- (1.) DEVI Prasad Singh, J. Heard Shri Suryakant learned counsel for the petitioner. None present for the opposite parties.
(2.) IN spite of service of notice counter affidavit has not been filed by the opposite parties. The plaintiff/petitioner had filed a suit on 12-4-1979 for recovery of damages. During the course of trial on account of illness of petitioner's counsel, Sri P. C. Agarwal an application dated 11-4-1984 was moved for adjournment of the case, a copy of which has been filed as Annexure No. 1 to the writ petition. However, by the impugned order passed on the same day the petitioner's application for adjournment was rejected by the trial Court and evidence was closed. While passing the impugned order dated 11-4-1984, it was observed by the trial Court that plaintiff himself is in America and it is not possible for him to come and adduce evidence. The application for adjournment will prolong the litigation. At the face of record the application dated 11-4-1984 shows that only one ground taken for adjournment was the illness of plaintiff/petitioner's counsel. There is no material on record as to from where the learned trial Court had gathered the fact that the plaintiff is in America and accordingly he is not in a position to attend the Court. Mere presumption without filing of any objection will not empower the trial Court to brought on record certain materials which were not existing in the form of pleading, necessary for disposal of relevant application. It was not for the trial Court to presume that since plaintiff was not in a position to attend the Court the application for adjournment was moved.
(3.) AS discussed hereinabove, the application for adjournment was moved only on one ground i. e. the illness of plaintiff's counsel. By rejecting the application for adjournment it was not open for the trial Court to travel beyond the relevant material placed on record by the parties necessary for disposal of the application. The trial Court seems to be exceeded its jurisdiction while passing the impugned order. A person residing in foreign country may attend the Court on a date fixed after getting prior information. Adverse inference drawn by the trial Court seems to be passed on unfounded facts and non-existing material. Against the impugned order dated 11-4-1984 a recall application was also moved by the plaintiff/petitioner which was rejected by the trial Court by other impugned order dated 24-4-1984. A perusal of the recall application, filed as Annexure No. 3 to the writ petition, shows that plaintiff petitioner rebutted the observation of trial Court by showing cogent and justified reasons but the same was not considered in its real perspective while passing impugned order dated 24-4-1984.;