understood. While proviso to Order 17, Rule 1 C.P.C. restricts adjournment beyond 3 times during hearing of the suit, Order 17, Rule 1 C.P.C. provides for granting adjournment upon showing sufficient cause, at any stage of the suit. In the instant case, when the impugned order was passed on 30.07.2004, the suit was at the stage of cross-examination of P.W. 1 and that was the first date for the purpose.
29. Once it is held that having regard to the facts and circumstances involved in the case, the petitioner-Bank could show sufficient cause for adjournment and having regard to the fact that tire vigour of impermissibility envisaged under Order 17, Rule 1 C.P.C. has somewhat been diluted, in Salem Advocates Bar Association’s case, holding thatthe said provision does not forfeit grant of adjournment beyond 3 dates, the impugned order dated 30.07.2004 passed in strict compliance of the said provision on a plain reading of Order 17, Rule 1 C.P.C. without determining sufficiency or otherwise of the cause shown by the petitioner is liable to be interfered with, which I accordingly do.
30. Once the impugned order stands set aside for the reasons stated above, the arguments advanced by the learned Counsel for the parties about the propriety or otherwise of the learned Civil Judge to dismiss the suit and expunction of the evidence of P.W. 1, even on failure of the petitioner to produce P.W. 1 for cross-examination and in reference to the provisions of the Code of Civil Procedure, such as Section 2, 96, Order 8, 9, 15, 17, 18 etc. need not be gone into. Likewise, the decisions in support of such arguments also need not be discussed.
31. This now leads us to the pleas raised by the learned Counsel for the respondents that in view of the death of the defendant-respondent No. 3 way back in 1998 and in absence of substitution thereof by the plaintiff-petitioner the whole suit has abated and that the impugned order being in the form of a decree is only appellable and thus, the application under Articles 226/227 of the Constitution of India is not maintainable.
32. As regards the plea of abatement of the suit, the records have revealed that even on 17.03.2004, when the defendants-respondents filed their written statement, although not accepted by the trial Court, the fact of death of the defendant No. 3 was not disclosed. It was only during me course of hearing of the instant application, the learned Counsel for the respondents have disclosed the fact of death of the defendant No. 3 and argued that the respondent No. 3 having not been substituted, the suit had abated.
33. Order 22, Rule 10A C.P.C. casts a duty to the pleader appearing for a party to the suit to inform the Court about the death of a party. It is only upon the furnishing of such information, the Court shall give notice of such death to the other party. In the instant case, there is no dispute that at no point of the proceeding of the suit, any information was furnished regarding the death of the defendant-respondent No. 3. Even the written statement was filed on 17.03.2004 on behalf of all the defendants/respondents. Thus, this plea is wholly misconceived.
34. There is also another aspect of the matter. The suit is mainly against the defendant-respondent No. 1. Other respondents are partners of the partnership firm i.e., the defendant-respondent No. 1. Even in case of death of one its partners, the firm being represented by other partners, it cannot be said that the suit had abated against all the defendants and for that matter, against the firm itself. The firm is still in existence represented by its other partners who are very much parties to the proceeding and thus, the argument that the whole suit had abated, cannot be accepted.
35. It has been argued that the instant application under Articles 226/227 of the Constitution is not maintainable, there being appellate provision to prefer appeal against the impugned order. While according to the respondents The impugned order is a decree within the meaning of Section 2(2) CPC. The learned Counsel for the petitioner has argued that the impugned order is not within the purview of the definition under Section 2(2). Section 2(2) defines decree in the following manner:
“decree” means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
36. Section 2(9) defines judgment. “Judgment” means the statement given by the Judge of the grounds of a decree or order. Section 2(10) defines “judgment-debtor” as any person against whom the decree has been passed or an order capable of execution. ‘Order’ as defined within Section 2(14) means the formal expression of any decision of a Civil Court which is not a decree. Thus, every order passed by a Civil Court cannot be said to be a decree. “Decree” defined under Section 2(2), means formal expression of a adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. However, it will not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default.
37. Order 20 CPC deals with judgment and decree. After filing of a case, judgment is to be pronounced on each issue. The decree shall agree with the judgment and its contents are to be as indicated in Rule 6. Rule 6A provided for preparation of decree.
38. Order 43 CPC makes provisions for appeal from the orders indicated therein. As per the said provisions, no appeal lies against an order passed under Order 17, Rule 1 CPC. On the other hand, any order of dismissal for default, shall not be included as decree. By the impugned order, there has not been any formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. The impugned order passed by the learned Civil Judge cannot be said to be a decree so as to contend that the same is appellable. Section 96 provides for appeal from original decree. But once it is held that the impugned order is not a decree, there is no question of preferring appeal against the same.
39. In Surya Dev Rai (supra), the Apex Court has discussed the ambit and scope of jurisdiction to be exercised under Articles 226/227 of the Constitution of India. It has been observed that the curtailment of revisional jurisdiction the High Court does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of Certiorari to a Civil Court nor has the power of superintendence conferred on the High Court under Article 227 of the Constitution taken away or whittled down. Inpara-38 of the judgment, the matters frequently arise before the High Court have been summarized. Such summarization includes the writ of Certiorari under Article 226 of the Constitution for correcting gross errors of jurisdiction and supervisory jurisdiction under Article 227 of the Constitution for keeping the subordinate Courts within bounds of their jurisdiction. In para-39 of the judgment, it has been held that the High Court is to exercise self restraint in exercising such power. It has been observed that although such power is there, but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.
40. In the instant case, having regard to the facts and circumstances involved and also in view of the fact that the impugned order cannot be said to be a decree providing remedy of appeal, I am of the considered opinion that the interference to the same is called for by exercising power under Articles 226/227 of the Constitution of India which I accordingly do. Once such power is exercised, holding that the impugned order is not appellable one and can be interfered with exercising the power and jurisdiction under Articles 226/227 of the Constitution of India, consequence of entertaining the application, such as deprivation of admissible right of the respondents in an appeal proceeding need not be gone into. While it is true that in case of appeal proceeding, the respondents therein are entitled to certain rights which may not be available in an application under Articles 226/227 of the Constitution of India, but once it is held that the impugned order is not an appellable order and the same is liable to be interfered with exercising power and jurisdiction under Articles 226/227 of the Constitution, those aspects of the matter need not detain us. Consequently, the decisions on which the learned Counsel for the respondents have placed reliance in support of the claim are also inconsequential. The decision in Rajasthan case i.e., Chhelaram (supra) has been pressed into service to contend that the impugned order does not conform to the requirement of a decree. It has already been held that the impugned order cannot be said to be a decree.
41. The decision on which Mr. S.P. Roy, learned Counsel for the respondents has placed reliance, are in respect of as to when the hearing in a suit starts, the scope, ambit and jurisdiction of this Court under Articles 226/227 of the Constitution of India, deprivation of admissible right under the provisions of CPC in case of entertaining an application under Articles 226/227 of the Constitution of India in lieu of available remedy of appeal, abatement of a suit, meaning of decree etc. In view of the above findings recorded by me, the decisions through which I have gone through, need not be discussed in detail. Suffice is to reiterate that the ration of any decision will have to be understood in the background of facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follows from it (See Lord Halsbury in Quin v. Leathern 1901 AC 495. There cannot be any dispute in respect of the principles laid down in the said decision. However, in view of my finding that the suit is not abated and that the impugned order is not appellable and amenable to writ and supervisory jurisdiction of this Court and also that the petitioner was entitled to further adjournment having shown sufficient cause, the principles of law laid down in those cases are of no help to the case of the respondents.
42. In view of the above, the writ petition stands allowed by way of setting aside and quashing of the impugned order dated 30.07.2004 passed by the learned Civil Judge (Senior Division) No. 2, Kamrup, Guwahati in Title Suit No. 55/1996. The matter shall now go back to the learned Civil Judge (Senior Division) No. 2, Guwahati for fresh adjudication of P.W. 1. The parties shall now appear before the trial Court within one month from today. Upon such appearance, the learned Civil Judge shall fix a date for cross-examination of P.W. 1 .on which date, P.W. 1. shall invariably appear and the suit shall proceed thereafter in accordance with law.
Writ petition is allowed. Registry shall send down the L.C.R. to the Court of learned Civil Judge (Senior Division) No. 2, Kamrup, Guwahati without any delay.