OSA No.11 of 2001 4.3.2008 Present: Mr. Ajay Sharma, Advocate for the appellant. Mr. K.D.Sood, counsel for respondent No.1. This original appeal is directed against the judgement of the learned Single Judge of this Court whereby he has dismissed the suit of the plaintiff under Order 17 Rule 3 CPC. Brief facts necessary for the decision of the appeal are that the appellant here-in-after referred to as the plaintiff filed a suit for recovery of Rs.6,38,000/-. Issues in the suit were framed on 11th September, 1996. Thereafter the matter was listed before the Register (Vigilance) on November 1, 1996. The Registrar (Vigilance) directed that the suit be listed in Court for recording the evidence of the plaintiff on 26th March, 1997. On 26.3.1997 the plaintiff took no step for summoning of the witnesses nor was the plaintiff present in person. On 26th March, 1997 a request for adjournment was on behalf of the plaintiff. This request was allowed by the learned Single Judge. Thereafter, the matter was again fixed before the Registrar (Vigilance). The plaintiff still did not file list of witnesses and therefore, the Registrar (Vigilance) directed that the matter be listed in the Court on 19th April, 1997. On 19.4.1997 when the matter was listed in the Court counsel for the plaintiff made a statement that he only wants to examine the plaintiff and does not want to examine any other witnesses. Thereafter, the matter was listed for recording the statement of the plaintiff on 23rd July, 1997. On 23.7.1997 also the plaintiff was not present and last adjournment was granted subject to payment of costs of Rs.330/- On this occasion, the Court itself fixed the next date for recording the evidence as 31st October, 1997. OSA No.11 of 2001 On 31.10.1997, again the plaintiff was not present and request was made for adjournment on the ground that the plaintiff is unwell and therefore could not attend the Court. This request was rejected on the ground that no material has been placed on record to show that the plaintiff was unwell and also on the ground that on the previous date i.e. 23.7.1997 the Court had granted the last opportunity. Therefore, the suit of the plaintiff was dismissed under Order 17 Rule 3 CPC. Aggrieved against this judgement, the present appeal has been filed. We have heard Shri Ajay Sharma, learned counsel for the plaintiff and Mr. K.D.Sood, learned counsel for respondent No.1. Alongwith appeal a medical certificate has been filed which is purported to have been issued by Dr. Rajinder Parshad to show that the plaintiff Prem Chand was under treatment and had been advised rest from 29th October, 1997 to 14th November, 1997. Without going to the question whether the certificate is correct or not, the record of the Court shows that the plaintiff was aged about 82 years at the relevant time. He was an elderly man. No doubt, the plaintiff had already availed three opportunities to lead his evidence but only the plaintiff was to be examined. In view of the peculiar facts and circumstances of the case, we are of the view that the right of the plaintiff should not have been closed. The dismissal of the suit only on the ground that he could not appear was unnecessarily harsh in the facts and circumstances of the case. The other side could have been easily compensated by payment of costs. OSA No.11 of 2001 Keeping in view the aforesaid facts, we allow the appeal, set-aside the judgement of the learned Single Judge dated 31.10.1997 and restore the suit. It would be pertinent to mention that the plaintiff has died during the pendency of the suit and has been substituted by his legal heirs. We permit any one of the legal heirs to appear as the witness for the plaintiff. Only one opportunity shall be granted and in case the plaintiffs fail to avail this opportunity no further time shall be granted by the Court and the suit shall be dismissed for non-prosecution. Since the valuation of the suit is below 10 lacs, this Court no longer has the jurisdiction to hear the suit. Therefore, the suit is remitted to the Court of the learned District Judge, Kangra at Dharamshala. The parties are directed to appear before the learned District Judge, Kangra at Dharamshala on 21st April, 2008. The Registry is directed to ensure that the records of the case are sent to the learned District Judge well before the date. The District Judge shall fix a date for the evidence of the plaintiff in the month of May itself and as already observed only one date shall be granted for evidence of the plaintiff. This is further subject to the condition that the plaintiff shall pay the defendants on 21st April, 2008 costs assessed at Rs.2500/-. The appeal is disposed of in the aforesaid terms. ( Deepak Gupta) J. March 4, 2008 ( Rajiv Sharma ) J. ™