(10) Reverting to the facts of the case in light of the principles of law laid down by the Supreme Court in the above referred cases (supra) qua Order 17 Rule 1 of the CPC, it is quite vivid that on behalf of the plaintiffs, an affidavit under Order 18 Rule 4 of the CPC of Sadhbai & Moharsai was filed on 22.10.2003 and they were present also but as the court’s time was over, they were discharged and again one of the witnesses namely Mohar Sai was present but again he could not be examined and on 15.03.2004 when they were present, the Presiding Officer was on leave, therefore, they could not be examined and when on 8.9.2004 again for want of time, they could not be examined. When they fell sick, they could not appear on 4.1.2005, plaintiffs' opportunity to lead evidence was closed and the suit was dismissed for want of evidence by the trial Court on the same date i.e. 4.1.2005. In my considered opinion, the trial Court was absolutely unjustified in refusing adjournment and rejecting the prayer for adjournment as the plaintiffs have already taken prompt steps by filing affidavit under Order 18 Rule 4 of the CPC and thrice their witnesses appeared before the trial Court for recording their evidence, but for want of time of the court , they could not be cross-examined. The trial has committed illegality in dismissing the suit, which was perpetuated by the first appellate Court by affirming the judgment & decree of the trial Court. Thus, the judgment and decree passed by both the courts below are set aside as finding of fact recorded are perverse. Substantial question of law is answered accordingly.
