' Petitioner had filed suit for possession which was contested by the respondents; issues were framed on 28-3-1997 and the case was fixed for evidence of the petitioner on 7-6-1997; on this date, the Presiding Officer was on leave; thus, the case was adjourned to 21-7-1998 on which date, the position remained same; the case was fixed for the evidence of the petitioner on 30-11-1997. All the witnesses were officials consequently, petitioner had deposited the requisite fee for their summoning. On the said date, they were not in attendance and the case was adjourned to 16-12- 1997. On this date, learned counsel for the petitioner had to appear in P.C.S. Examination starting from 13-12-1997 and, thus, evidence of the petitioner could not be recorded. Petitioner was in attendance in the Court; his statement was not recorded, consequently, his evidence was closed.
On the same day and the suit was dismissed. Appeal filed by the petitioner also met the same fate.
2. Respondents have been served in this case who have failed to appear, therefore, they were proceeded ex parte.
3. Learned counsel for the petitioner states that there was sufficient cause for non-recording proceedings of the evidence of the petitioner on 16-12-1997 as his counsel was not present though he himself was present in the Court and official witnesses had also been served for that date. This has constituted a sufficient cause for adjustment. Both the Courts below have committed material irregularity in ignoring the position as emerges above.
4. Serious prejudice shall be caused to the petitioner. For no fault on his part and, thus, it is in the interest of justice the equity that matter be decided on merits.
5. I intend to agree with the learned counsel for the petitioner that on 16-12-1997, non-appearance of his counsel was due to valid reason; he himself was present in the Court and some witnesses had also been served; consequently, closure of his evidence is in consonance with the principle of justice as also Order XVII, Rule 3, C.P.C. This petition is therefore, allowed; the impugned judgment and decree are set aside. Learned Trial Court shall proceed with the matter after, issuance notices to both the parties.