CRP 318/2010 BEFORE HON’BLE MR. JUSTICE T.VAIPHEI Heard Mr. P.C. Dey, learned Counsel for the petitioners and Mr. S.Das, learned C ounsel for the respondents. The legality of the order dated 16.7.2010 passed by the learned Munsiff, Kokrajh ar in T.S. No. 1 of 2007 by which the application of the petitioner for differi ng cross-examination of the witnesses of the defendants was rejected as called i nto question in this revision. It may be noted that vide order dated 5.8.2010 t he learned Munsiff, Kokrajhar also rejected the application of the petitioner f or vacating order dated 17.7.2010. The trial Court took the view that as it was not a case in which the petitioner could not engage another Advocate, the appli cation of the petitioner for adjournment on the ground that his Counsel had gone to Delhi is hit by the provision of Order 17 Rule 2,proviso (d) of the C.P.C. I t is true that no statement was made by the petitioner in his application to th e effect that there was no time for him to engage another Advocate in such a sh ort time. However, an advance, application was made by him on 12.7.2010 for fi xing another date on the ground that his Counsel would be going to Delhi. Under Order 17,Rule 2 (d) of the Code it is specifically provided that if the Co urt is satisfied that the illness of the Counsel or inability of the Counsel to proceed with the case was put forward, except when the Counsel was engaged in another case as a ground for adjournment , it shall not grant adjournment. The Apex Court had an occasion for consideration the scope of proviso (d) to Su b-Rule (2) of Order 17 of the Code in Basir Ahmed Vs. Mehmood Hussain Shah, AI R 1995 SC 1857 held as follows :- (7) THEREFORE, the Court is enjoined to satisfy itself in that behalf. If th e party engages another counsel as indicated therein, then the need for further adjournment would be obviated. The word ’ in time’ would indicate that at least reasonable time may be given when a counsel suddenly becmes unwell. There wou ld be reasonable time for the parties to make alternative arrangement, when suff icient time intervenes between the last date of adjournment and the next date o f trial. In such a case, adjournment on the ground of consel’s ill health could be refused and the party would bear the responsibility for his failure to make a lternative arrangements. Take for instance, a suit was adjourned for trial for a period of one week and the counsel appears to have suddenly become indisposed which should be known to the party. Therefore, the party, in advance, has to mak e alternative arrangement to proceed with the trial engaging another counsel.The word ’ in time ’ would, therefore, indicate that reasonable time would be requi red for making alternative arrangements. (8) IN this case , it is seen that the counsel for the appellant had t o cross-examine the respondent plaintiff. Unless there is time for the new couns el to be engaged for application for his mind to pleadings, issues framed, the evidence already on record, it would be difficult to proceed with the cross- exa mine on the spur of moment. It would be seen that the matter was adjourned from 8-8-1994 to 9-8- 1994. Obviously, during that night the counsel must have falle n ill. Therefore, the party had no time to make alternative arrangements. Engagi ng a new counsel to proceed with trial would be fraught with grave risk and be unrealistic. The Court should have adjourned the case for the next date so as to enable the appellant to have another counsel engaged and given instruction to t he new cojunsel to proceed with the cross- examination in the light of pleadings and the issue framed in that behalf, . What I can gather from the aforesaid observations of the Apex Court is that in the instant case , in applying the aforesaid proviso, the trial Court h as approached the issues in a hyper technical manner while engaging a new counse l, the latter must have sufficient time for application of his mind to the plea dings, issues, framed and the evidence already on record. Experience will show t hat cross-examination on the spur of moment is not advisable as otherwise great prejudice can be caused to the concerned litigant. At the same time, the anxie ty of the trial Court to discourage protracted trial shall also have to be app reciated. A balance has to be struck between the fair trial and speedy trial. I n the view that I have taken, the trial Court has acted with material irregula rity in disallowing the petitioner to cross-examine the witnesses of the defenda nts. Having said that, interest of the respondents shall also have to be kept in mind. For the reasons stated in the foregoing, this revision petition succeeds. The im pugned orders dated 5.8.2010 and 16.7.2010 passed by the learned Munsiff, Kokraj har in T.S. No. 1/2007 are hereby set aside. The petitioner shall pay a cost of Rs. 1,000/- to the respondents on or before 2 2.8.2010. Further proceeding in a suit shall be subject to the payment of the c ost. The learned Munsiff, Kokrajhar, shall allow the petitioner to cross- examin e the witnesses of the respondents as a last chance. The petitioner must coopera te with the trial Court for speedy conclusion of the trial. The Deputy Registrar (Judicial) shall communicate this order to the learned Muns iff, Kokrajhar by Fax today itself for necessary action. This revision petition stands disposed of.