CRP 63/2007 BEFORE HON’BLE THE CHIEF JUSTICE MR.MADAN B. LOKUR Respondent No.1 has been served. In so far as Respondent No.2 is concerned, notice was sent to this Respo ndent on 3.5.2010 but AD Card has not yet come back. Under the circumstances, Respondent No.2 is deemed to have been served. The petitioner is aggrieved by an order dated 8th February, 2007 passed by the learned Civil Judge, Jorhat in T.S. No.22 of 2005. It appears that the case was listed on that date for cross-examination of the pl aintiff who had filed an affidavit by way of evidence on 4.12.2006. The impugned order shows that the plaintiff had already taken three adjo urnments and a request was made for a 4th adjournment on the ground of inconveni ence of the plaintiff who lives in Delhi. The prayer for adjournment was rejected by the learned Trial Court. The Trial Court then noted that the defendant was absent and therefore, it was held that the defendant has declined to cross-examine the plaintiff. I am unable to appreciate this order. Even if the defendant was absent, the plaintiff himself was not present and so could not have been cross-examined anyway. Under the circumstances, the order passed by the learned Trial Judge on 8th February, 2007 closing the plaintiff’s evidence on the ground that the defen dant has declined to cross-examine is not sustainable under the circumstances. However, since the plaintiff was admittedly not present which is a defen ce on behalf of the petitioner, I am satisfied that the order dated 8th February , 2007 is required to be set aside subject to payment of costs of Rs.1,000/- to the plaintiff. The cost be paid on the next date of hearing before the learned T rial Judge. The suit be listed before the learned Trial court on 3rd February, 2011. Trial Court Records be sent back immediately.