CRP 128/2011 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA Heard Mr. S Kataki, learned counsel appearing for the petitioners. 2. The ground assigned in the order dated 21.08.2010 and order dated 22.12. 2010 on review whereby and whereunder the trial Court rejected the prayer of the petitioner seeking to allow the evidence to be filed by other PWs and the atte ndance of PW 1 for cross-examination is the subject matter in this revision pet ition. 3. The learned trial Court has assigned two grounds while rejecting the pra yer as aforesaid holding that the suit was posted for evidence of PWs on 20.05.2 010, 16.06.2010, 09.07.2010, 02.08.2010 and 21.08.2010 for cross-examination of PW 1 whereas the application sought for adjournment was not signed by the engage d counsel and there is an embargo on the court under the proviso of order XVII Rule 1 of the Code of Civil Procedure, more so, when the other plaintiffs could have taken the steps on behalf of PW 1 though he was absent due to his illnes s. 4. The case is taken up for final disposal at the motion stage in view of t he orders passed by the trial Court. Admittedly the plaintiff No.1 filed evidenc e on affidavit on 20.05.2010 and the learned trial Court fixed 02.08.2010 for fi ling evidence on affidavit by other PWs whereas an application for adjournment w as filed seeking extension of time for filing evidence on affidavit by other pla intiffs and for cross-examination of PWs with official witness, with a prayer to fix another date which, however, was rejected fixing 21.08.2010 for cross-exami nation of PWs with official witness. On 21.08.2010, another application was fil ed seeking adjournment of extension of time for cross-examination of PWs. The sa id application was rejected closing the evidence of the plaintiffs fixing 18.09. 2010 for DWs. The said order of rejection was taken up in review being Misc.(J)C ase No. 697/2010 for review of the order dated 21.08.2010 whereof the objecti on was filed and after considering the argument advanced by the parties, learne d trial Court expressed its inability to review the order dated 21.08.2010 an d rejected the review petition on 22.12.2010 which are under challenge in this Court under Article 227 of the Constitution of India. 5. The plaintiffs filed the suit seeking the following reliefs:- a) For ejectment of principal defendant from schedule land removing/dismantling structures illegally raised over the same; b) For sending a precept to the Deputy Commissioner, Kamrup for cancellation of Khatian No. 157 over the land belonging to the plaintiff; c) For recovery of arrear paddy rent since the year 2005 onwards till ejectment of the defendant from the suit land; d) Cost of the suit; and e) Any other relief/reliefs to which the plaintiffs are entitled under the law a nd equity. 6. In order to succeed in the suit the evidence are required to be led in the form of affidavit and the witness who filed the evidence on affidavit are re quired to attend the court for cross-examination as and when the date is fixed. In the instant case, admittedly the case was adjourned on 20.05.2010, 16.06.201 0, 09.07.2010, 02.08.2010 and 21.08.2010 for cross-examination of PWs. However, only PW 1 filed the evidence on affidavit but could not attend the court on 2.08 .2010 for his ailment which was rejected and on review the learned trial Court h as rejected the prayer so made as indicated above. 7. The suit filed by the plaintiffs and in order to get the decree, the pla intiffs must prove their case. The ground assigned by the learned trial Court in rejecting the adjournment on the ground of embargo put on the court by the prov iso of Order XVII Rule 1 cannot be held to be mandatory as it has been held in case reported in (2005) 6 SCC 344 (Salem Advocates Bar Association, T.N. -vs- Union of India & Ors.). Whereas the learned court has not disputed the illness of PW 1 but rejected the prayer on the ground that the other plaintiffs could have taken steps on behalf of PW 1 which was absent in the case and the other ground for rejection was that the application seeking adjournment was not signed by the engaged counsel, though the parties should not be allowed to suffer for the default of their counsel. 8. In the above background, this Court seems it fit to allow the revision p etition setting aside the orders dated 21.8.2010 and 22.12.2010 passed by the le arned trial Court, directing the learned trial Court to allow the plaintiffs to file their evidence on affidavit and thereafter allowing them to ensure their presence for cross-examination as last chance with a cost of Rupees 2,000/- (Rupees Two Thousand) only to be paid to the defendants for causing the delay, f ailing which the court shall proceed with the case. 9. The revision petition is disposed of with the above observations and dir ections.